YOUNG v. CASS, 255 Ga. 508

Per curiam. Cass sued Young in an action to quiet title to a parcel of land located in Carroll County. Young counterclaimed for specific performance of an option to purchase the parcel of land. The claim and counterclaim turned upon the validity of the option. Both parties filed motions for

summary judgment. The trial court held the option violated the rule against perpetuities and was void. The court granted

summary judgment to Cass and denied Young’s motion. We reverse and remand. We must decide if the following provision contained in an option to purchase land violates the rule against perpetuities: “This Option shall extend for a period of 90 days beyond the death of the survivor of the two life tenants (Opal Brumbelow and L. C.

Brumbelow, the mother-in-law and father-in-law of Cass), except that, if Grantor shall fail to notify Grantee of the death of said survivor of said life tenants, then said period shall extend 90 days beyond such time as Grantee is notified.” Cass and Young entered into an agreement on March 21, 1967, regarding two adjoining parcels of land. Cass agreed to sell the first parcel to Young presently. Cass also agreed to offer the second parcel for sale to Young for $9,000 “in the event of the consummation of this contract.” The sale of the first parcel was consummated.

In connection with the closing, on June 17, 1967, Cass executed an option to sell the second parcel to Young. It is this option which contained the language quoted above and which became the subject of this litigation. The last of the Brumbelows to die was Opal, and she died May 29, 1983. Cass did not notify Young of this event, but Young learned the land was being offered for sale in October 1983, whereupon he notified Cass of his readiness to perform the option. This litigation followed with the filing of the complaint by Cass on June 14, 1984. 1.

The rule against perpetuities in Georgia is stated in OCGA § 44-6-1 (a): “Limitations of estates may extend through any number of lives in being at the time when the limitations commence, and 21 years, and the usual period of gestation added thereafter. The law terms a limitation beyond that period a perpetuity and forbids its creation.

When an attempt is made to create a perpetuity, the law will give effect to the limitations which are not too remote and will declare the other limitations void, thereby vesting the fee in the last taker under the legal limitations.” The first time period expressed in the option, “this option shall extend for a period of 90 days beyond the death of the survivor of the two life tenants. . . .” is within the time allowed by the rule. There are two measuring lives, both in being at the time of the execution and delivery of the option.

Added to this is a period of 90 days, well within the 21 years plus the usual period of gestation of the rule.

The option continues however and adds an exception, “. . . except that, if Grantor shall fail to notify Grantee of the death of said survivor of said life tenants. . . .” This language recognizes the possibility that grantor may fail to notify grantee, and goes on in the following words to make provision for that possible event: “. . . then said period shall extend 90 days beyond such time as Grantee is notified.” As we interpret this language it requires notice, but fails to fix a time for performance in giving notice.

Under the circumstances a reasonable time is to be implied which in no case may exceed 21 years from the death of the last survivor. Read v. GHDC, Inc., 254 Ga. 706 (334 SE2d 165) (1985). Thus the rule is not violated. 2. Cass contends that even if the rule against perpetuities does not render the option void, Young did in fact receive notice of the death of the survivor of the two tenants, yet failed to act within 90 days. Cass also contends that no proper tender of the purchase price was made by Young. The court below did not resolve these two issues.

We must remand to the trial court for a determination of these issues which may involve disputed facts. Judgment reversed and remanded. All the Justices concur, except Clarke, Gregory and Bell, JJ., who concur specially. The option was originally made to The Place, Inc., a corporation which thereafter assigned its rights to Young.