Fausett v. Guisewhite

• Decision Date: 13 March 1962
• Citation: 225 N.Y.S.2d 616,16 A.D.2d 82
• Parties: Anna S. FAUSETT, Plaintiff-Appellant, v. Lena GUISEWHITE, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 616

225 N.Y.S.2d 616

16 A.D.2d 82

Anna S. FAUSETT, Plaintiff-Appellant, v. Lena GUISEWHITE, Defendant-Respondent.

Supreme Court, Appellate Division, Third Department.

March 13, 1962.

James L. Burke, Elmira, for plaintiff-appellant.

Garey & Keyser, Elmira, for defendant-respondent (Walter C. Garey, Elmira, of counsel).

Before BERGAN, P. J., and COON, HERLIHY, REYNOLDS, and TAYLOR, JJ.

BERGAN, Presiding Justice.

Almost a century ago Thomas S. Frost and his wife Lydia conveyed by deed to the trustees of School District No. 9 of the Town of Catlin in what is now Chemung County 'a small lot out of the farm' which they then owned.

The deed provided that it 'is made and accepted subject to the following conditions and reservations viz: * * * and whenever the property hereby conveyed shall cease to be used for school and meeting purposes by the inhabitants of said district then and in that case the same shall revert to and become the property of the first part [sic]; upon such reversion said Frost agrees to pay said district the sum of $25 whenever the lands adjoining are enclosed'. The deed was dated June 15, 1868 and recorded the following year.

Ten years later (1878) the grantors conveyed to Charles S. Frost their entire farm, which had been made up of several parcels, and they included in their deed by its general descriptive terms, the land which had been conveyed to the school district in 1868.

Deeds granting title to the property thus conveyed in 1878 to Charles S. Frost were executed from time to time without reference to the school district conveyance until in 1939 Arthur O. George and his wife Emma conveyed it to the Federal Farm Mortgage Corporation and this deed for the first time excepted and reserved the land which had been conveyed to the school district in 1868.

Through the mortgage corporation's grantees eventually a deed conveying title of the farm was given to plaintiff Anna A. Fausett on January 5, 1951, but it, too, recited the exception and reservation of the school lot which had first appeared in the mortgage corporation's deed in 1939. On June 16, 1954, John E. Frost and Charles H. Frost, who are described in the complaint as 'the distributees of' Thomas and Lydia, the 1868 grantors to the school district, executed a deed to the plaintiff Fausett of the land which had been granted to the school district.

This last instrument recited: 'The purpose of this deed is to convey to the grantee any and all interest of the grantors in the foregoing described property resulting from the reservation and right of reverter retained by Thomas S. Frost and wife, the parents of the grantors, in said deed of 1868'.

School District No. 9 having been swept into a central school district, its school lot parcel ceased to be used for school and meeting purposes on September 10, 1953; and on July 18, 1955 the Central School District deeded it to the defendant Lena Guisewhite and her husband, now deceased.

The following year, February 21, 1956, Arthur George and his wife Emma conveyed the school lot by quitclaim deed to the defendant and her husband. It will be remembered that when Thomas S. Frost and his wife conveyed the farm in 1878 they did not except the school lot which they had conveyed 10 years before, and that all deeds subsequently were in the same terms, including that by which the Georges got title, until the Georges' deed of 1939 to the mortgage company, which expressly excepted the school lot.

The question presented is who now owns the former school lot. This action was instituted by the plaintiff in the Chemung County Court pursuant to Real Property Law, Article 15, to determine title. The County Court decided that defendant has title. We are of opinion the judgment is right.

The issue is determinable on analysis of what was the effect of the reservation of the grantors in the deed of 1868. Our view is that the reservation in the 1868 deed amounted to a 'condition subsequent', a term which, upon a rather considerable volume of decisional law, has been interpreted to mean a right that was personal to the grantors; that would descend to their heirs at law; but could not be assigned or transferred to any others; and would come to an end in any event by a conveyance either of the surrounding land of the original reserving grantors or by a conveyance by them of the subject land itself.

Other, and perhaps more accurate, labels have been conceived for the 'condition subsequent'. The interest retained by such a grantor is referred to in Restatement, Property § 24 (1936), as a 'power of termination', and there noted that it often is called a 'right of entry', but the special note to section 24 calls attention to the fact that it is not quite a right, but rather a power that is thus involved.

