Bonebrake v. McNeill, 43790

• Decision Date: 30 November 1971
• Docket Number: No. 43790,43790
• Citation: 491 P.2d 269,1971 OK 146
• Parties: Myrtle A. BONEBRAKE et al., Plaintiffs in Error, v. Tom McNEILL et al., Defendants in Error.
• Court: Oklahoma Supreme Court

Page 269

491 P.2d 269

Myrtle A. BONEBRAKE et al., Plaintiffs in Error, v. Tom McNEILL et al., Defendants in Error.

No. 43790.

Supreme Court of Oklahoma.

Nov. 30, 1971.

Syllabus by the Court

1. If the habendum clause in a deed provides that the estate vested in the grantee shall at once terminate and revert to the grantor upon the happening of the terminable event prescribed in such clause, at common law, a determinable fee simple estate is granted by the execution of such a deed.

2. Although by Oklahoma Statutory enactment, the distinction between a determinable fee simple estate and a fee simple estate upon condition subsequent has been abolished, the possibility of reverter remaining in the grantor upon the grant of a determinable fee has always been alienable. By such statutory enactment, the interest remaining in the grantor, when either estate is granted, is alienable.

3. An executed quitclaim deed in the form prescribed in 16 O.S.1961, § 41, conveys every interest of the grantor in the land covered thereby, including vested and possible future interests by virtue of the provisions of 16 O.S.1961, § 18.

Appeal from the District Court of Oklahoma County; William S. Myers, Jr., District Judge.

An action for possession and to quiet title to land. Judgment for the defendant and plaintiffs appeal. Affirmed.

Washington & Washington, Tulsa, for plaintiffs in error.

Elliott, Woodard & Rolston, Oklahoma City, for defendants in error, Tom McNeill Ruth Ann McNeill, Eugene Vickrey and Loretha Vickrey.

Johns, Howell & Webber, Midwest City, for defendants in error, Tressa Pybass, Mrs. H. E. Welty, and The Union Ladies Aid Society of Sooner, a corp.

DAVISON, Vice Chief Justice.

This is an appeal from a judgment of the District Court of Oklahoma County, Oklahoma, sustaining the general demurrers of the defendants to the petition of the plaintiffs. The plaintiffs, Myrtle A. Bonebrake and others are the heirs of Henry F. Meloy. The petition alleges that on October 29, 1914, Henry F. Meloy and his wife, Amanda P. Meloy, were the owners in fee simple of 1 acre in the form of a square (12 2/3 rods 12 2/3 rods) in the NW corner of the NW 1/4 of Section 9, Township 11 North, Range 2 West, Oklahoma County, Oklahoma, and on that day Meloy and his wife, Amanda P. Meloy, deeded the 1 acre tract to Union Ladies Aid Society of Sooner, a religious and educational corporation.

The habendum clause in the deed of October 29, 1914, is:

'To have and to hold said described premises unto the said party of the second part for a site to erect a building that the same may be used for religious and educational purposes and in the event that the here-in-before described property shall at any time cease to be used for religious and educational purposes for a period of one year and one, day, or in the event that the party of the second part or their successors should permit said property to be used for other than religious and educational purposes then and in that event such estate as is hereby vested in such party of the second part shall at once terminate and the title revert to the parties of the first part their heirs of assigns, said building never to be dedicated to any sectarian denomination while under the control of said Society.'

The petition further alleges that in 1937, at a time Henry F. Meloy was deceased, each of the heirs of Henry F. Meloy gave a quitclaim deed to Ozro P. Meloy, the son of Henry F. Meloy, covering NW 1/4 of Section 9; that these deeds were given for the sole purpose of clearing the title to the NW 1/4 of Section 9 so that a sale might be affectuated and were not given for the purpose of relinquishing any rights in the 1 acre tract and Ozro P. Meloy did not intend to obtain any rights.

The petition also alleged that on August 15, 1947, Ozro P. Meloy and his wife, Edith Meloy, executed a quitclaim deed to Union Ladies Aid Society of Sooner, a corporation, covering the 1 acre tract and on the 3rd day of March, 1969, the Union Ladies Aid Society of Sooner conveyed by warranty deed to Tom McNeill and Ruth Ann McNeill, husband and wife, and Eugene Vickrey and Loretha Vickrey, husband and wife, as joint tenants; that because of this last sale, the property has been permitted to be used for other than religious and educational purposes, thus effecting a breach of the alleged condition subsequent appearing as the habendum clause in the deed of October 29, 1914, from Henry F. Meloy and wife, Amanda P. Meloy, to Union Ladies Aid Society of Sooner. The plaintiffs allege finally that this breach resulted in the 1 acre tract reverting to the heirs of Henry F. Meloy. There are other allegations in the petition constituting conclusions of law concerning the nature of the estate granted by the execution of the deed of October 29, 1914. A copy of each deed described in the petition is attached thereto as an exhibit.

Plaintiffs pray for a judgment granting them immediate possession of the 1 acre tract, quieting title in plaintiffs, a reasonable attorney's fee and other proper relief.

The defendants are the McNeills and Vickreys, the grantees in the deed of March 3, 1969, Tressa Pybas, Mrs. H. E. Welty and the Union Ladies Aid Society of Sooner, a corporation, hereinafter called 'Ladies Aid.' We shall refer to the parties by their trial court designations. Each of the defendants filed a separate general demurrer except the McNeills and the Vickreys who joined in a separate general demurrer. The trial court upon sustaining each general demurrer entered judgment 'in favor of defendants.'

Plaintiffs, in their attack upon the judgment of the trial court, say first that in 1937 when each of the heirs of Henry F. Meloy executed a quitclaim deed to Ozro P. Meloy covering the NW 1/4 of Section 9 (including the 1 acre tract), the heirs did not have in the 1 acre tract 'an interest sufficiently in esse to be subject to conveyance.'

This argument is based upon the premise that the execution of the deed of October 29, 1914, from Henry F. Meloy and wife, to Ladies Aid covering the 1 acre tract constituted the grant of a fee simple estate upon a condition subsequent and that all the grantors retained was a right of re-entry upon a breach of the condition and that this right is not transferable except to the owner of the property affected thereby. Consequently plaintiffs assert that the quitclaim deed from the Meloy heirs to Ozro P. Meloy did not convey this right of reentry and Ozro had nothing to convey to Ladies Aid by his deed of August 15, 1947, covering the 1 acre tract. We held in Ross v. Sanderson, 63 Okl. 73, 162 P. 709 (1917) that where the right of reentry is clearly implied there is no use for a clause reserving a right of reentry. We there said: 'On the second proposition, the rule seems to be that, where there are express words in a deed which of themselves make a condition subsequent, there is no use of a clause reserving a right of re-entry for breach thereof in order to enable the grantor to avail himself of a forfeiture.'

We do not agree with plaintif...