This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
Reference has already been made to the right known as a "possibility of reverter" upon a determinable fee,20 by virtue of which the land will revert to the grantor or his heirs upon the expiration of the estate of the grantee. Of a similar character is the possibility of reverter which exists in any jurisdiction where the common law estate in fee simple conditional21 is still recognized, owing to the failure to to adopt the statute De Donis Conditionalibus.22 In either of these cases the grantor has a right to have the ownership of the land revert to him upon the expiration of the estate granted. Such a right is obviously not an estate, present or future, but is, as its name indicates, a mere possibility of acquiring an estate.23 used in this chapter obviously means more than a mere chance of acquiring property in the future, such as every man has as regards every price of property. It means a prospect of acquiring property, based upon either an antecedent actual ownership or an actually operative legal instrument. See Salmond, Jurisprudence (4th Ed.) 233; Challis, Real Prop. (3rd Ed.) 76 notes. The expression "possibility coupled with an interest" is sometimes applied in this connection, but perhaps "possibility which constitutes an interest" would be mure strictly accurate. Occasionally what we refer to, from considerations of convenience, as a possibility, is actually more than that, it being a certainty, in one and his representatives, of ownership in the future. See post, Sec. 137, note 79.
16. Co. Litt. 215a; 2 Preston, Abstracts, 34; Attoe v. Hem-mings, 2 Bulst. 281.
17. Co. Litt. 49a; Shepard's Touchstone, 230; Watkins, Conveyancing (Preston's Ed.) 123; Note (3) to Thursby v. Plant, 1 Wms. Saund. 234.
18. Watkins, Conveyancing 123, 2 Preston, Abstracts, 85; Com. Dig. Bargain & Sale, B 1, 4; Gilbert, Uses, 87, 271; Chibborne's Case, Dyer, 229a.
19. Ante, Sec. 100.
20. Ante, Sec. 93.
The expression "possibility" as
Sec. 132] extinguished by a release to the holder of the fee 29
Rights of Future Possession.
21. Ante, Sec. 23.
22. As in South Carolina, see Gray, Perpetuities, Sec. 14, and note; Bedon v. Bedon 2 Bailey (S. C.) 231; Deas v. Horry, 2 Hill, Ch. (S. C.) 244.
23. Challis, Real Prop. (3rd Ed.) 83; Fearne, Cont. Rem. 381
Butler's note; Stafford v. Buckley, 2 Ves. Sr. 170.
The suggestion of North, J., in Pemberton v. Barnes (1899) 1 Ch. 544, that a possibility of reverter is perhaps an estate, can hardly be regarded seriously. It is based upon prior judicial statements that a canditional fee is merged in the possibility of reverter in case they come together in one person. (See Doe d. Simpson v. Simpson, 4 Bing. N. Cas. 333; Bishop etc. v. Derby, 2 Ves. Sr. 337, 355), and on the usual assumption that merger can occur only in the case of two estates (see 3 Preston, Conveyancing, passim). In such case the possibility of reverter would seem properly to be regarded as disappearing, but it is questionable whether the process should be termed merger (See 9 Columbia Law Rev. at p. 170.) And that it has been so referred to is but a slight basis for the assumption that a possibility of reverter is an estate. In South Carolina the possibility of reverter on a conditional fee does not disappear in such a case. See Adams v. Chaplin, 1 Hill Eq. 265.
The right of re-entry for breach of a condition, annexed to an estate in fee simple,24 is sometimes referred to as a possibility of reverter. The expression "revert," however, signifies a return to the grantor of the ownership or possession by operation of law, and is not properly applicable to his reacquisition of the ownership or possession by entry or its equivalent. The right of reentry in such a case might', consequently, so long as the condition has not been broken, more appropriately be referred to merely as a contingent right of re-entry.25
The ordinary common law rule that a mere possibility is not assignable25a would seem to apply to a possibility of reverter in connection with a determinable or a conditional fee,26 but there are occasional decisions to effect that such an interest is assignable.27 On the death of the person having the possibility of reverter, it passes, as does the contingent right of re-entry for breach of a condition subsequent,27a to his heir or heirs,27b unless the interest can be regarded as devisable, and it is devised. Whether such an interest is devisable would appear to depend on the construction of the local statute in regard to wills.28 A possibility of reverter may be
24. Ante, Sec. 85.
25. See Finch's Cases on Real Property 866.
25a. Post Sec. 147 (b).
26. Gray, Rule against Perpetuities, Sec.Sec. 13, 14; Challis, Real Prop. (3rd Ed.) 228; North v. Graham, 235 111. 178, 85 N. E. 267; Pond v. Douglass, 105 Me. 85, 75 Atl. 320.
27. Irby v. Smith, 147 Ga. 329. 93 S. E. 877; Fall Creek School Tp. of Madison County v. Shuman, 55 Ind. App. 232, 103 N. E. 677; Green's Adm'r v. Irvine, 23 Ky. L. Rep. 1762, 66 S. W. 278 (semble); Scheetz v. Fitzwater, 5 Pa. St. 126; Angel v. Lauer, 148 Pa. St. 236. See Editorial note, 18 Columbia Law Rev. 84.
27a. Ante Sec. 86(a).
27b. Pond v. Douglass, 105 Me. 85. 75 Atl. 320; North v. Graham, 235 111. 173, 85 N. E. 267, 126 Am. St. Rep. 189, 18 L. R. A. N. S. 624.
28. That the possibility of reverter on a conditional fee cannot be devised, see, Deas v. Horry, 2 Hill Eq. (S. C.) 244; Vaughan v. Langford, 81 S. Car. 282, 62 S. E. 316, 128 Am. St. Rep. 912, 16 Ann. Cas. 91; Gray, Perpetuities. Sec. 9 note 3; 9 Columbia Law Rev. 171. But in Pemberton v. Barnes, (1899) 1 Ch. 544, the English Wills Act was construed as enabling a possibility of reverter upon a conditional fee to be devised.