Univ. of Vt. and State Agri. College v. Ward

I regret that I cannot agree with the majority in the disposition of this case. It is with all diffidence that I find myself unable to reconcile my views with those of my brethren, whose mature opinion cannot fail to impress upon me the high respect which it deserves and the temerity of a dissent from it. Yet my belief in the unsoundness of their conclusion prompts me to state the reasons for my objection.

We have here an instrument in which it is recited that the plaintiff "for and in consideration of the rents, covenants and agreements hereinafter mentioned and reserved hath granted, demised, leased and to farm let, and by these presents doth demise, lease and to farm let unto Benoni Shaw, his executors, administrators and assigns a certain tract or parcel of land (describing it). To have and to hold said granted and demised premises unto him, the said Benoni Shaw, his executors, administrators and assigns from the date hereof as long as grass grows or water runs yielding and paying therefor" a certain rent. It is provided also that if the rent or any part thereof shall be unpaid for the space of 30 days after it becomes due and payable, "the same being first demanded in writing" by the grantor, it shall be lawful for the grantor to reenter and repossess the premises. There are three covenants: First, that "the said Benoni Shaw for himself, his heirs, executors and assigns, doth covenant and agree * * * that he, the said Benoni Shaw, his heirs, executors, administrators or assigns, shall well and truly pay or cause to be paid" the stipulated rent; second, that the said Benoni Shaw for himself, his heirs, executors and administrators and assigns doth hereby further covenant and agree that he, and they, shall and will at all times reserve 30 acres of the premises for woodland without strip or waste thereon, taking therefrom yearly such timber as may be necessary "for certain purposes"; third, that the grantor "doth covenant to and with the said Benoni Shaw, his heirs, executors and assigns that he and each of them quietly and peaceably enjoy the aforesaid premises without any let or hindrance whatever according to the true intent and meaning of these premises." There is also a provision for reentry for breach of the covenant regarding the wood lot "in as full and ample a manner as in the case of nonpayment of rent." No reentry has taken place, nor has any written notice of a default been given, as stipulated in the conveyance.

Through various conveyances the property came into the possession of Peter Fontaine. He died while in possession, and his administrator, having first obtained a license from the probate court, sold to the defendant all the growing wood and timber upon the premises. The defendant cut and removed the timber. The declaration in this action contains a count in trover for the timber and one in trespass de bonis asportatis.

The primary question is what rights or estate have passed by this conveyance to Benoni Shaw. This involves not only a construction of the instrument itself, but its validity and effect in view of chapter 83, § 8, Laws of 1810, which invested the University of Vermont with "full power, right and authority to take charge of, lease, rent and appropriate to the use and benefit of the University forever" certain lands, among which the premises in issue are included. My associates are of the opinion that the estate thus conveyed is a leasehold, and that the relation of landlord and tenant exists between the grantor and the grantee and the latter's heirs, assigns, etc.

The reasons for this conclusion are that the statute under which the conveyance was made authorizes only a lease; the instrument recites on its face that it is a lease; that it contains apt words for a lease, with specific rights and duties as between the parties, reserving an adequate annual rent, and authorizing a reentry for nonpayment of rent or breach of condition; and that the Legislature and this Court have recognized that similar conveyances of public lands conveyed a leasehold estate, as against the objection that they were perpetual in duration.

I believe and would hold that, regardless of whatever name may have been given to this conveyance, it is in its character and incidents a fee upon condition.

My associates say that "it may be conceded that at common law this instrument is in legal effect a conveyance of the fee." The term "as long as grass grows or water runs" is in perpetuity and extends "as fully beyond the use of the land as the term forever." Arms v. Burt, 1 Vt. 303, 309, 18 A.D. 680. It "is as near forever as earthly matters can be." Lampson v. New Haven,2 Vt. 14, 16. Estates granted for this length of time have been held to be in fee. Arms v. Burt, supra; Lampson v. New Haven,supra; Stevens v. Dewing, 2 Vt. 411, 416; Society forPropagation, etc. v. Sharon, 28 Vt. 603, 606.

