Battistone v. Banulski

• Decision Date: 25 November 1929
• Citation: 110 Conn. 267,147 A. 820
• Court: Connecticut Supreme Court
• Parties: BATTISTONE ET UX. v. BANULSKI ET AL.

147 A. 820

110 Conn. 267

BATTISTONE ET UX. v. BANULSKI ET AL.

Supreme Court of Errors of Connecticut.

November 25, 1929

Appeal from Court of Common Pleas, Hartford County; Thomas J Mulloy, Judge.

Action by Joseph Battistone and wife against Anthony Banulski and others to quiet title. After trial to the court, judgment was rendered for defendants, and plaintiffs appeal. Error judgment set aside, and cause remanded with direction.

Albert S. Bill and Albert C. Bill, both of Hartford, for appellants.

John C. Blackall, of Hartford, for appellees.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS JJ.

BANKS J.

Samuel N. Rockwell owned a farm in the town of Newington, and on February 28, 1859, by warranty deed conveyed a portion of the farm containing 16 rods to the Southeast school district of Newington " so long as said District shall occupy the same for school purposes and no longer." On May 29, 1875, Rockwell conveyed the entire farm, including the portion previously conveyed to the school district, to John H. Poindexter by warranty deed in which no mention was made of any reversionary interest in the school property. The plaintiffs are successors in title of Poindexter to the tract of land conveyed to him by Rockwell. In 1925 the town of Newington abandoned the use of the 16-rod plot for school purposes, and thereupon obtained a quitclaim deed of the plot from the son and only surviving heir of Rockwell. The defendants Banulski are successors in title of the town of Newington to the 16-rod plot. Both parties claim title to the 16-rod plot, the plaintiffs under the warranty deed of the whole farm from Rockwell to Poindexter, and the defendants under the quitclaim deed of the 16-rod plot from his son to the town of Newington.

The deed from Rockwell to the school district granted an estate which was to continue only so long as the property was used for school purposes. If at any time it ceased to be so used the title reverted to the grantor. Because the estate might last forever it was a fee. But since it might be terminated at any time by the discontinuance of such use, it was not a fee simple, but what is usually called a " base determinable, or qualified fee." First Universalist Society v. Boland, 155 Mass. 171, 29 N.E. 524, 15 L.R.A. 231. There remains in the grantor in such a deed a reversionary right contingent upon the happening of the event upon which the fee is limited, which has been called a " possibility of reverter." Loomis v. Heublein, 91 Conn. 146, 149, 99 A. 483. This interest is similar to, if not quite identical with, the possibility of reverter which remains in the grantor of land on a condition subsequent; the only practical distinction being that in the former the estate reverts at once on the occurrence of the event by which it is limited, while in the latter it does not terminate until entry by the person having the right. 23 R. C. L. p. 1103, sec. 7. Warner v. Bennett, 31 Conn. 468. As in the case of executory interests and contingent remainders, such interests were generally held at common law to be inalienable. Warner v. Bennett, supra. In the absence of controlling legislation, such still seems to be the rule in most jurisdictions. 3 Thompson on Real Property, § 2111; 23 R. C. L. p. 1104, § 9. In 1864 the common-law rule that the right of re-entry for condition broken could not be assigned was changed in this state by legislative enactment. Pub. Acts 1864, c. 38. The statute then enacted appears, with slight verbal changes, as section 5111 of the General Statutes: " When, after an estate in real estate has been created by grant or devise upon express condition, the reversion shall,...