Clark's possibility of reverter is not invalid for remoteness. It has been expressly held by this court that such possibility of reverter upon breach.of a condition subsequent is not within the rule against perpetuities. Tobey v. Moore, 130 Mass. 448; French v. Old South Society, 106 Mass. 479. If there is any distinction in this respect between such possibility of reverter and that which arises upon the determination of a qualified fee, it would seem to be in favor of the latter. But they should be governed by the same rule. If one is not held void for remoteness, the other should not be. The very many cases cited in Gray, Rule against Perpetuities, §§ 305-312. show conclusively that the general understanding of courts and of the profession in America has been that the rule as to remoteness does not apply; though the learned author thinks this view erroneous in principle.
(2.) Fees Upon Condition. (a.) In general.
12 New York, 121. - 1854.
Ejectment to recover certain lands conveyed by one Dederer to the Hudson and Delaware Railroad Co. and by that company to this defendant under authority of statute.
Nicoll has succeeded to Dederer's interest in the premises, subject to the rights of the railroad company, and now claims to be entitled to the lands freed from such rights because of an alleged breach of a condition under which the railroad company held. Further facts appear in the opinion. The last judgment below was for defendant. Plaintiff appeals to this court.
Parker, J. - The grant from Dederer to the Hudson and Delaware Railroad Company, bearing date the first day of July, 1836, was made to that company " and their successors." Under that grant, there can be no doubt the Hudson and Delaware Railroad Company took a fee. The words of perpetuity used would have been sufficient to describe a fee, even under the most strict requirements of the common law.
The company had ample power to purchase lands. It was a power incident at common law to all corporations, unless they were specially restrained by their charters or by statute. 2 Kent, 281; Co. Litt. 44a., 300b.; 1 Kyd. on Corp. 76, 78, 108, 115; 3 Pick. 239. And in this case the power was expressly conferred by the ninth section of the charter, Sess. Laws of 1835, p. 113; and by the sixteenth section there were given to it the general powers conferred upon corporations, 1 R. S. 731, one of which is that of holding, purchasing and conveying such real estate as the purposes of the corporation may require. But if no words of perpetuity had been used, the grantor owning a fee, the company would have taken a fee; for the statute is now imperative, that every grant shall pass all the estate or interest of the grantor, unless the intent to pass a less estate or interest shall appear by express terms or be necessarily implied in the terms of the grant. I R. S. 748, § 1.
But it is objected that because, by the act of incorporation, there was given to it only a term of existence of fifty years, Laws of 1835, p. no, § 1, therefore the grant shall be deemed to have conveyed an estate for years, and not in fee. The unsoundness of that position is easily shown. It was never yet held that a grant of a fee in express terms could be restricted by the fact that the grantee had but a limited term of existence. If it were so, a grant could never be made to an individual in fee. because, in his earthly existence, he is not immortal. Under such a rule, a man could never buy a greater interest in a farm than a life estate. It would follow that all estates would be life estates, except those held by perpetual corporations. The intent of parties, fully expressed in a deed, would avail nothing, but all grants would be measured by the mortality of the grantee. It is needless to follow out the proposition further to show its absurdity.
It is not. to the parties to a grant, but to its terms, that we look to ascertain the character and extent of the estate conveyed. Such was the rule at common law, and is still by statute. 1 R. S. 748, § 1. The change made by the statute favors the grantee, where there are no express terms in the grant, by presuming the grantor intended to convey all his estate.
At common law, it was only where there were no express terms, defining the estate in the conveyance, that the term of legal existence of the grantee was deemed to be the measure of the interest intended to be conveyed. Thus, words of perpetuity, such as "heirs or successors," were necessary to convey a fee. A grant to an individual, without such words, conveyed only a life estate. For the same reason a grant, without such words, to a corporation aggregate, Viner's Ab. Estate, L. 3, or to a mayor or commonalty, lb. 3, conveyed a fee, because the grantees were perpetual. The grantee named in such case having a perpetual existence, the estate could not have been enlarged by words of succession.
But this is now changed by our Revised Statutes. Words of inheritance or succession are no longer necessary, and, in their absence, we look, not to the term of existence of the grantee to ascertain the estate, but to the amount of interest owned by the grantor at the time he conveyed. All his estate is deemed to have passed by the grant. 1 R. S. 748, § 1.
All this is applicable only to cases where the grant is silent as to the extent of interest conveyed. Where that interest is expressly described, as in this case, the law never, either before or since our revision, did violence to the intent of the parties, by cutting down the estate agreed to be conveyed to the measure of the grantee's term of existence. It has long been one of the maxims of the law, that " no implication shall be allowed against an express estate limited by express words." Viner's Ab. Implication, A. 5; 1 Salk. 236.
It is erroneous to say that an estate in fee cannot be fully enjoyed by a natural person, or by a corporation of limited duration. It is an enjoyment of the fee to possess it, and to have the full control of it, including the power of alienation by which its full value may at once be realized.