Conveyances in perpetuity with reservation of rent and right of reentry for nonpayment are well known at common law. 4 Kent, Comm. (9 ed.) 139, citing Co. Litt. 215, a.b. In fact this form of conveyance is older than the common law, for an analogy, more or less complete, may be found in the emphyteusis of Roman law, which was a conveyance of vectigalian or public lands in perpetuity at a fixed annual rent with a provision for forfeiture in case of default in payment. Sohm, Institutes (Ledlies' Translation, 3rd ed.), 348; Hadley, Introduction to Roman law, 199; Maine, Ancient Law, 289-290; Lee, Historical Jurisprudence, 312.

Such conveyances, although often called "perpetual" or (in New York) "manorial leases" are held to pass the fee, the rent being in the nature of a rent charge. Van Rensselaer v. Read, 26 N.Y. 558, 564; Van Rensselaer v. Ball, 19 N.Y. 100; DePeyster v.Michael, 6 N.Y. 467, 497, 57 A.D. 470; Van Rensselaer v.Dennison, 35 N.Y. 395, 399; Lynn v. Chase, 5 Barb. (N.Y.) 14, 15;Kavanaugh v. Cohoes, etc., Corp., 114 Misc. Rep. 590, 187 N.Y.S. 216, 233 et seq. In Pennsylvania, the same result is reached, although the rent is regarded as a rent service, and not a rent charge, because the statute quia emptores (18 Edw. Ch. 1) is not regarded as a part of the common law of that state. Hurst v.Lithgrow, 2 Yeates (Pa.) 24, 1 A.D. 326, 327; Franciscus v.Reigart, 4 Watts (Pa.) 98, 116; Kenege v. Elliott, 9 Watts (Pa.) 258, 262; Skerrett v. Burd, 1 Whart (Pa.) 246, 250, 251.

It is said in Piper v. Town of Meredith, 83 N.H. 107,139 A. 294, 296, 55 A.L.R. 148, that it "is well settled law that a perpetual lease upon condition conveys a fee." In Penick v.Atkinson, 139 Ga. 649, 77 S.E. 1055, 1057, 46 L.R.A. (N.S.) 284, 286, Ann. Cas. 1914B, 842, this language occurs: "We think that a perpetual lease is the substantial equivalent of a fee reserving rent. A grant of land to another reserving a fixed annual rent, with power to enter for the nonpayment of rent, creates a defeasible fee." In Ocean Front Improvement Co. v.Ocean City Gardens Co., 89 N.J. Eq. 18, 103 A. 419, 420, a lease so long as a stipulated rent should be paid was held to be in substance a transfer in perpetuity on condition subsequent in the nature of a rent charge, since the instrument, although in name and general form a lease and containing words appropriate for the creation of a leasehold estate, lacked the essential and distinguishing qualities of a lease, there being no reversion, and the term being unlimited as to time, because the nonpayment of rent was an event which might never happen. In Jackson v.Schutz, 18 Johns. (N.Y.) 178, 184, 9 A.D. 195, the instrument was a perpetual lease, and the court said of it: "This is a `fee simple conditional' at the common law; or a fee simple subject to be defeated upon a `condition subsequent,' by the failure or non-performance of which an estate already vested may be defeated." And in Connecticut Spiritualistic Camp MeetingAss'n v. East Lyme, 54 Conn. 152, 5 A. 849, 850, a lease in perpetuity forfeitable on breach of condition was held to convey a fee and the lessees were to be regarded as owners of the demised premises. In Scott v. Lunt's Admr., 7 Pet. 596, 8 L. ed. 797, a conveyance in perpetuity with grant back of an annual rent, with right of reentry for default in payment, was regarded as passing the fee in the land. The grantors in this case, it is interesting to note, were General George Washington and his wife. Other cases to the same effect are Hudson Tunnel Co. v. AttorneyGeneral, 27 N.J. Eq. 573, 578; Stephenson v. Haines, 16 Ohio St. 478, 486; Brown v. Pierce, 6 Boyce (29 Del.) 326, 344, 99 A. 530, 537.

By whatever name they are called these conveyances are held to operate as assignments and not as leases. 1 Taylor, Landlord and Tenant (9 ed.), para. 50, Van Rensselaer v. Read, supra, 26 N.Y. at page 563; Van Rensselaer v. Dennison, 35 N.Y. 393, 399. And an assignment is a transfer of the whole property in the estate.Trustees of Caledonia County Grammar School v. Kent, 86 Vt. 151, 157, 84 A. 26.

