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Fee Simple Determinable

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Fee Simple Determinable based on Willhite v. Masters, Missouri.
Return to Estates in Property

This page introduces the property concept of fee simple determinable; that is, even though an individual is considered the owner of land, the previous owner, at the time the land was transferred to the current owner, may have imposed a limitation on the current owner's use of the land and if that limitation is violated by the current owner, ownership of the land will transfer to another person (perhaps the previous owner) without the current owner's consent or being paid. Note -- this case was decided 73 years after the property was transferred with the limitation.

Willhite v. Masters, Missouri Court of Appeals Southern District, 21872, 03/19/1998

Appellants argue that the 1925 deed contained a "reverter clause" providing that "upon the failure or refusal of the party of the second part to supply electricity to the [flouring] mill, the conveyed property would revert to the party of the first part, or his assigns." Appellants further contend that since it "was stipulated by all parties that the mill had not been provided electricity since 1953 ... the condition [of the deed] went unfulfilled." Hence, Appellants maintain … "the property in question reverted to Mr. Whinrey, or his assigns, and ultimately to the Appellants." We disagree.

. . . a determinable fee simple estate is one that automatically terminates upon the occurrence of a specified event or the cessation of use for a specified purpose and will revert to the grantor without any entry or other act… Upon the creation of a determinable fee simple estate the grantor retains an interest known as a "possibility of reverter" which is both alienable and devisable…

This future interest [determinable fee simple] should be contrasted, however, with a defeasible fee simple estate, which gives rise to a right of entry for a condition broken, i.e., "the right of entry for condition broken retained by the grantor of a fee upon condition subsequent ...." "[T]he fee conveyed does not automatically terminate upon condition broken." It necessarily requires an affirmative act of forfeiture because such a "condition operates upon an estate already created and vested, and renders it liable to be defeated." At common law, it [the right of entry] is neither assignable, devisable or alienable, although it is descendable to the heirs of the grantor.

Although the distinction between the two types of estates would otherwise be pertinent to the resolution of the instant matter (the first type of estate is alienable/assignable while the latter is not), we need not reach the question as to the correctness of Appellant's argument that the 1925 deed created a determinable fee simple estate. This is because, as discussed below, the triggering mechanism that would either automatically terminate the estate created by the 1925 deed, or subject it to forfeiture, has been nullified.

"The intention of the parties must be determined from the language used in the deed where the intention is clearly expressed." "It is the totality of the language in the instrument which determines the interest conveyed." "The agreements or conditions of a deed bind a person who accepts the deed, the grantor, a purchaser from the grantor with notice ... and any assignee or grantee of the grantee in whom the estate on condition is vested."

As a general rule, "[f]orfeitures are not favored, and all conditions or provisions in contracts providing for them must be strictly construed." "[C]onditions subsequent are not favored in law, and are construed strictly, because they tend to destroy estates." "When relied on to work a forfeiture, they must be created in express terms or by clear implication." ("Conditions subsequent and reverters are not favorites of the law".)

The clear language of the 1925 deed, provides in part, that if the "operation of the flouring mill is at any time suspended for a period of two (2) years the power right [the right to receive electrical power] herein reserved by first party shall cease and be thereafter non-effective." By the clear terms of the deed, then, the non-operation of the flouring mill for a period of two years nullified the requirement that the utility furnish electric power to the flouring mill site.

"A condition in a deed is not binding if its performance has been rendered impossible by act of the grantor or the party to be benefited thereby, by act of God, or by prohibition or operation of law." ("[c]onditions subsequent in deeds, although not favored, will be given effect, when they are clearly created, are not inconsistent with the other terms of the conveyance, and are not rendered impossible of performance by the act of God or by the subsequent conduct of the grantor").

In Craig, grantor conveyed to grantees his home on the condition that the grantees furnish grantor "'with a home, furnish him with necessary board, clothing, medical care, and provide for his burial at his death.'" Grantees undertook to comply with the understanding, but then grantor departed the home, without advising grantees of his whereabouts. The reviewing court held that "when [grantor] left [the home], of his own accord, not even advising [grantees] that he would return, it put it out of the power of the [grantees] to render the service contemplated ..." The court concluded that "the present situation is not the fault of the [grantees] and [grantor] can not now hold them responsible for it as it is one of his own making."

Similarly, in the instant case, it is undisputed that the flouring mill was never rebuilt following the fire in 1953. Obviously, no electricity was or could be provided to a non-existent flouring operation… As the trial court stated in its findings of fact and conclusions of law, "[t]here's been no evidence that they [the utility company] took any affirmative action to not do their part of the agreement." More than two years have lapsed since the flouring mill was operated, and by the express terms of the deed the so-called "power right" reserved, ceased and became non-effective.

The trial court's judgment quieting title to the property in Caplinger Mills Bridge Preservation Society, Inc. is supported by substantial evidence.

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