Case v. Dwire

• Decision Date: 21 March 1883
• Citation: 60 Iowa 442,15 N.W. 265
• Parties: CASE v. DWIRE AND OTHERS.
• Court: Iowa Supreme Court

60 Iowa 442

15 N.W. 265

CASE

v.DWIRE AND OTHERS.

Supreme Court of Iowa.

Filed March 21, 1883.

Appeal from Scott circuit court.

Action to quiet the title in plaintiff to an undivided moiety of a lot in the city of Davenport. A demurrer to plaintiff's petition was sustained, and a decree dismissing it was entered, from which she appeals.

ROTHROCK and SEEVERS, JJ., dissenting.

W. K. White, for appellant.

Bills & Block, for appellees.

BECK, J.

1. The petition shows that plaintiff is an heir of Delaney D. Case, deceased, to whom Julius Burwell conveyed the property in question by a deed, the material parts of which are in the following language: “Know all men by these presents, that I, Julius H. Burwell, * * * for and in consideration of natural love and affection for Delaney D. Case, * * * and the further sum of one dollar to me in hand paid, have sold, and by these presents do grant, demise, and convey, unto her, the said Delaney D. Case, the following described premises, to-wit, [describing the lot,] * * * to have and to hold the same unto her, the said Delaney D. Case, as her own and indefeasible estate, to be owned, controlled, managed, and, if desired, sold and conveyed, by her, or those who may act for her as her legal representatives or guardians, during her life-time. This conveyance, however, is made and accepted upon the following express terms and conditions; that is to say, whatever part or parcel of said premises that may be owned or held by the said Delaney D. Case at the time of her decease, or of which she may die seized, or in which she at that time may have any right, title, or interest, shall revert to, vest in, and again become the absolute and indefeasible property of the grantor, * * * or, in case of his death, to his lawful heirs, to the absolute exclusion and inhibition of all other persons or heirs.”

It is alleged that the grantee in the deed, Delaney D. Case, during her lifetime, made no disposition of the lot; that she died May 11, 1871, leaving, as her sole heirs, the grantor in the deed, Julius Burwell, and plaintiff; and that the property has not been sold to pay debts against her estate. The plaintiff claims that the fee-simple title absolute was vested in Mrs. Case by this deed, and that the condition reserving a reversion to the grantor is inconsistent with the deed and repugnant thereto, and is therefore void. It is shown that the grantor, Julius Burwell, claims an interest in the lot adverse to plaintiff's title. A demurrer to plaintiff's petition was sustained, and, plaintiff failing to further plead, a decree was entered dismissing her bill.

2. The deed conveys the real estate to Mrs. Case in fee-simple absolute. The condition, however, is to the effect that whatever part of the premises of which she may die seized, or in which she may at the time of her death retain an interest, “shall revert to, rest [vest] in, and again become the absolute and indefeasible property of the grantor.” The language of the condition no less plainly and conclusively shows the purpose of conveying the fee-simple title absolute, than the granting and habendum parts of the deed. It expresses the thought that the grantee acquired the absolute title, which should revert to and become again vested in the grantor upon the condition expressed. Here, then, is an absolute conveyance in fee-simple, with a condition inconsistent therewith. The deed and condition are in conflict. Which shall stand?

3. The deed vested the fee-simple title absolute in the grantee. Any condition inconsistent therewith would, if enforced, defeat the deed. But the law will uphold the conveyance. The condition must, therefore, be imperative. As the fee-simple title absolute is conveyed by the deed, the condition cannot be enforced, for it is inconsistent therewith. This conclusion is supported by the following cases: McCleary v. Ellis, 54 Iowa, 311; [S. C. 6 N.W. REP. 571;] Ide v. Ide, 5 Mass. 500;Jackson v. De Lancy, 13 Johns. 537;Atty. Gen. v. Hale, Fitzg. 314; Second Reformed Presbyterian Church v. Disbrow, 52 Pa. St. 219.

We think our conclusion is supported by this obvious reason: When the fee-simple title absolute is conveyed, it is not in the power of the grantor to limit the disposition of the real estate, or direct the course of its descent. Such a limitation, if operative, would change the character of the tenure to a conditional fee, or a determinable fee; it would not be a fee-simple. But counsel for defendant insist that the deed in this case did convey an estate for life, with a power to sell and convey the land, which, they insist, is known in the books as a conditional fee, or a determinable fee. This position is in conflict with the plain intention of the grantor, which was to convey the land in fee-simple. The deed must be held to pass all the interest of the grantor. Code, § 1930.

The deed did not create a remainder or a reversion,...