Eugene Collette v. Town of Charlotte Et Als

• Decision Date: 08 January 1946
• Citation: 45 A.2d 203,114 Vt. 357
• Parties: EUGENE COLLETTE v. TOWN OF CHARLOTTE ET ALS
• Court: Vermont Supreme Court

45 A.2d 203

114 Vt. 357

EUGENE COLLETTE v. TOWN OF CHARLOTTE ET ALS

Supreme Court of Vermont

January 8, 1946

November Term, 1945.

Alienability of Possibility of Reverter.

1.The Supreme Court will not consider issues not made by the pleadings but raised for the first time in Supreme Court on appeal.

2.Only so much of the common law of England is adopted in this State as is applicable to the local situation and is not repugnant to our constitution and laws.

3.A determinable or qualified fee, as that term is now generally used, is a fee simple limited to a person and his heirs with a qualification annexed to it by which it is provided that it must determine whenever the qualification is at an end.Because the estate may last forever it is a fee and because it may end upon the happening of the specified event it is what is usually called a qualified or determinable fee.

4.A fee upon condition resembles a determinable fee in that it exhausts the whole estate.It may return to the grantor because of the breach of the condition subject to which it was granted, but it does not return until there has been an entry by the person having that right.

5.A conveyance of land to a town to be used for school purposes followed by the provision that when the town fails to use it for school purposes it shall revert to the grantor, his heirs or assigns, creates a determinable fee.

6.A possibility of reverter is the type of future interest, if it may be properly designated as an interest, which remains in a grantor by deed, or his successor in interest or in a testator's heirs or devisees where, by grant or devise there has been created an estate in fee simple determinable or an estate in fee simple conditional.

7.The doctrine of the ancient common law in respect to maintenance has been much narrowed in this State and the offense itself seems now to be confined to the intermeddling of a stranger in a suit for the purpose of stirring up strife and continuing litigation.

8.The offense of maintenance cannot be based on the conveyance of a possibility of reverter.

9.A possibility of reverter is alienable.

SUIT IN CHANCERY seeking injunction and quieting of title.Decree for the plaintiff.In Chancery, Chittenden County, Cushing Chancellor.

Judgment affirmed.

Clarke A. Gravel for the defendants.

Samuel H. Rothman for the plaintiff.

Present: MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

OPINION

BUTTLES

This is a suit in chancery in which the plaintiff seeks an injunction restraining the defendants from interfering with a small parcel of land in the town of Charlotte, or with the building located thereon, and from selling, disposing of or removing said building, and prays that the court quiet the title to said land.The defendants answered, and after hearing by the chancellor findings of fact were filed and decree was rendered granting the plaintiff the relief prayed for.The case is here on the defendants' exception to the decree.

From the findings it appears that on October 2, 1895, Levi S. Scofield was the owner of a farm a small portion of which he conveyed on that day to the defendant Town by quit claim deed which provided that said land was "to be used by said Town for school purposes, but when said Town fails to use it for said school purposes it shall revert to said Scofield, his heirs and assigns, but the Town shall have the right to remove all buildings located thereon.The Town shall not have the right to use the premises for other than school purposes."It further appears that on September 21, 1909, the farm which embraced the parcel described in Scofield's deed to the Town was conveyed to this plaintiff by warranty deed.The allegations of the complaint which are admitted by the answer indicate that this deed was executed by William E. West and wife, and that there was an intermediate warranty deed of the farm from Scofield to West dated Nov. 4, 1902.It is also found that soon after the conveyance to the Town a school house was erected on the lot conveyed; that classes were taught therein continuously until June, 1936; that the building has been used since that time for storage of school supplies but it has not been used for "school purposes" since the fall of 1936 and that more than a reasonable time had elapsed on June 21, 1944, when the Town sold the school house to the defendant Boisvert.

The defendants' sole contention in this Court, as indicated by their brief and oral argument, is that after his deed to the Town the original grantor had only a possibility of reverter in the school house lot which he could not convey to the plaintiff's grantor, and by his attempted conveyance thereof such possibility of reverter was extinguished and the full fee in the Town confirmed.But this issue is not raised by the pleadings.By paragraph one of their answer the defendants admit that the plaintiff is the owner in fee of the land conveyed to West by Scofield on Nov. 4, 1902.Paragraph 7 alleges that title to the school building remains in the Town and by implication admits that it does not have title to the land.Paragraph 8 (b) denies that the Town failed to remove the building within a reasonable time "after the land on which said building stands reverted to the plaintiff," thus admitting such reversion.It seems clear therefore that the only issue raised by the answer is as to the building and that no question is made as to the title to the land.On the record before uswe would be justified in refusing to consider the issue as to the land which is attempted to be raised for the first time in this Court.Manatee Loan and Mtge Co. v. Manley's Estate, 106 Vt. 356, 363, 175 A. 14;People's Trust Co. of St. Albans v. Finn, 106 Vt. 345, 350, 175 A. 4;Stoddard and Son v. Village of North Troy, 102 Vt. 462, 470, 150 A. 148;McAndrews v. Leonard, 99 Vt. 512, 519, 134 A. 710.

But we pass this technical ground and give consideration to the claims made by the defendants' brief.On the questions involved in this claim there is considerable diversity of opinion among the courts of this country, some of which seems to be due to confusion in the use of terms and some to reluctance of some courts to follow the ancient common law in all respects.It should be remembered that our own statute, P. L. 1234, adopts as the law of this State only so much of the common law of England as is applicable to the local situation and circumstances and is not repugnant to our constitution and laws.

We first inquire as to the nature of the estate that the Town received from Scofield.A. determinable or qualified fee, as that term is now generally used, is a fee simple limited to a person and his heirs with a qualification annexed to it by which it is provided that it must determine whenever the qualification is at an end.Because the estate may last forever it is a fee and because it may end upon the happening of the specified event it is what is usually called a qualified or determinable fee.Univ. of Vt. v. Ward, 104 Vt. 239, 246, 158 A. 773;Conn. Junior Repub. Assn. v. Litchfield, 119 Conn. 106, 174 A. 304, 95 A.L.R. 56, 62;First Univ. Church v. Boland, 155 Mass. 171, 174, 29 N.E. 524, 15 L.R.A. 231;Lyford v. Laconia, 75 N.H. 220, 72 A. 1085, 1089, 22 LRANS 1062, 139 Am. St. Rep. 680.Such an estate has sometimes been called an estate on a limitation, or on a collateral or a conditional limitation, there being authority however to the effect that the term "conditional limitation " properly applies only to a second estate granted at the same time with the first estate.Annot.109 A.L.R. 1148, 1149.

A. fee upon condition resembles a determinable fee in that it exhausts the whole estate.It may return to the grantor because of the breach of the condition subject to which it was granted, but it does not return until there has been an entry by the person having that right.The only practical...