Halpin v. Rural Agric. Sch. Dist. No. 9, Gaines Tp.

• Decision Date: 01 October 1923
• Docket Number: No. 28.,28.
• Citation: 224 Mich. 308,194 N.W. 1005
• Parties: HALPIN v. RURAL AGRICULTURAL SCHOOL DIST. NO. 9, GAINES TP.
• Court: Michigan Supreme Court

224 Mich. 308

194 N.W. 1005

HALPIN

v.RURAL AGRICULTURAL SCHOOL DIST. NO. 9, GAINES TP.

No. 28.

Supreme Court of Michigan.

Oct. 1, 1923.

Appeal from Circuit Court, Genesee County, in Chancery; Fred W. Brennan, Judge.

Suit by Leo J. Halpin against Rural Agricultural School District No. 9, Gaines Township. From a decree for defendant, plaintiff appeals. Modified and affirmed.

Argued before FELLOWS, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ.Matthews & Hicks, of Owosso, for appellant.

George W. Cook, of Flint, for appellee.

BIRD, J.

In November, 1855, George H. Lyon was the owner in fee simple of the southwest quarter of section 17 in the township of Gaines, Genesee county. On the 29th day of that month he deeded a half acre in the southeast corner of the premises, upon a consideration of $5, to school district No. 6, in said township of Gaines. The deed was drawn on the ordinary form warranty deed, but contained the following provision:

‘Said land to be used as a site for school-house, and the said parties of the second part do hereby agree that whenever said site ceases to be used for school purposes, then all their right and title to said land shall be given over to the said party of the first part, their heirs and assigns, in the same right and title as before the execution of this instrument, together with all and singular the hereditaments and appurtenances thereunto belonging or in any wise appertaining.’

On February 23, 1861, George Lyon and his wife Phoebe quitclaimed their interest in this land to John Stringer. The will of John Stringer was probated in November, 1892. This will devised these lands to Jane Gilmore, Marshall L. Stringer, and Zachariah L. Stringer, who, on the 17th day of October, 1919, quitclaimed their interest to the plaintiff herein. School district No. 6 was consolidated with other districts, and the defendant herein is the consolidated district. After the land ceased to be used for school purposes, it was claimed by both parties.

The claim of the plaintiff is that Lyon, the original grantor, annexed a condition to the deed, and when this condition was broken it reverted to Lyon and his heirs and assigns. Defendant agrees with plaintiff that Lyon retained in himself an interest which is known in the law as a ‘reverter,’ but it insists that the interest or ‘reverter’ was not assignable before condition was broken, that only Mr. Lyon or his heirs could reenter the land and take possession after the fee was determined, and that neither a stranger nor a third party could do this. The exact point of disagreement between the parties is whether the reservation in the deed created a ‘condition subsequent’ or a ‘conditional limitation.’ The plaintiff insists that the conveyance created a conditional limitation, and after the condition was broken the premises vested in the assigns of George H. Lyon. The defendant argues that the reservation created a condition subsequent, that the right of re-entry was reserved to the grantor and his heirs, and that this right was not assignable.

It appears to have been a rule of the common law that a condition annexed to real estate could be reserved only to the grantor or devisor and his heirs; that after the breach of the condition the estate did not ipso facto terminate, but continued until the grantor or his heirs made an entry on the land who alone could take advantage of the breach. Another rule was that, if the condition was followed by a limitation over to a third person, instead of to himself and heirs, and the condition was breached, it was called a conditional limitation, and the estate vested at once in the third party. It is also said that, where the reservation was made to the grantor and his heirs, this right remained in him and his heirs when the fee passed out of the grantor, but where the reservation was made to a third party nothing remained with the grantor, because the whole estate passed out of him, and in case of a breach of his condition the third party was immediately vested with the right to enter and take possession.

In Brattle Square Church v. Grant, 3 Gray (Mass.) 142, 63 Am. Dec. 725, where a similar question was considered, the distinction between a condition subsequent and a conditional limitation is so clearly set forth that we think we should give it space:

‘By the common law, a condition annexed to real estate could be reserved only to the grantor, or devisor, and his heirs. Upon a breach of the condition, the estate of the grantee or devisee was not ipso facto terminated, but the law permitted it to continue beyond the time when the contingency upon which it was given or granted happened, and until an entry or claim was made by the grantor or his heirs, or the heirs of the devisor, who alone had the right to take advantage of a breach. 2 Bl. Com. 156. 4 Kent. Com. (6th Ed.) 122, 127. Hence arose the distinction between a condition and a conditional limitation. A condition, followed by a limitation over to a third person in case the condition be not fulfilled, or there be a breach of it, is termed a conditional limitation. A condition determines an estate after breach, upon entry or claim by the grantor or his heirs, or the heirs of the devisor. A limitation marks the period which determines the estate without any act on the part of him who has the next expectant interest. Upon the happening of the prescribed contingency, the estate first limited comes at once to an end, and the subsequent estate arises. If it were otherwise, it would be in the power of the heir to defeat the limitation over, by neglecting or refusing to enter for breach of the condition. This distinction was originally introduced in the case of wills to get rid of the embarrassment arising from the rule of the ancient common law, that an estate could not be limited to a stranger, upon an event which went to abridge or destroy an estate previously limited. A conditional limitation is therefore of a mixed nature, partaking both of a condition and of a limitation; of a condition, because it defeats the estate previously limited; and of a limitation, because, upon the happening of the contingency, the estate passes to the person having the next expectant interest, without entry or claim.

‘There is a further distinction, in the nature of estates on condition and those created by conditional limitation, which it may be material to notice. Where an estate in fee is created on condition, the entire interest does not pass out of the grantor by the same instrument or conveyance. All that remains, after the gift or grant takes effect, continues in the grantor, and goes to his heirs. This is the right of entry, as we have already seen, which, from the nature of the grant, is reserved to the grantor and his heirs only, and which gives them the right to enter as of their old estate, upon the breach of the condition. This possibility of reverter, as it is termed, arises in the grantor or devisor immediately on the creation of the conditional estate. It is otherwise where the estate in fee is limited over to a third person in case of a breach of the condition. Then the entire estate, by the same instrument, passes out of the grantor or devisor. The first estate vests immediately, but the expectant interest does not take effect until the happening of the contingency upon which it was limited to arise. But both owe their existence to the same grant or gift; they are created uno flatu, and being an ultimate disposition of the entire fee, as well after as before the breach of the condition, there is nothing left in the grantor...