Simes, in Law of Future Interests, Vol. 1, § 159, p. 282 [1936 Ed.], felt the term 'power of termination' had the advantage of accuracy, but that tradition and long professional usage made it preferable to employ, as he did in his text, 'right of entry for breach of condition'. It will lead to no further confusion, we think, if for the purpose of this case we use 'condition subsequent', a term which itself seems well enough understood by those who have employed it and by those who seek to find a more precise expression.

For the purposes of examining this case, the 'condition subsequent' in legal theory and effect must be seen contrasted with a 'possibility of reverter', which is an interest retained by a grantor treated quite differently in theory and in effect from a 'condition subsequent', especially in respect of alienability.

The differential analyses in the decisions of the effective terms themselves and of the form of works in grants which bring them into being have been singularly confused. Simes prefers to use generally the term 'possibility of reverter' to describe the interest retained by the grantor; and 'determinable fee', 'in fee simple conditional' or 'in determinable fee simple conditional' to describe, in such a transfer, the interest of the grantee (section 177, p. 320); the Restatement to describe that interest employs the term 'An estate in fee simple determinable' (Property, § 44). The terms 'condition in deed', or 'fee upon special limitation' are sometimes used.

This type of interest retained by the grantor is considered in an important recent case by the Appellate Division, Fourth Department (Nichols v. Haehn, 8 A.D.2d 405, 187 N.Y.S.2d 773), the significance of which is treated in a comprehensive note in 45 Cornell L.Q. 373, Future Interests: Alienability of Possibility of Reverter by Alan E. Shalov.

The distinguishing element of a possibility of reverter is that the grantor retains a right to regain the fee upon the happening of an event; he regains it automatically; and following Nichols v. Haehn, the grantor's interest in the possibility of reverter is alienable by the grantor after, and perhaps before, the event occurs which determines the estate. (As to the operative theory, see Simes, op. cit. supra, ch. 11, Possibilities of Reverter; Restatement, Property, ch. 4; and Cornell L.Q., supra, Note, pp. 375-383.

Whether there is to be an automatic end to the grantee's fee simple; or whether its end comes by re-entry of the grantor upon arising of the condition subsequent, the physical 're-entry' required by the common law having become by modern law symbolic, depends, as the judges in many cases have said, on the intent of the grantor; and this, in turn, depends on the words in the deed.

'No precise words are required', said Allen, J., writing for the General Term in Underhill v. Saratoga and Washington Rail Road Co., 20 Barb. 455, 459-460 'to make a condition precedent or subsequent. * * * The same words have been construed both ways, and much has been made to depend on the order of time in which the conditions are to be performed. If the act or condition required does not necessarily precede the vesting of the estate, but may accompany or follow it, and if the act may be as well done after as before the vesting of the estate, or if from the nature of the act to be performed and the time required for its performance it is evidently the intention of the parties that the estate shall vest, and the grantee perform the act after taking possession, then the condition is subsequent.' Judge Allen felt in the case before him that there 'can be little doubt, I apprehend, that the provision in the deed was a condition subsequent.' It was on this opinion that Gray, J., was later to rest heavily in analyzing the question in Upington v. Corrigan, 151 N.Y. 143, 151, 45 N.E. 359, 361, 37 L.R.A. 794.

A characteristic of the type of expression which works automatic expiration of the grantee's fee seems to be one in which time is an important factor. Such words as 'until', 'so long as' or 'during' have commonly been given that effect. (See illustration in Restatement, Property § 44, comment l, illus. 17). 'To revert when', or 'when' are commonly the decisive words. The critical words in Nichols v. Haehn, supra, 8 A.D.2d p. 407, 187 N.Y.S.2d p. 775, were 'in case said Railway shall at any time be abandoned then' the grantors should have title. 'The typical words' notes Simes (op. cit. p. 329) 'are 'so long as' or 'until' or 'during".

The importantly different 'condition subsequent' is created by fairly similar, but apparently sufficiently distinguishable words of condition attached to the grant. The 'effective formulae' for the creation of a fee simple subject to a condition subsequent offered in the Restatement, § 45, p. 139, are 'upon express condition that' or 'upon condition that' or 'provided that' or some 'phrase of like import' and also a provision that if the event occurs the conveyor may enter and terminate the estate. The latter condition, however, is often implicit rather than expressed in the deeds that have had actual judicial examination.

Simes uses these...