It is true that there are no words of inheritance in thehabendum of this conveyance. But this does not preclude the grant of an estate in fee. The doctrine of the common law that the absence of the word "heirs" caused the estate, though expressed to be perpetual in duration, to be one for life only has been from the earliest times in this State considered to be a rule of construction only and not one of positive law. The intention of the parties, as gathered from the instrument taken as a whole, is to govern. All this clearly appears from the exhaustive opinion of the late Mr. Justice Haselton in Johnson v. Barden, 86 Vt. 19, 20 et seq., 83 A. 721, Ann. Cas. 1915A, 1243. See, also, Blake v. Stone et al., 27 Vt. 475, 476; Noyes v. Nichols, 28 Vt. 159;Collins, Admr. v. Lavelle, 44 Vt. 230, 233; City of Burlington exrel. Board of School Commissioners v. Mayor of City ofBurlington, 98 Vt. 388, 397, 127 A. 892. And as between two constructions equally natural and reasonable, that should be adopted which is most favorable to the grantee. Huntley v.Houghton, 85 Vt. 200, 204, 81 A. 452; Albee v. Huntley, 56 Vt. 454, 458; Adams v. Warner, 23 Vt. 395, 411, 412.

The covenants bind and are for the benefit of the heirs of the grantee, and may be considered in aid of the construction of the instrument. Bennett v. Bennett, 93 Vt. 316, 318, 107 A. 304;DeGoosh v. Baldwin, 85 Vt. 312, 317, 318, 82 A. 182; Mills v.Catlin, 22 Vt. 98, 104. Taking them in connection with the perpetuity of the grant, it seems clear that the intention was to pass an estate which is, at common law, a fee. It is no answer to the question of intention to say that the grantor intended to convey a leasehold. The thing to be determined is not what name it applied to it, but for what length of time and upon what conditions it intended to alienate. Call it what you will, what the plaintiff intended to do was to convey an estate to last forever, reserving a certain rent and a right of reentry under certain contingencies. The fact that it may have intended that this should be a leasehold has nothing to do with it. The intent must be gathered from the language of the instrument and cannot rest in mental purpose alone. Clement v. Bank of Rutland, 61 Vt. 298, 304, 17 A. 717, 4 L.R.A. 425. Neither can one by intent, merely, attach to a transaction a legal significance or character which in its elements it does not possess. The rights of the grantor are those described in the conveyance, and the intent to have them otherwise cannot add a cubit to their stature.

Mr. Washburn says (1 Washburn, Real Property, 6 ed., para. 162): "Every estate which may be of perpetual duration is deemed to be a fee, and may come within the definition of Lord Coke of a fee simple absolute, conditional, qualified or base fee." This is not a fee simple absolute because it is subject to a defeasance in the event of a reentry for nonpayment of rent or for breach of covenant. Neither does it fall within the category of a qualified or base fee. It is, I think, a conditional fee, the incidents of which are quite different from those of the estate last mentioned. It is necessary to be precise about this, for the distinction is important.

The words "as long as" in the phrase "as long as grass grows or water runs" constitutes a technical expression by which a limitation is expressed to relate to time. Board of ChosenFreeholders v. Buck, 70 N.J. Eq. 472, 82 A. 418, 420; Loomis v. G.F. Heublein Bro., 91 Conn. 146, 99 A. 483, 484; First Universalist Society v. Boland, 155 Mass. 171, 174, 29 N.E. 524, 15 L.R.A. 231. But since no time is named and no event is specified at the expiration or happening of which the estate will come to an end, there is no limitation. This is not, therefore, to be classed as a base or determinable fee, for such an estate is not "an absolute estate nor an estate upon condition, but an estate which is to continue till the happening of a certain event, and then to cease." First UniversalistSociety v. Boland, supra; Walsingham's Case, Plowd. 547, 557;Connecticut Spiritualistic Camp Meeting Ass'n v. East Lyme,54 Conn. 152, 156, 5 A. 849.

