Story Case

Walter Davis, deceased, devised his land to Edward Davis, his son, in this manner: "I hereby give my farm, known as the Four Corners, lying contiguous to the city of Chesterfield, to my son Edward, on condition that he use it as a farm. Should he cease to use it as such, the farm shall pass to John Bourman, as trustee, for all my children, who shall share alike in the proceeds." Four years after the father's death, Edward began to sub-divide the farm into town lots, when Bourman demanded possession and title, for the purposes set forth in the will.

Edward contested this right. Can Bourman enforce his claim?

Ruling Court Case. Warner Vs. Bernett, Volume 31 Connecticut Reports, Page 468

One Tomlinson, desirous of aiding in promoting education, conveyed a piece of land to Bernett and others, on which a high school was to be erected. The deed contained the following provisions: "The conditions of this deed are such, that whenever the premises shall be converted to any other use than those named, the grantees forfeit the right herein conveyed, upon the grantor's paying to them the appraised value of such buildings as may be thereon standing." For about eighteen years, the premises were used for the purposes named in the conveyance of Tomlinson: they were then abandoned and have been used by various parties to private use.

Warner, who represents Tomlinson, now brings this bill, seeking to have the land declared forfeited. It was objected by Bernett that Warner should have shown an entry made, since this was an estate upon a condition.

Mr. Justice Sandford said: "We think it clear that the estate of the grantees was an estate on condition in deed: and that it was an estate upon condition subsequent; and hence, notwithstanding a breach of the condition by reason of which the estate might have been defeated, it must continue to exist m the grantees, with all its original qualities and incidents, until the grantor or his heirs by an entry, have manifested in the way required by law, their determination to take advantage of the breach of condition, to avail themselves of their legal rights, and to reclaim the estate thus forfeited." Judgment was given for Bernett.

Ruling Law. Story Case Answer

We have discussed that a base fee is an estate which determines or comes to an end upon the happening of a given event. An estate upon conditions, however, does not come to an end upon the happening of an event, but provision must be made for re-entry by the person next entitled thereto, and a re-entry must be made by that person, before the estate of the previous owner comes to an end.

The difference between a qualified fee and a fee upon condition may be illustrated by the Story Case.

When the father devised the land to Edward on the express condition that he use it as a farm, this was an estate upon condition, and the trustee first properly demanded possession and the right of re-entry. Had the father devised the land to Edward "so long as it is used for a farm" or "until its use as a farm ceases" this would have been a qualified fee, and the moment this use ceased, the land would have belonged to Bour-man as trustee. Since, in the Story Case, the estate is one upon condition, Bourman, as trustee, has the right of re-entry.