Higbee Corporation v.
Kennedy, Executor
Superior
Court of
286
Pa.Super. 101, 428 A.2d 592.
Johnson,
pp. 146-149
Facts: Higbee filed an action to
quiet title in a disputed tract of land.
There was ambiguity in the original grant and it was unclear whether
Kennedy owned a fee simple determinable or a fee simple subject to a condition
subsequent. Higbee argued it was a fee
simple determinable, and the trial court agreed. Kennedy appealed, claiming it was a fee
simple subject to a condition subsequent.
Issue: Was the estate created by
the deed a fee simple determinable or a fee simple subject to a condition
subsequent?
Rule: Words that express
conditions, like “provided”, “if”, and “upon the condition that” suggest the
existence of a fee simple subject to a condition subsequent. However, the express retention of a reverter
to the grantor suggests a fee simple determinable. Finally, the burden of clearly establishing a
restriction on a grant falls on the drafter, and grants will be construed to
make title as marketable as possible without being inconsistent with the grant.
Analysis: The fee simple determinable
is less marketable and alienable than the fee simple subject to a condition
subsequent. The court places a high
burden on the drafter of the grant to use clear language establishing the fee
simple determinable. If it’s unclear,
the court will rule that the grant is a fee simple subject to a condition
subsequent based on public policy grounds.
The court thus finds that this grant was a fee simple subject to a
condition subsequent.
Furthermore,
the court finds that the condition subsequent has not been shown to have been
broken. The word “wishes” suggests a
subjective state of mind of the grantee.
In order to show that the condition had been broken, the court says that
Higbee would have to prove that Kennedy had “no inclination” to use the land
for a road. It wasn’t enough merely to
show that the land wasn’t being used
as a road.
Conclusion: The trial court is
reversed.