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 .
A limitation to a man and his heirs, so long as A shall have heirs of his body, or till the marriage of a certain person, or so long as St. Paul's Church shall stand, or a tree shall stand, are among the examples given in the books of an estate which, while descending to the heirs general, is liable to terminate on the happening of some event.71a So, when land is granted for certain purposes, as for a schoolhouse, a church, a public building, or the like, and it is evidently the grantor's intention that it shall be used for such purpose only, and that, on the cessation of such use, the estate shall end, without any re-entry by the grantor, an estate of the kind now under consideration is created.72 It is necessary, it has been said, that the event named as terminating the estate be such that it may by possibility never happen at all, since it is an essential characteristic of a fee that it may possibly endure forever.73
68. Co. Litt. 45b, 214b; 4 Kent. Comm. 105.
69. Liddy v. Kennedy, L. R. 5 H. L. 134; Taylor v. Frohock, 85 111. 584; Pratt v. Paine, 119 Mass. 439; Miller v. Levi, 44 N. Y. 489; Johnston v. King, 83 Wis. 8, 53 N. W. 28; 1 Tiffany, Landlord & Ten. Sec. 12E.
70. Palmer v. Wallbridge, 15 Can. Sup. Ct. 650; Jenkins v. Clyde Coal Co., 82 Iowa, 618, 48 N. W. 970; Goelet v. Spafford, 55 N. Y. 647; Den d. Stedman v. McIntosh, 26 N. C. (4 Ired. Law) 291, 42 Am. Dec. 122; Brown v. Fowler, 65 Ohio St. 507, 63 N. E. 76; Hooks v. Forst, 165 Pa. St. 238, 30 Atl. 846. See 1 Tiffany, Landlord & Ten. Sec. 12f.
71. Ante Sec. 84(a), note 23. 71a. See 2 Blackst. Comm. 109;
4 Kent Comm. 9, 129; Challis, Real Prop. 250 et seq.; 1 Cruise, Dig. tit. 1, Sec.Sec. 75-80; 2 Sharswood & B. Lead Cas. Real Prop. pp. 17-29.
72. Morris Canal & Banking Co. v. Brown, 27 N. J. Law, 13;
If one who has an estate in fee simple creates a determinable fee in favor of another, he has thereafter merely a possibility of reacquiring the land by reason
Gillespie v. Broas, 23 Barb (N. Y.) 370; Board of Education v Inhabitants of Van Wert, 18 Ohio St. 221; First Universalist Soc. of North Adams v. Boland. 155 Mass. 171, 15 L. R. A. 231, 29 N. E. 524; Board of Education for Jefferson County v. Littrell. 173 Ky. 78, 190 S. W. 465.
That a conveyance recites the purpose for which it is expected that the land will be used by the grantee does not render the estate conveyed a determinable fee. Sle-gel v. Lauer, 148 Pa. St. 236, 15 L. R. A. 547, 23 Atl. 996.
As stated above, an estate of this character is called by different writers a determinable or a base or a qualified fee. The term "base fee" is perhaps, more properly applied only to the estate which arises in the grantee of a tenant in tail upon the barring of the issue in tail by any act which is ineffectual to bar the reversion expectant on the estate tail. 4 Kent, Comm. 9; Chal-lis, Real Prop. 61, 325; 2 Shars-wood & B. Lead. Cas. Real Prop. 18. See Fines & Recoveries Act, 3 & 4 Wm. IV. c. 74, Sec. 1, where a "base fee" is expressly so de. fined.
The term "qualified" fee is by Preston and Challis applied to an estate which is limited to a man and certain of his heirs only, as to a man and the heirs of his father; but such an estate need not be here considered, since, as the latter writer says, it has rarely, if ever, occurred. Challis, Real Prop. 269 et seq.; 4 Kent, Comm. 9, note a; 1 Preston, Estates, 449.
73. 4 Kent, Comm. 9; Challis, Real Prop, 251, citing 1 Preston, Estates, 479; First Universalist Soc. of North Adams v. Boland, 155 Mass. 171, 15 L. R. A. 231, 29 N. E. 524. The possibility referred to is evidently, however, of a legal, rather than a physical, character. It is physically impossible that St. Paul's or a tree will stand forever; but the law does not apparently take cognizance of that fact, at least in this connection.
