Storke v. Penn Mut. Life Ins. Co., 28608.
| Decision Date | 23 May 1945 |
| Docket Number | No. 28608.,28608. |
| Parties | STORKE et al. v. PENN MUT. LIFE INS. CO. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Cook County; Robert Jerome Dunne, judge.
Action by Concepcion Cobos Vda De Storke and others against the Penn Mutual Life Insurance Company to establish title in plaintiffs and the unknown heirs of another to certain land, that defendant be declared to have no right or title in the land, for partition of the land, to enjoin a tenant on the land from maintaining a tavern, and for other relief. From an adverse decree, plaintiffs appeal.
Affirmed.
John W. Ellis and John R. Hackett, both of Chicago, for appellants.
Sonnenschein, Berkson, Lautmann, Levinson & Morse, of Chicago (David Levinson and Ben Rothbaum, both of Chicago, of counsel), for appellees.
Appellants, as plaintiffs, prosecuted this action in the circuit court of Cook county as heirs-at-law of Jay E. Storke. Jay E. Storke and Bernard Timmerman, now both deceased, in 1889 subdivided approximately forty acres of land into lots. At that time the property was outside the limits of the city of Chicago. It is now located in the neighborhood of Halsted street between Seventy-fifth and Seventy-ninth streets. Part of the property involved was conveyed by deed containing the following covenant:
‘And the party of the second part (the grantee in said deed), his heirs and assigns hereby covenant and agree that no saloon shall be kept and no intoxicating liquors be sold or permitted to be sold on said premises herein conveyed or in any building erected upon said premises; and that in case of breach in these covenants or any of them said premises shall immediately revert to the grantors, and the said party of the second part shall forfeit all right, title and interest in and to said premises.’
It was agreed to be binding upon the heirs, executors, administrators and assigns of the respective parties. The balance of the premises involved had a covenant of substantially the same wording and with like effect. There was also one providing that the building erected upon the premises should cost at least $2500, but no question is raised as to the value of the building upon the premises.
By mesne conveyances, appellee Penn Mutual Life Insurance Company, on November 19, 1934, acquired title to the premises involved herein by quitclaim deed, which did not contain the covenant prohibiting the use of saloons upon the premises. The premises have been occupied by Edward Walsh as tenant of Penn Mutual Life Insurance Company since 1934, and have been operated during all of that period as a saloon or tavern. The plaintiffs are the heirs-at-law of Jay E. Storke. The heirs of Bernard Timmerman are unknown. There are 491 lots in the sixteen blocks embraced in the subdivision, which are covered by the same restrictions as to the use of the premises.
The facts disclose this subdivision has become a built-up business section of the city of Chicago, and located in various parts of it are saloons or taverns, with at least sixteen saloons in the neighborhood of the property involved or in the adjoining blocks, and liquor has been almost continuously sold in this subdivision since it has become a built-up part of the city of Chicago, and continuously since the repeal of the prohibition amendment. There have been numerous instances where the heirs-at-law of Timmerman or Storke have released and waived the restriction contained in the deed, from as far back as 1904 to as late as 1924.
In 1926, appellee Penn Mutual Life Insurance Company purchased a first mortgage on the premises herein involved for the sum of $42,500, and in November, 1934, it purchased the title to said property and released said mortgage lien and the personal liability of the mortgagor in reliance upon the abandonment of the possible right of reverter by the heirs of Jay E. Storke, and by their waiver of the restriction by acquiescing in the use of the said premises in said subdivision for saloon purposes and by releasing and relinquishing any possible right of reverter therein.
December 29, 1942, plaintiffs filed their complaint asking that the court establish title in the plaintiffs and the unknown heirs of Timmerman, and that defendant and appellee insurance company be decreed to have no right or title in the premises; that the interest of the plaintiffs and the heirs of Timmerman be ascertained; that partition be had of the premises; that the defendant Walsh be perpetually enjoined from maintaining a tavern, and that plaintiffs have further relief, etc. The case was tried upon a stipulation of facts, and anything not pointed out above, necessary to a decision of this case, will be referred to hereafter.
To reach a proper conclusion under the disclosed facts, it is necessary to determine the character of the condition, covenant, or reservation contained in the deed from the original grantors. Appellants say they do not deem it necessary to classify their supposed reversionary interests as either based upon a conditional limitation or as a condition subsequent, but assert that they rely upon the decision of Pure Oil Co. v. Miller-McFarland Drilling Co., Inc., 376 Ill. 486, 34 N.E.2d 854, 135 A.L.R. 567. Since the reversionary right in that case was held to arise from a deed containing a conditional limitation, we must infer that such is the basis of appellants' case. Appellee insurance company, however, contends the provisions in the deed upon which appellants seek to recover constitute conditions subsequent. Such different results follow from these different contentions that resolving the character of the restrictions contained in the deed will be determinative of the case.
The distinction between a conditional limitation and a condition subsequent is sometimes very refined, because of the language used under the different situations under which the question arises. Many distinctions are to be found in the books whether from the words used there is created a condition subsequent making the estate voidable, or words of limitation causing the estate to cease. The term ‘conditional limitation’ in this State has been applied both where, upon the happening of certain events, the estate goes to third persons, and where a determinable or base fee is granted to the first taker followed by a possibility of reverter upon the happening of a contingency. Tiffany, 2d, sec. 90. The term will be used herein in the latter sense.
The basic difference between estates upon conditional limitation and those upon condition subsequent is ascertained by the fact that, in the latter case, the entire estate has passed to another, but can be returned to the grantor upon the subsequent happening of a described event; while in the case of a conditional limitation, the estate passed to another contains within itself the ground for its return to the grantor. The common-law writers witness the distinction as follows: In Preston on Estates, pages 40-45, it is said: In Kent's Commentaries, vol. 4, p. 127, it is stated: So, in Touchstone, page 121, it is said:
The accepted authorities of the common law are collected and aptly condensed with the following statement: ...
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