CONDITIONAL AND FUTURE INTERESTS AND ILLEGAL CONDITIONS AND RESTRAINTS IN ILLINOIS. TITLE I. CONDITIONAL AND FUTURE INTERESTS. CHAPTER I. CONDITIONAL ESTATES. PART 1. RIGHT OF ENTRY FOR CONDITION BROKEN DISTINGUISHED FROM A POSSIBILITY OF REVERTER. § 1. General outlines of the distinction: "The distinction," says Professor Gray in his Rule against Perpetuities, "between a right of entry for condition broken and a possibility of reverter is this: after the statute [of quia emptores], a feoffor, by the feoffment, substituted the feoffee for himself as his lord's tenant. By entry for breach of condition, he avoided the substitution, and placed himself in the same position to the lord which he had formerly occupied. The right to enter was not a reversionary right coming into effect on the termination of an estate, but was the right to substitute the estate of the grantor for the estate of the grantee. A possibility of reverter, on the other hand, did not work the substitution of one estate for another, but was essentially a reversionary interest,2-a returning of the land to the lord 1 § 31. 2 The question therefore of the validity of such interests in Illi nois is considered in connection with reversions. Post, §§ 124-126. of whom it was held, because the tenant's estate had determined." § 2. The interest of the dedicator upon a statutory dedication-What sort is it-On principle: Upon a statutory dedication the fee simple estate in the land dedicated passes to the - municipality. It is admitted on all hands, however, that should the dedication be vacated there is some right in the original dedicator to recover back the lands dedicated. Is this right a possibility of reverter or a right to enter for breach of a condition subsequent! In the ordinary case there is no explicitly expressed intention of the dedicator 5 upon which to found a solution of this question. Nor do the terms of the statute throw any light upon the matter. If, therefore, the right arises by an expressed intent of the dedicator such intent must be expressed by implication from the act of dedication. If it arises by operation of the statute in regard to dedication it must be upon the construction of that statute as a whole-not because of any particular words in it. Which ever way you take it a court would seem to be pretty free to choose what sort of interest the dedicator shall be held held to to possess. Possibilities of reverter, however, as will hereafter be indicated, 3 Canal Trustees v. Havens, 11 Ill. 554; Hunter v. Middleton, 13 Ill. 50; St. John v. Quitzow, 72 Ill. 334, 336; Gebhardt v. Reeves, 75 Ill. 301, 304 (citing other cases); Matthiesson & H. Zinc Co. v. LaSalle, 117 Ill. 411, 414-417, 16 Ill. App. 69, (citing other Illinois cases). Of course until the vacation does occur there is no right of possession in the dedicator or in any one else: Matthiesson & H. Zinc Co. v. LaSalle, 117 Ill. 411, 418. Co. v. City of LaSalle, 117 Ill. 411, 418 (semble). 5 In Helm v. Webster, 85 Ill. 116, the intent of the dedicator was fully expressed in the following language: "It is hereby provided and understood that, when said premises shall, after being opened as a street, cease to be used as such, or whenever such street as may be opened on said premises shall be abandoned or vacated by said city, the same shall revert to the present owners thereof, their heirs or assigns, the same as though this deed had never been made." This looks like a condition subsequent upon the breach of which the dedicator would have a right of entry. • Post, §§ 124-126. are of very doubtful validity since the statute of quia emptores. On the other hand there is no doubt that a right of entry for condition broken may be attached to a fee simple. It would seem, therefore, more in accordance with the general symmetry of the law to regard the dedicator's interest as a right of entry for the breach of a condition subsequent. § 2a. On authority: No case in our Supreme Court has actually involved the question of the nature of the dedicator's interest. The expressions concerning it, so far as they go, have been conflicting, and it may well be doubted whether our court was, in any case, really undertaking to pass upon the point, nor can the nature of the dedicator's interest be determined by inquiring whether, in case of vacation, an entry was made by him before bringing ejectment, since ejectment may be maintained without entry. It is believed, however that the nature of the dedicator's interest must be involved where the question arises as to the alienability of his interest after the dedication has been vacated and before any entry or the equivalent of entry by him or his heirs. In such a state of facts, if the right of the dedicator were a possibility of reverter, then the fee would have expired by the terms of its original limitation and the dedicator, if he be living, or his heirs if he be dead, could convey without entry.10 If, on the other hand, the right of the dedicator was to enter for condition broken, neither he nor his heirs could enter until the forfeiture had been perfected by entry or some equivalent act.11 It is worth observing somewhat in detail that the point was raised in just this way in Ruch v. Rock Island.12 There it "Post, § 14. 8 In St. John v. Quitzow, 72 Ill. 334, 336, the Court says: "The new streets were dedicated upon condition the fee in the streets and alleys vacated should vest in appellant [the original dedicator]." On the other hand in Matthiesson & H. Zinc Co. v. City of LaSalle, 117 Ill. 411, 418, Scholfield J. says: "The adjacent lot owner [referring to the original dedicator] does not have a reversion, but a possibility of reverter only." In this latter case, however, the court was contrasting a reversion with a possibility of reverter and not a possibility of reverter with a right of entry for the breach of a condition subsequent. Post, 30a. 10 Post, §§ 124-126. seems to have been assumed that the fee vested in the town by dedication for schools and churches. Subsequently to the conveyance by the town for other purposes the heirs of the original dedicator, without having entered or done any act sufficient to perfect a forfeiture for the breach of a condition subsequent (if any), conveyed to the plaintiffs who brought ejectment. A judgment for the defendants was affirmed. The court, speaking by Mr. Justice Swayne, pointed out that the heirs at law had conveyed before doing any act to forfeit the estate for breach of a condition subsequent and that this was quite conclusive against the plaintiff's recovery. The following language was used: "It was not denied by the plaintiff that the title had passed, and that the estate had vested by the dedication. If the conditions subsequent were broken,13 that did not ipso facto produce a reverter of the title. The estate continued in full force until the proper step was taken to consummate the forfeiture. This could be done only by the grantor during his lifetime, and after his death by those in privity of blood with him. In the meantime, only a right of action subsisted, and that could not be conveyed so as to vest the right to sue in a stranger. Conceding the facts to have been as claimed by the plaintiff in error [the plaintiff in the ejectment], this was fatal to his right to recover, and the jury should have been so instructed." § 2b. How does it arise? We have considered what sort of interest the dedicator has. Does it arise by act of the parties or by statute, or merely by operation of law apart from the statute? It is believed that it must arise by virtue of the statute on dedication. If it does not, then if it be a possibility of reverter it arises by operation of law apart from the statute. But it must be very doubtful whether such an interest can properly so arise since quia emptores,14 and, if it can, it should be objectionable on the ground of remoteness.15 If it is a right of entry for condition broken, it may be valid apart from the question of remoteness, but it ought to 13 There do not appear to have been any express condition subsequent. Whatever condition there was arose out of the fact of a dedi cation for schools and churches. 15 Gray's Rule against Perpetuities § 312; but see post, § 257. |