Determinable fees are divided by Mr. Challis into two classes, according to whether the event named as terminating the fee is or is not liable at any time to become "impossible to happen." If it is such an event, the determinable fee is, he says when the event so becomes impossible, enlarged into a fee simple. In the other class of cases, where the event is not liable to become impossible, the estate can never be enlarged into a fee simple except by a release by the person who earlier writers on real property;78 and in this country its existence has been frequently recognized.79
[$93 of the occurence of the contingency named or indicated, this possibility being known as a possibility of reverter.74
The owner of a determinable fee has all the rights of an owner in fee simple, with the same rights of user and power to commit unlimited waste;75 but if he conveys his estate, the grantee takes it subject to the same liability to termination as existed before the grant.76
- Question as. to existence of estate. By a number of writers of the highest authority, it is denied that such an estate as that here considered can, on principle, exist since the passage of the statute of Quia Emptores; their view being, stated in general terms, that, as the whole fee is granted, there is no estate in reversion left in the grantor to entitle him to the possession on the happening of the contingency, and that, since the statute referred to prevents the relation of tenure between the grantor and grantee such as would entitle him to resume possession as by escheat, there is consequently no principle upon which the right of reverter can be supported.77 The existence of such an estate has, however, been assumed by the great majority of the owns the possibility of reverter. Challis, Real Prop. 254. He names as the only case in which the event can become impossible one in which the event is an act to be done or suffered by a living person, the impossibility accruing on such person's death.
74. Challis, Real Prop. 82; 4 Kent, Comm. 10; 2 Sharswood & B. Lead. Cas. Real Prop. 26; First Universalist Soc. of North Adams v. Boland, 155 Mass. 171, 15 L. R. A. 231, 29 N. E. 524; Brattle Square Church v. Grant, 3 Gray (Mass.) 142, 150; Pond v. Douglass, 106 Me. 85, 75 Atl. 320.
75. 1 Cruise, Dig. tit. 1, Sec. 80; Walsingham's Case, Plowd. 557; Challis, Real Prop. 262.
76. 4 Kent, Comm. 10; 1 Preston, Estates, 435; Challis, Real Prop. 262; Riner v. Fallis, 176 Ky. 575, 195 S. W. 1102.
77. 1 Sanders, Uses & Trusts, 208; Leake, Prop. in Land 36, and note (d); Pollock, Land Laws (2d Ed.) 221; Edwards, Prop. Land (4th EL) 36. See Gray, Perpetuities, Sec.Sec. 31-42, 774-788, where this view is presented at length. The same view is apparently taken by Jessel, M. R., in Collier v. Walters, L. R. 17 Eq. 252.
78. See Challis. Real Prop. c. 17, and appendix IV in the same work, where the view is taken that the Statute of Quia Emptores, applying in terms only to estates in "fee simple," means thereby estates in "fee simple absolute."
79. Burlington & C. R. Co. v. Colorado R. Co., 38 Colo. 95, 88 Pac. 154; Loomis v. G. F. Heu-blein & Bro. 91 Conn. 146, 99 Atl. 483; Gibson v. Hardaway, 68 Ga. 370; Friedman v. Steiner, 107 111. 125; Aldred v. Sylvester, 184 Ind. 542, 111 N. E. 914; Des Moines City Ry. Co. v. City of Des Moines, - Iowa -, 159 N. W. 450; Pond v. Douglass, 106 Me. 85, 75 Atl. 320; Reed v. Stouffer, 56 Md. 236, 254; First Universalist Soc. of North Adams v. Boland, 155 Mass. 171, 15 L. R. A. 231, 29 N. E. 524; Lyford v. Laconia, 75 N. H. 220, 22 L. R. A. (N. S.) 1062, 139 Am. St. Rep. 680, 72 Atl. 1085; Board of Chosen Freeholders of Cumberland County v. Buck, 79 N. J. Eq. 472, 82 Atl. 418; Leonard v. Burr, 18 N. Y. 96; Hall v. Turner,
110 N. C. 292, 14 S. E. 791; Slegel v. Lauer, 148 Pa. St. 236, 15 L. R. A. 547, 23 Atl. 996; Halifax Congregational Soc. v. Stark, 34 Vt. 243; Aumiller v. Dash, 51 Wash. 520, 99 Pac. 583. See also Cases cited Gray, Pepetuities, Sec.Sec. 31-40; 1 Sharswood & B. Lead. Cas. Real Prop. 17 et seq.
In some decisions, a statutory dedication of land for a particular public use is considered to create an estate of this character in the public, subject to termination upon the cessation of such use. Board of Education v. Inhabitants of Van Wert, 18 Ohio St. 221; Lithgow v. Pearson, 25 Colo. App. 70, 135 Pac. 759; Gebhardt v. Reeves, 75 111. 301; Matthiessen & H. Zinc Co. v. City of La Salle, 117 111. 411, 8 N. E. 81, 2 N. E. 406; Hooker v. Utica & M. Turnpike Road Co., 12 Wend. (N. Y.) 371. See People v. White, 11 Barb. (N. Y) 26; Thayer v. McGee, 20 Mich. 195. Contra, Pettingill v. Devin. 35 Iowa, 344.
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