Queen City Park Ass'n v. Gale, 349b.

• Decision Date: 01 November 1938
• Docket Number: No. 349b.,349b.
• Parties: QUEEN CITY PARK ASS'N v. GALE.
• Court: Vermont Supreme Court

3 A.2d 529

QUEEN CITY PARK ASS'N

v. GALE.

No. 349b.

Supreme Court of Vermont. Chittenden.

Nov. 1, 1938.

Reargument Denied Jan. 3, 1939.

Appeal in Chancery, Chittenden County; Charles A. Shields, Chancellor.

Suit by the Queen City Park Association against Frances F. C. Gale for determination of assessments due on lots conveyed by plaintiff and to forfeit such lots in case of nonpayment of assessments. From a decree dismissing the bill of complaint, plaintiff appeals.

Decree reversed, and cause remanded.

Argued before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

Stickney, Sargent & Chase, of Ludlow, for plaintiff.

J. Boone Wilson, Charles F. Black, Willsie E. Brisbin, and J. A. McNamara, all of Burlington, for defendant.

BUTTLES, Justice.

The plaintiff in this case is a Vermont corporation which formerly owned a tract of land in South Burlington known as Queen City Park. At some time prior to 1885 this tract or a portion thereof was divided into lots, and some of these lots from time to time were sold by the plaintiff to individuals. The propriety and regularity of such sales are not questioned. One such lot known as number 108 was sold and conveyed by the plaintiff to Elisha Allen, and another known as number 107 to A. E. Manum. Through mesne conveyances lot number 107 and five feet from the south side of lot number 108 were conveyed on August 2, 1909, to Nora Truax Gale. It is alleged by the plaintiff that thereafter all interest of Nora A. Gale—presumably meaning the same person previously referred to as Nora Truax Gale—in said lots was decreed by the Probate Court for the District of Chittenden to Cameron C. Gale, who later acquired title to an additional seven feet off the southerly side of lot number 108, making in all twelve feet, or one-half of said lot number 108 then owned by him. On September 18, 1929, the said Probate Court decreed said lot number 107 and portion of said lot number 108 to Frances F. C. Gale, the defendant herein.

The original conveyances from the plaintiff and the mesne deeds above referred to purported to be made upon certain conditions and restrictions therein recited. One ground of the demurrer hereinafter referred to is that the plaintiff, in its amended bill of complaint sets out a deed in full containing these alleged conditions and restrictions, but that said deed purports to be executed by one P. S. Briggs who, so far as appears, was a stranger to defendants' title. The fact appears to be as stated in the demurrer but the original bill of complaint sets forth the alleged conditions and restrictions which were numbered eight and nine respectively together with the statement that the same were contained in the deed given by the plaintiff and in the later mesne deeds in defendant's chain of title. We are also given some information as to the setting of the original conveyances from the quotations from the constitution and by-laws of the plaintiff contained in the amended bill, and the statement that the various committees referred to therein were duly appointed each year and performed their duties.

The eighth and ninth of such alleged conditions and restrictions are set forth in said bill of complaint as follows:

"8th. That the grantee or any person holding under him, shall pay such yearly assessments as may be laid upon the granted premises by the Board of Directors, not exceeding five dollars or less than one dollar per year, within thirty days after the same has been demanded by the Treasurer or Collector of the Association.

"9th. That upon the violation of any of the preceding conditions and restrictions, the grantee or person holding or using under him shall forfeit to the Association the sum of ten dollars and be subject to all damages accruing from such violation."

Prior to and including the year 1933 annual assessments in accordance with article 8 were made and the same were paid upon the Gale lot and half lot by this defendant and her predecessors in title. An assessment was regularly made by the directors of the plaintiff corporation for the year beginning Aug. 23, 1934, in accordance with the constitution and by-laws of the corporation and, so far as appears, within the terms of the provision contained in said deeds. This assessment the defendant refused to pay and thereafter the plaintiff brought its bill of complaint in chancery praying that the court find the amount due from the defendant to the plaintiff by reason of her failure to pay said assessment, that she be ordered to pay such amount together with the costs taxed in this suit, and that in default of such payment being made within a time to be limited by the court all right, title and interest of the defendant in said lands be adjudged and decreed to be forfeited for violation of the conditions and restrictions upon which said lots were conveyed by the plaintiff, and that all right, title and interest of such defendant in said lots has reverted to and become that of the plaintiff. There was also a prayer for other and further relief.

To this complaint the defendant seasonably demurred. The case comes here on an appeal from the decree of the court of chancery sustaining such demurrer and dismissing the bill of complaint.

The plaintiff claims a forfeiture and seeks foreclosure of the defendant's interest in the land so held by her. The plaintiff is not entitled to this relief unless the language of the conveyances gives it the right to claim a forfeiture. It is therefore important to consider the nature of the title conveyed. That it was a fee of some kind is not to be doubted.

A determinable fee is a fee simple estate to a person and his heirs, with a qualification annexed to it by which it is provided that it must terminate whenever the qualification is at an end. University of Vermont and State Agricultural College v. Ward, 104 Vt. 239, 246, 158 A. 773. See Restatement of the Law of Property, Ch. 4, sec. 44, page 121. Since the plaintiff makes no claim that the title of the defendant is a determinable fee and it does not appear that the plaintiff's grant contained apt words for creating such a fee, we give that matter no further consideration.

The plaintiff's contention apparently is that defendant's estate is a fee upon condition subsequent, and since the words used in the conveyance "upon the following conditions and restrictions" might suggest such a fee, this claim requires consideration. In University of Vermont and State Agric. College v. Ward, supra, at page 247, 158 A. at page 776, this Court said: "A fee upon condition resembles a determinable fee in that it exhausts the whole estate, but may return to the grantor by breach of a condition subsequent to which it was granted, but it does not return until there has been an entry by the person having that right." "An estate in fee simple subject to a condition subsequent is created by any limitation which, in an otherwise effective conveyance of land (a) creates an estate in fee simple; and (b) provides that upon the occurrence of a stated event the conveyor or his successor in interest shall have the power to terminate the estate so created." Restatement of the Law of Property, Ch. 4, sec. 45, p. 133. Obviously the instrument here in question does not contain the provision required by clause (b) of the Restatement definition.

The use of the words "upon the following conditions and restrictions" in the instrument is not conclusive.

"While the words 'provided nevertheless' and 'upon the following conditions' are appropriate words to create a condition, they do not of necessity create such an estate. They, and similar words, will give way when the intention of the grantor, as manifested by the whole deed, is otherwise, and they have frequently been explained and applied as expressing simply a covenant or a limitation in trust." Woodruff v. Woodruff, 44 N.J.Eq. 349, 16 A. 4, 6, 7, 1 L.R.A. 380; Episcopal City Mission v. Appleton, 117 Mass. 326; Sohier v. Trinity Church, 109 Mass. 1, 19; Stanley v. Colt, 5 Wall. 119, 18 L.Ed. 502. "The strongest words of condition will not work a forfeiture of the estate, unless they were so intended to operate. The absence of a clause for re-entry may signify that no condition was intended, when its presence may make such intent plain." Bragdon v. Blaisdell, 91 Me. 326, 39 A. 1036, 1037; Post v. Weil, 115 N.Y. 361, 22 N.E. 145, 5 L.R.A. 422, 12 Am.St.Rep. 809; Avery v. New York Cent. &...