But while the covenants on the part of the grantee, his heirs, etc., are not in form conditions, yet taken in connection with the provisions for reentry they are so in effect. The rule is thus stated in Attorney General v. Merrimack Manufacturing Co., 14 Gray 586, 612: "The provision for re-entry is therefore the distinctive characteristic of an estate upon condition; and when it is found that by any form of expression the grantor has reserved the right, upon the happening of an event, to re-enter, and thereby revest in himself his former estate, it may be construed as such." Being of such a nature, the breach of a covenant does not of itself and without more cause a defeasance; an entry upon the breach is requisite to revest the estate. Attorney General v. Merrimack Mfg. Co., supra. The land is held in fee, nevertheless, because of the uncertainty of the event and the possibility that the estate may last forever. 4 Kent Commentaries, 9; 2 Blackstone Commentaries, 109, 110;Waldron v. Gianini, 6 Hill (N.Y.) 601, 606; U.S. Pipe Line v.Delaware W.R.R. Co., 62 N.J. Law, 254, 41 A. 759, 763, 42 L.R.A. 572; Des Moines City R. Co. v. Des Moines, 183 Iowa, 1261, 159 N.W. 450, 453, 165 N.W. 398, L.R.A. 1918D, 839.

The difference between a base or determinable fee and a fee upon condition is this, that although in either case the estate is a conditional one, in the former the happening of the event is in itself the limit beyond which the estate no longer exists andipso facto the estate is ended when it occurs by operation of law, without requiring any act to be done by anyone; while in the latter, though the event happen upon which the estate may be defeated, some act is necessary, such as making entry, in order to revest the estate. 2 Washburn, Real Property (6 ed.), para. 970; 4 Kent Comm. (9 ed.) 143.

The significance of this distinction in the instant case lies in the fact that until reentry the grantee, his heirs and assigns are in lawful possession and their estate continues. Hence, since there has been no defeasance, the grantor has obtained no title to the land by the mere act of cutting the timber, which would, if the estate were a base or determinable fee, at once revest the estate. Indeed, it has been held that an entry upon breach of condition is necessary to terminate a so-called "perpetual lease." Folts v. Huntley, 7 Wend. (N.Y.) 210, 215; see, also,Smith v. Blaisdell, 17 Vt. 199, 212; Willard v. Benton, 57 Vt. 286.

So, if this conveyance had been between individuals, and concerned the private property of the grantor, the disposition of which was of his own right, I think it is clear that a conditional fee would have passed. The question now to be considered is whether the same result follows when the premises are so-called public lands, and the grantor a corporation, having by the statute of 1810, the authority only to lease them.

My associates hold, and I entirely agree with them, that a conveyance in perpetuity, with annual rent reserved, and right of reentry for nonpayment, is within the intent and meaning of the statute and is valid and authorized thereunder. I need not repeat here what is so fully and ably stated in the majority opinion concerning the legislative history of this and similar enactments, and the construction placed upon the statutes by the past decisions of this Court.

It must be admitted, however, that these decisions have not been wholly consistent. In White v. Fuller, 38 Vt. 193, 205, 206, it was held that a conveyance "as long as grass grows and water runs," reserving an adequate annual rent, with right of reentry for nonpayment, was valid under the statutory authority to lease, and the Court said that it was "satisfied that the legislature in conferring the authority to `lease' such lands had reference to the meaning of the word according to its popular use, rather than to its strict technical definition." In Society for Propagation,etc. v. Sharon, 28 Vt. 603, and Lampson v. New Haven, 2 Vt. 14, the same result was reached. But in Powers and Peck, Exrs. of Judevine's Estate v. Trustees ofCaledonia County Grammar School, 93 Vt. 220, 237, 106 A. 836, 838, in construing a statute giving authority "to hold and lease" certain school lands, it is said: "The execution of the power must be such as to give not only a present rent annually for the use contemplated, but such as shall reserve to the future objects in succeeding years, the receipt and full enjoyment yearly of an annual rent by a lease for years (in the legal meaning of that term), reserving to the lessor a reversion, and so conditioned as to bring it within the limitations of that power."

