Austin v. Calvert

• Decision Date: 11 December 1953
• Citation: 262 S.W.2d 825
• Parties: AUSTIN et al. v. CALVERT et al.
• Court: Supreme Court of Kentucky

Page 825

262 S.W.2d 825

AUSTIN et al. v. CALVERT et al.

Court of Appeals of Kentucky.

Dec. 11, 1953.

W. D. Gilliam, Scottsville, for appellants.

Noel F. Harper, Scottsville, for appellees.

DUNCAN, Justice.

On April 11, 1913, F. L. Austin and wife conveyed to the Allen County Board of Education approximately one acre of land in Allen County, the deed to which contained the following provision:

'and said land reverts to the donor when it ceases to be used for a school house'

By mesne conveyances from F. L. Austin, the appellees, N. P. and Myrtie Calvert, became the owners on July 6, 1921 of a 29 3/4-acre boundary which included the schoolhouse tract. The one-acre tract was abandoned by the Board of Education in 1951. Thereupon, the present controversy arose between the heirs of F. L. Austin and N. P. Calvert and wife concerning the ownership of the abandoned land. The lower court found for the Calverts, and the Austins have appealed.

Appellants contend that the provision in the deed from F. L. Austin and wife to the Board of Education created nothing more than a possibility of reverter in Austin, which, being a mere contingency, is not considered an interest in land and cannot be aliened or sold. Appellees, without attempting to define the interest originally retained by the deed to the Board of Education, rely on KRS 381.210 as authorizing the conveyance in any event.

The definitions which have been used by courts and text writers in defining a possibility of reverter are so numerous and technical in the use of the terms employed that they are more confusing than helpful. In Walker v. Irvine's Ex'r, 225 Ky. 699, 9 S.W.2d 1020, 1025, it was defined as 'an estate after an estate terminable by special or collateral limitations'. It is described in American Law Institute's Restatement of the Law on Property, Volume 2, Chapter 7, Section 154, Page 532, as the estate which remains in the grantor 'when the owner of an estate in fee simple absolute transfers an estate in fee simple determinable.' The later definition was quoted with approval by this Court in Young v. Chesapeake & O. Ry. Co., 291 Ky. 262, 163 S.W.2d 451. In Fayette County Board of Education v. Bryan, 263 Ky. 61, 91 S.W.2d 990, 991, an interest identical to that originally retained by F. L. Austin was described as a 'possibility of reversion.'

At common law, a true possibility of reverter was not alienable. The reason given in support of the rule was that it is not a vested interest. It was considered, as its title connotes, a mere possibility which may or may not ripen into the right of re-entry. 33 Am.Jur., Section 209, page 691, Life Estates, Remainders and Reversions. In Walker v. Irvine's Ex'r, supra, and Young v. Chesapeake & O. Ry. Co., supra, we indicated that a possibility of reverter was not alienable although neither of the cases turned upon that point. On the other hand, we have indicated in a number of cases that an interest identical to that involved here could be conveyed although the distinction between the terms 'possibility of reverter' and 'reversion' was not urged or called...