Bd. of Chosen Freeholders of Cumberland County v. Buck

• Decision Date: 01 February 1912
• Citation: 79 N.J.E. 472,82 A. 418
• Parties: BOARD OF CHOSEN FREEHOLDERS OF CUMBERLAND COUNTY v. BUCK et al.
• Court: New Jersey Court of Chancery

82 A. 418

79 N.J.E. 472

BOARD OF CHOSEN FREEHOLDERS OF CUMBERLAND COUNTY

v. BUCK et al.

Court of Chancery of New Jersey.

Feb. 1, 1912.

Suit by the Board of Chosen Freeholders of Cumberland County against Caroline Buck and others. Decree for defendants, as stated.

The bill is a statutory bill to quiet title to real estate, and is filed by the board of chosen freeholders of the county of Cumberland to quiet title to certain land in the city of Bridgeton, now in the possession of that board, on which land the old clerk's and surrogate's offices of that county stand.

Defendants, as heirs at law of John Buck, deceased, make claim that the recent removal of the county records from the buildings on the lot in question to the new county buildings has been operative to defeat the title of the county and vest an absolute title, as to the undivided one-half thereof, in them.

The lot in controversy was conveyed to the board of chosen freeholders of the county of Cumberland by John Buck and Daniel P. Stratton, who were equal owners as tenants in common, by deed of conveyance, dated September 1, 1815. The deed expresses a consideration of $5 as paid to the grantors.

The words of grant are: "Do give, grant, bargain, sell and convey unto the board of chosen freeholders of the county of Cumberland aforesaid, and to their successors, to and for the use and purpose of building and erecting thereon public offices for the clerk and surrogate of the county of Cumberland, that lot," etc. The words of the habendum clause are: "To have and to hold the said lot of land, and the right to use the alley aforesaid, unto the board of chosen freeholders of the county of Cumberland aforesaid, and their successors, and to their only proper use, benefit and behoof, so long as the same shall be used for the purposes herein before mentioned and no longer." The covenant of quiet enjoyment is as follows: "And that in the quiet and peaceful possession of the same so long as the same shall be used for the purposes aforesaid" the grantors will warrant and defend.

In the year 1815, the clerk's and surrogate's offices were erected by the county on the lot, and have been used as such continuously until recently. The use of the property for the purpose named has now been permanently abandoned.

The rights of the heirs at law of Daniel P. Stratton, the other grantor, have been conveyed to complainant.

Final hearing has been had on a written stipulation of facts.

Roscoe O. Ward and Walter H. Bacon, for complainant.

Hampton & Fithian, for defendants.

BEAMING, V. C. (after stating the facts as above). It is contended in behalf of the county that the language of the deed in question which relates to the use of the premises conveyed must be construed as a mere covenant; but I think it is entirely clear that the deed vests in the grantees a determinable fee. State v. Brown, 27 N. J. Law, 13, 20; 4 Kent's Com. 10. A determinable estate may arise from and be dependent upon a condition, or it may be an essentially different estate arising from a limitation; the latter estate being sometimes called a "conditional limitation." These two well-recognized determinable estates differ materially in their formation and quality, and their essential difference is material in the consideration of the deed in question. In a conditional estate, the happening of the event upon which the estate may be defeated does not, in itself, operate to defeat the estate; some act must yet be done (such as, at common law, making an entry) to defeat the estate. The grantor may never elect to defeat the estate; in such an estate, there is no reverter arising wholly from the happening of the event upon which the estate may be defeated.

In a limitation the estate determines, ipso facto, upon the happening of the event which marks its boundary as to time, and the estate thereupon goes over at once to the grantor by reverter, or to the person to whom it is limited upon the happening of such contingency, if it be limited over. The ordinary technical words by which a limitation is expressed relate to time; the technical words, given in Bacon's Abridgment, tit. "Conditions" (H), vol. 2, p. 117, being: "Dum; dummodo; quandiu; donec; quosque; ubicunque; usque ad; tamdiu." The words by which conditions are created are: "Sub conditione; ita quod; si contingat; proviso." The general rule in determining whether words are of condition or of limitation is stated by Washburn, in his work on Real Property, as follows: "Where they circumscribe the continuance of the estate, and mark the period which is to determine it, they are words of limitation; when they render the estate liable to be defeated, in case the event expressed should arise before the determination of the estate, they are words of condition." The distinction between the two classes of determinable estates here under discussion is elaborately considered in 1 Washburn on Real Property, *457 to *461. This distinction between a condition and a limitation is stated in 2 Blackstone's Commentaries (page 155) as follows: "A distinction is, however, made between a condition in deed and a limitation, which Littleton denominates, also, a condition in law. For, when an estate is so expressly confined and limited by the words of its creation that it cannot endure for any longer time than till the contingency happens upon which the estate is to fail, this is denominated a limitation, as when land is granted to a man, so long as he is parson of Dale, or while he continue unmarried, or until out of the rents and profits he shall have made £500., and the like. In such case the estate determines as soon as the contingency happens (when he ceases to be a parson, marries a wife, or has received the £500.) and the next subsequent estate, which depends upon such determination, becomes immediately vested, without any act to be done by him who is next in expectancy. But when an estate is, strictly speaking, upon condition in deed (as if granted expressly upon condition to be void upon the payment of £40. by the grantor, or so that the grantee continues unmarried, or provided he goes to York, etc.),...