Now surely, a "perpetual lease" is not "a lease for years in the legal meaning of that term." And if the statutory authority to lease includes the giving of a "perpetual lease," it cannot be so restricted in meaning as to permit only the giving of a lease for years. But the language in the Judevine Case may be explained by the wording of the statute involved, which was "to hold and lease," the phrase "to hold" being susceptible of a construction by which the grantor was required to retain an interest in the land, which could be done by a lease for years, followed by a reversion (see page 226 of 93 Vt., 106 A. 836, 838). I cannot believe that it was intended to overrule White v. Fuller, Societyfor Propagation, etc. v. Sharon, and Lampson v. New Haven, or to depart from the long-established construction of the statutes which my associates have followed in holding this conveyance valid. In fact, in Trustees of Caledonia County Grammar School v.Kent, supra, 86 Vt. 157, 84 A. 26, which involved the same instrument as that in issue in the Judevine Case, the decisions above mentioned were cited with approval. The opinions in the Judevine and Kent Cases were both written by the late Chief Justice Watson.

But although I agree with my associates in holding this conveyance valid, I differ from them in their conclusion that, because it is so, the relationship of landlord and tenant necessarily exists between the grantor and the grantee and the assigns of the latter. We have here a conveyance which is valid under the common law as regards private lands and valid under the statute as regards public lands. If, in one case, the instrument conveys a conditional fee, it is difficult for me to understand why it does not do so in the other; and why exactly the same language should be construed to mean one thing in one instance, and the opposite in the other.

The various decisions which have upheld this sort of conveyance have called it a "perpetual lease." Of course this is a self-contradictory expression, because a lease cannot be perpetual, but must be for a term of definite duration, at the expiration of which the possession of the premises reverts to the lessor. 2 Blackstone, Comm. 143. By a lease one grants an interest less than his own reserving to himself a reversion.Powers and Peck, Exrs. of Judevine's Estate v. Trustees ofCaledonia County Grammar School, supra, 93 Vt. at page 239, 106 A. 836. Such a reversion is a necessary element in the relation of lessor and lessee. Trustees of Caledonia County Grammar School v. Kent, supra, 86 Vt. at page 156, 84 A. 26; Stephenson v.Haines, 16 Ohio St. 478, 486; Ocean Front Improvement Co. v.Ocean City Gardens Co., 89 N.J. Eq. 18, 103 A. 419, 421; Craig v. Summers, 47 Minn. 189, 49 N.W. 742, 15 L.R.A. 236, 239. It is only by virtue of this interest in the premises that the landlord has a right of action against anyone, whether tenant or third person, who commits an act which causes an injury to the premises, and the impairment of the reversionary estate is the basis of such action. Higgins v. Farnsworth, 48 Vt. 512, 514;Wilcox v. Cate, 65 Vt. 478, 481, 26 A. 1105; Cushing v.Kenfield, 5 Allen (Mass.) 307, 308; Hastings v. Livermore, 7 Gray 194, 198. And the cutting of timber on the demised premises has been held to constitute such an injury. Bulkley v.Dolbeare, 7 Conn. 232, 234.

It would seem to follow that if there is no reversion remaining in the grantor there cannot be a leasehold estate; and, if the reversion is nonexistent, there can be no right of action for an injury to it. There can be no reversion after the grant of a fee simple. Haynes v. Bourn, 42 Vt. 686, 690; Powers and Peck, Exrs.of Judevine's Estate v. Trustees of Caledonia County GrammarSchool, supra. If it is a base or determinable fee, there is only a possibility of reverter. First Universalist Society v. Boland,supra; Institution for Savings, etc. v. Home, etc.,244 Mass. 583, 139 N.E. 301, 302; Pond v. Douglass, 106 Me. 85, 75 A. 320, 322; Lyford v. Laconia, 75 N.H. 220, 72 A. 1085, 1089, 22 L.R.A. (N.S.) 1062, 139 A.S.R. 680; Slegel v. Herbine, 148 Pa. 236, 23 A. 996, 999, 15 L.R.A. 547; Loomis v. G.F. Heublein Bro., supra; Hart v. Lake,273 Ill. 60, 112 N.E. 286, 289; Upington v. Corrigan, 151 N.Y. 143,45 N.E. 359, 37 L.R.A. 794, 797; Zane, "Determinable Fees in American Jurisdiction," 17 Harv. Law Rev. 297, 299. If it is a fee upon condition, there is not even such possibility for the right of reentry is a mere right of action, and, if enforced, the grantor is in by the forfeiture and not by reversion. Nicoll v.N.Y. Erie R.R. Co., 12 N.Y. 121, 139; DePeyster v. Michael, 6 N.Y. 467, 468, 57 A.D. 470; Hudson Tunnel Co. v. AttorneyGeneral, 27 N.J. Eq., 573, 578; Ocean Front Improvement Co. v.Ocean City Garden Co., 89 N.J. Eq. 18, 103 A. 419, 421; Craig v. Summers, 47 Minn. 189, 49 N.W. 472, 15 L.R.A. 236, 239; Gray, Rule against Perpetuities (3 ed.), para 30.

