Richardson v. Holman

• Decision Date: 20 January 1948
• Citation: 160 Fla. 65,33 So.2d 641
• Parties: RICHARDSON et al. v. HOLMAN.
• Court: Florida Supreme Court

33 So.2d 641

160 Fla. 65

RICHARDSON et al. v. HOLMAN.

Florida Supreme Court

January 20, 1948

Rehearing Denied Feb. 24, 1948.

Appeal from Circuit Court, Hillsborough County; L. L Parks, judge.

Mabry Reaves, Carlton, Anderson, Fields & Ward, of Tampa, for appellants.

Macfarlane Ferguson, Allison & Kelly, of Tampa, for appellee.

TERRELL, Justice.

On June 24, 1910 Eugene Holtsinger, by warranty deed, conveyed to Tampa and Sulphur Springs Traction Company a certain described parcel of land, with the following reservation:

'Provided however, and this conveyance is made subject to and upon the express condition that should the party of the second part cease to use the foregoing land for railroad purposes, then and in that event the title to said property shall revert to and vest in the said Eugene Holtsinger and his heirs and assigns.'

On December 26, 1910, Eugene Holtsinger and his wife, by warranty deed, conveyed to G. A. Henderson and Monroe C. Gaither, all of Government Lots 1-25-28. The description in this deed included the lands conveyed by Holtsinger to Tampa and Sulphur Springs Traction Company and contained the following reservation: 'This deed is made subject to a certain deed from the parties of the first part to the Tampa and Sulphur Springs Traction Company, a corporation, dated the 24th day of June, A. D. 1910, and recorded in Deed Book 128 on page 35 of the land records of Hillsborough County, State of Florida.'

Some time in 1945 or 1946, the Tampa and Sulphur Springs Traction Company, hereinafter referred to as the Traction Company, ceased to operate street cars and abandoned the property in question. The appellants having by mesne conveyances become successors in title to Henderson and Gaither, instituted suit in ejectment to recover title and possession of the premises.

The appellee, as defendant, demurred to the declaration, his demurrer was sustained, the suit was dismissed and plaintiffs prosecuted this appeal.

As frequently occurs, the parties are not in accord as to what questions are brought up for determination. Appellants urge two questions and appellee urges three, but in our view, they all turn on that of whether or not the reservation in the deed by Holtsinger to the Traction Company left any right of reverter in the grantor that he could assign and if so, did he assign it to Henderson and Gaither by the deed he executed to them.

Appellants contend that the reservation in the deed to the Traction Company created an estate in fee simple determinable, while appellee asserts that it created an estate upon condition subsequent. It seems to be admitted that if it created an estate upon condition subsequent, the power reserved to terminate under the common law, was personal to the grantor and his heirs and was not assignable, while if it created a fee simple determinable, then there was the possibility of reverter which might or might not be assignable under the common law.

Appellee contends that whether or not a fee simple determinable or an estate upon condition subsequent is created, depends upon the words employed by the grantor in the conveying instrument. The words employed are of course a very important determining factor, at the same time words or phrases in isolation will not be permitted to defeat the purpose of the grantor when that may be unmistakably gleaned from the four corners of the instrument.

We do not think it essential to the disposition of the question here, to precipitate a discourse in semantics on the difference between a fee simple determinable and estate on condition subsquent, when a possibility of reverter is or is not alienable, or when a fee is qualified, what constitutes a naked possibility, a conditional limitation, or any other uncertain interest in lands. These old common law concepts had much to do with conveyancing in their day, but even in States like Florida, where the common law is in effect except as repealed or substituted by statute, many of them have been obsolete or have been set aside.

Some of the text books say, that the distinction between a fee simple determinable and an estate on condition subsequent, is that as to the former, the words creating it limit the continuation of the estate to the time preceding the happening of the contingency, while in the latter, the words creating the condition do not originally limit the term, but merely permit its termination upon the happening of the contingency. The main difference is whether the estate automatically expires upon the occurrence of a stated event, whether the conveyor has the power to terminate it upon the happening of the event if he desires to do so.

Appellee reviews a great many cases from different jurisdictions to show that the reservation in the deed from Holtsinger to the Traction Company created an estate on condition subsequent which properly construed, left no assignable interest in the grantor, and being so, he contends that no right of reverter passed to appellants by virtue of having acquired their title through Henderson and Gaither.

A review of the cases cited in both briefs discloses that even under the common law, some of them hold that a possibility of reverter attached to a fee simple determinable and may be alienated while...