Higbee Corporation v. Kennedy, Executor

Superior Court of Pennsylvania, 1981.

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.

 

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