In Powers and Peck, Exrs. of Judevine's Estate v. Trustees ofCaledonia County Grammar School, supra, it was held that there could be no reversion when the conveyance was in perpetuity with a gross sum paid as consideration for the transfer, and no right of reentry reserved. So far as the lack of a reversion is concerned this case is not distinguishable from the instant one, for the thing which renders the existence of a reversion impossible is the perpetuity. To call this instrument a lease is only to beg the question. To do so, does not confer upon the parties the rights and liabilities of landlord and tenant to a greater extent than the instrument itself provides. The magic of the name does not cause a reversion to materialize out of nothing. Like Glendower one may call spirits from the vasty deep, but there must not be forgotten the pertinent inquiry of Hotspur, whether they will come when called.

This case should be decided, I believe, not by taking refuge behind a name, but by an analysis of the true nature of the conveyance. It is said in Mendenhall v. First New Church Society,177 Ind. 336, 342, 98 N.E. 57, 60, that "the character of a written instrument is to be determined from the real nature of the transaction, and not from the form nor the name which the parties apply to the instrument." Such an analysis shows that the grantee took an estate in perpetuity with a condition annexed to it, and since, admittedly this is valid under the statute, I fail to understand why it should be construed to be something else than it really is, simply because it is called that. Why should something which plainly is not therein, either by the terms of the instrument or by its legal effect, be placed there by judicial construction? Why should a conveyance in perpetuity be held to carry the incident of a reversion?

Since there can be no reversion here, there can be no right of action for an injury to it. The remedy of the plaintiff is by reentry for breach of condition, or by an action for breach of covenant against the person bound thereby. The defendant who has purchased and cut the timber has obtained title to it, unaffected by the fact that the person from whom he bought was under a contractual obligation not to cut or permit the cutting. The principle is the same as where a lessee for years sells the crops to a third person, in violation of a provision in the lease that he shall not dispose of them. If no lien has been reserved, the remedy of the lessor is against the lessee upon the agreement, and not against the purchaser. O'Brien v. Waite, 104 Vt. 181,157 A. 828, decided at the January, 1932, Term of this Court, and cases therein cited.

