Mahrenholz v. County Board of School Trustees

Appellate Court of Illinois · 1981 · Property

Propertyfuture interestsfee simple determinablefee simple subject to condition subsequentright of entrydefeasible feespossibility of reverterright of entry

Facts

In 1941, W. E. and Jennie Hutton deeded school land to school trustees with the language: "this land to be used for school purpose only; otherwise to revert to Grantors herein." Classes were held on the property until 1973, after which the district used it only for storage. Plaintiffs could not acquire the future interest from the Jacqmains in 1959 because the land was still being used for school purposes then, but in 1977 Harry Hutton, the Huttons' sole heir, conveyed his interest to plaintiffs and also later executed a disclaimer in favor of defendants. The dispute turned on whether the 1941 deed left Harry Hutton a possibility of reverter or merely a right of entry.

Issue

Did the 1941 deed language create a fee simple determinable with a possibility of reverter, or a fee simple subject to a condition subsequent with a right of entry? If it created a possibility of reverter, could plaintiffs potentially acquire an interest from Harry Hutton after the property allegedly ceased being used for school purposes?

Rule

Whether a defeasible fee is a fee simple determinable or a fee simple subject to condition subsequent depends on judicial interpretation of the grant's words. Language showing a limited grant for a stated purpose only, coupled with an express reverter that appears mandatory rather than permissive, indicates a fee simple determinable and possibility of reverter; by contrast, language of express condition suggests a fee simple subject to condition subsequent and right of entry. In Illinois, possibilities of reverter and rights of entry are inheritable but not transferable by will or inter vivos conveyance before they become possessory.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Peoria, Illinois, Nora Bell deeded a parcel to Meadow Glen Arts Council. The deed stated: "this land to be used for community theater only; otherwise to revert to Grantor." Years later, the council leased the parcel for a private warehouse.

Assuming the use has ceased to qualify as community theater, what estate did the council most likely receive under the controlling doctrine?

Explanation. The majority opinion emphasized that language such as use "only" within the granting clause suggests a limited grant rather than a full grant subject to a condition. When that limitation is coupled with language that the property shall "revert" to the grantor, the deed is best read as creating a fee simple determinable with a possibility of reverter. Title would revest automatically if the stated use ceased.