We do not deem it very material to decide whether the clause in the habendum shall be held to be a condition or a limitation. The clause in question well illustrates what is said in Sheppard's Touchstone, p. 121, that, " conditions at all times have in their drawing so much affinity with limitations that it is hard to discern and distinguish them." But the legal effect of this language clearly is, that when the grantees cease to meet on said land for public worship, and fail to have a meeting-house on the land and to appropriate its use to Congregational or Presbyterian public worship, then their title ceases, and the grantor or his heirs may re-enter and hold the land.
We think, therefore, that the county court was right in holding that the grantor and his heirs had a reversionary interest in the land, and that when the grantees ceased to comply with the terms and conditions upon which the land was granted to them and to use it as specified in the deed, then their right to the land expired, and the reversionary interest of the grantees came into operation as a present and absolute estate in fee.
47 New Hampshire, 488. - 1867. [Reported herein at p. 502.]
12 New York, 121. - 1854. [Reported herein at p. 527.] 1
(6.) In Partition Deeds Between Joint Tenants and Tenants in Common. Scott, J., in
17 Missouri, 13. - 1852.
A number of proprietors of a town, supposing that they have a title to the land on which the town is laid off, make an equal partition of the lots amongst themselves, and mutually convey with warranty. The entire title to the land which is the subject of partition afterwards fails. * * *
After the failure of the first title, one or more of the proprietors acquire a new and distinct title to the land on which the town was laid off, and a former proprietor, who has neither contributed nor offered to contribute anything towards the acquisition of the new title, lays claim to all the lots conveyed to him by the deed of partition. * * *
In the deed on which this action is founded, there are no words of perpetuity used in conveying the estate to Stephen Rector. According to the law in force at that day, the words employed only conveyed a life estate, and the duration of the warranty is only co-extensive with the estate to which it was annexed. The warranty, then, was extinct on the death of Stephen Rector. In 4 Kent, 5, it is said, the word "heirs" is necessary at common law to create, by deed, an estate in fee simple. Further on, he says, that this rule does not apply to a partition between joint tenants, coparceners and tenants in common, nor to releases of right to land, by way of discharging or passing the right, by one joint tenant or coparcener to another. In taking a distinct interest in this separate parcel of the land, the releasee takes the like estate in quantity, which he had before in common. This is a question in which the matter of intent has nothing to do. The law has appropriated a certain word, by which an estate in fee simple can only be created by deed. If that word is omitted, however clear and manifest the intent may be, an estate in fee will not pass. It is conceded that, as between joint tenants and coparceners, a fee may pass by a release without the word heirs, but it is apprehended that one tenant in common cannot release to another. A deed intended as a release between tenants in common, although it cannot have that effect, may yet operate as some other kind of conveyance; but to make it effectual as such to pass a fee, proper words of limitations must be employed. Cruise says, one tenant in common cannot release to his companion, because they have distinct freeholds, but they must pass their estates by feoffment. Vol. 4, tit. 32, ch. 6, § 25. So he says, if one coparcener or joint tenant releases all his right to another, it will pass a fee without the word heirs. lb., ch. 21, § 7. Lomax says that partition between tenants in common who having several and distinct freeholds, might have conveyed to each other by feoffment, might, at common law, have been effected by livery of seisin. The adjustment between them in severalty of the estate, derived to them in common by distinct titles, could only be effectuated by a conveyance, accompanied by that notoriety indispensable to all conveyances at common law. 2 Vol. 96. So, again, one tenant in common cannot release to his companion, because they have distinct freeholds; but they must pass their estates by feoffment, lb. 98. Preston on Abstracts says, when several persons are tenants in common, the title to each share is to be carried on precisely in the same manner as if the title to that share was a title to a distinct farm. 3 Vol. 58. Hilliard says, joint tenants and coparceners may release to each other. In a release of this kind, a fee will pass without words of limitation. The releasee is deemed in law to hold, not by the release, but by the original limitation to all the parties. The release is not an alienation, but a mere discharge of the claims of one to the other. Hence, a fee arises out of the original conveyance. Tenants in common, having distinct freeholds, cannot release to each other. 2 Vol. 300, 301. Bacon says, if there be two joint tenants, and one release to the other, this passeth a fee without the word " heirs," because it refers to the whole fee, which they jointly took and are possessed of by force of the first conveyance. But tenants in common cannot release to each other, for a release supposeth the party to have the thing in demand; but tenants in common have several distinct freeholds, which they cannot transfer, otherwise than as persons who are sole seised. 4 Vol. 455. The books may be traced to the earliest periods, and it will be found, that no author has maintained that one tenant in common can convey to another, in any other way or by a conveyance whose operation is different from those used by feoffers, between whom no such relationship exists. It follows from this that, however conveyances between tenants in common may operate, and they cannot operate by way of release, they must contain words of perpetuity to pass a fee.