It is said, however, that if this is a conveyance in fee, being of public lands it is void. Since it is held to be valid, this amounts to saying that, because it is valid, it cannot be a fee. Of course the validity of the conveyance for this reason cannot change its true character. It is what it is, valid or invalid. It is true that it has been said repeatedly by this Court that a conveyance in fee of public lands is void, but I submit that an analysis of the decisions which have announced this principle will show that it has been restricted in application to conveyances of a fee simple absolute. In Trustees of CaledoniaCounty Grammar School v. Kent, supra, and again in Powers andPeck, Executors of Judevine's Estate v. Trustees of CaledoniaCounty Grammar School, supra, the conveyance was in perpetuity, the consideration was the payment of a gross sum of money, and there was no provision for a reentry. There can be no dispute as to the character of this transaction. It was a fee simple absolute and nothing else. In Capen's Admr. v. Sheldon, 78 Vt. 39, 61 A. 864, there was a deed of a minister lot executed in accordance with a vote of the town, purporting to convey "in fee for $1,000." Here was an absolute conveyance, without condition, which was a fee simple absolute. In Society for Propagation, etc. v. Sharon, supra, the conveyance was "as long as water runs and grass grows * * * * yielding and paying as rent one barley corn annually, if demanded." There was no provision for reentry. In holding this conveyance void, the Court said (page 616 of 28 Vt.) that it was a lease only in form, but purported to convey the fee because no rent was reserved for the nonpayment of which an ejectment could be maintained; there was no duty upon the grantee to surrender the premises upon any condition whatever; and the annual rent of one barley corn payable only if demanded was nominal and the maxim de minimis might well apply. Plainly, the estate here attempted to be conveyed was a fee simple absolute. In Williams v. Goddard, 8 Vt. 492, the validity of a conveyance in fee of a minister lot, by the first settled minister of the town, depended upon whether the title to the lot had vested in the minister under the charter of the town. But the conveyance was an absolute one. In Lampson v.New Haven, supra, a glebe lot was conveyed "as long as water runs and grass grows" and the consideration was the grantee's promissory note payable on or before 100 years after date, with interest annually, and the grantee gave a mortgage upon the lot and upon another lot to secure its payment. No right of reentry is mentioned. Here, again the estate described was a fee simple absolute. In Bush v. Whitney, 1 D. Chip. 369, wherein it was said that the conveyance of a glebe lot in fee was void, nothing appears concerning the terms of the instrument, and so the case can hardly be considered an authority one way or the other upon the point I am discussing.

In fact, if the position of the majority is accepted, it is difficult to avoid impalement upon the horn of a dilemma. On the one hand it is said, broadly, that a conveyance in fee of public lands is void; on the other, that a conveyance of what, at common law, would be a conditional fee is valid. The only way of escape, as I see it, is to recognize the fact that the principle has not been, and is not to be, applied where the fee is subject to a right of reentry for breach of condition. That this distinction has been observed in practice clearly appears in Lampson v. NewHaven, supra, wherein after announcing the invalidity of the instrument previously executed, a decree was entered which permitted the execution of a "perpetual lease" of the glebe lot, reserving a reasonable annual rent with right of reentry for nonpayment; and in White v. Fuller, supra, 38 Vt. 206, wherein it is said that "we have been unable to find any case in which a lease creating a tenancy and reserving an adequate annual rent, with a right of re-entry on the non-payment of the rent or non-performance of other conditions has been adjudged to be void on account of being perpetual in its duration." True enough, these decisions use the word "lease" but, as I have said before, the name does not matter when we look to the substance and real character of the transaction; and, besides, we have the warning in White v. Fuller that the word is not used in its technical but in its popular meaning.

In what I have said, I have treated the covenant against cutting the timber as a proper condition. Whether, if this is a fee, the covenant is valid is another question upon which I do not think it is necessary to dwell. It is enough to call attention to DePeyster v. Michael, supra, 6 N.Y. at pages 491, 493, 57 A.D. 470, wherein it is said that, in a conveyance in fee, a condition that the grantee shall not commit waste or take the profits is void, "the reason being that a fee simple estate and a restraint upon its alienation cannot in their nature coexist. The ownership of the fee cannot exist in one person, while the ownership of the right of alienation and of its profits exists in a different person." This is a well understood rule of law, and further citation of authority would be superfluous.

I do not share in the forebodings of my brethren that a failure to construe such a conveyance as a lease "would unsettle and destroy many titles hitherto believed to be good." The purpose in giving "perpetual leases" of public lands was, as the majority opinion points out, to encourage the clearing of forest land and its use for agriculture. Settlers would not accept such conveyances unless they were assured that they and their children would enjoy the fruits of their labors. "This result," say my associates, "and a reasonable and adequate rent for the lands could be secured only by long term leases." The purpose is as well fulfilled if the conveyances in perpetuity are construed to pass a conditional fee as if they are construed to pass a leasehold. In neither case can the rent be increased during the term. In neither case can the grantor repossess itself of the premises except as provided therein. There is, it seems to me, far more danger that the titles of the grantees will be disturbed by holding that the conveyances are leases, than that the titles of the grantors will be affected by saying that they pass a conditional fee, even though the grantors may have believed, when they executed the instrument, that they meant something different than their language stated.

I would reverse the judgment, and enter judgment for the defendant.