Feider v. Feider

699 P.2d 801 (1985)

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Nature of the Case

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Facts

In June 1951, several brothers and sisters, who had inherited undivided interests in real property stipulated to a partition of those interests. Francis (D) received a 110-acre parcel that adjoined land owned by his brother, Andrew Feider. Access to Andrew's land was by an easement over D's parcel. Francis and Andrew executed an agreement which, although denominated an option, the parties agree operates as a 'preemptive' right or right of first refusal: In event party of the first part, his heirs or assigns, shall elect to sell the above-described lands he shall first offer the same to party of the second part and said second party may accept or reject such offer at his option. In event party of the second part shall accept such offer he shall, within a reasonable time after acceptance thereof and after approval of title, pay to party of the first part, his heirs or assigns, the agreed price therefor. Twenty-nine years later, Francis (D) sold the property, along with other land, to Karl and Bertha Hecht (Ds). Andrew was deceased by that time. Francis (D) did not first offer to sell to Ps, Andrew's children. Ps sued Ds for specific performance of or damages for breach of the 1951 agreement. Francis (D) answered alleging he intended the agreement to be only a personal commitment to Andrew. Francis (D) further alleged by affirmative defense the agreement is void as an unlawful restraint on alienation and violates the rule against perpetuities. The trial court held the agreement did not satisfy the requirements for real covenants and was thus a personal contract. Ps appealed.