the kind now under consideration is created.58

It is neces

sary, it is said, that the event named as terminating the estate be such that it may by possibility never happen at all, since it is an essential characteristic of a fee that it may possibly endure forever.587

Question as to existence of estate.

By a number of writers of the highest authority, it is denied that such an estate as that here considered can, on principle, exist since the passage of the statute of Quia Emptores; their view being, stated in general terms, that, as the whole fee is granted, there is no estate in reversion left in the grantor to entitle him to the possession on the happening of the contingency, and that, since the statute referred to

586 Morris Canal & Banking Co. v. Brown, 27 N. J. Law, 18; Gillespie v. Broas, 23 Barb. (N. Y.) 370; Board of Education v. In. habitants of Van Wert, 18 Ohio St. 221; First Universalist Soc. of North Adams v. Boland, 155 Mass. 171, Finch's Cas. 425.

587 4 Kent, Comm. 9; Challis, 197, citing 1 Preston, Estates, 479; First Universalist Soc. of North Adams v. Boland, 155 Mass. 171, Finch's Cas. 525. The possibility referred to is evidently, however, of a legal, rather than a physical, character. It is physically impossible that St. Paul's or a tree shall stand forever; but the law does not apparently take cognizance of that fact, at least in this connection. See 4 Kent, Comm. 9.

Determinable fees are divided by Mr. Challis into two classes, according to whether the event named as terminating the fee is or is not liable at any time to become "impossible to happen." If it is such an event, the determinable fee is, when the event so becomes impossible, enlarged into a fee simple. In the other class of cases, where the event is not liable to become impossible, the estate can never be enlarged into a fee simple except by a release by the person who owns the possibility of reverter. Challis, Real Prop. 200. He names as the only case in which the event can become impossible one in which the event is an act to be done or suffered by a living person, the impossibility accruing on such person's death. But the impossibility may apparently accrue in other cases. See Williams v. Cincinnati First Presbyterian Soc., 1 Ohio St. 478; Friedman v. Steiner, 107 Ill. 125.

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prevents the relation of tenure between the grantor and grantee such as would entitle him to resume possession as by escheat, there is consequently no principle upon which the right of reverter can be supported.588 The existence of such an estate has, however, been assumed by the great majority of the earlier writers on real property;589 and in this country its existence has been recognized in a considerable number of decisions.590

Incidents of estate.

After the grant of such an estate by a tenant in fee simple, he has no estate in reversion left in him, since he has

58 1 Sanders, Uses & Trusts, 208; 1 Leake, 36, and note (d); Pollock, Land Laws (2d Ed.) 221; Edwards, Prop. Land (2d Ed.) 48. See Gray, Perpetuities, §§ 31-42, where this view is presented at length. See, also, an article by the same writer in 3 Law Quart. Rev. 399. The same view is apparently taken by Jessel, M. R., in Collier v. Walters, L. R. 17 Eq. 252.

589 See Challis, Real Prop. c. 17, and an article by the same writer in 3 Law Quart. Rev. 403, where the view is taken that the Statute of Quia Emptores, applying in terms only to estates in "fee simple," means thereby estates in "fee simple absolute.”

50 See, in addition to the cases above cited, First Universalist Soc. of North Adams v. Boland, 155 Mass. 171, Finch's Cas. 525; Stuart v. Easton, 170 U. S. 383; Slegel v. Lauer, 148 Pa. St. 236; Friedman v. Steiner, 107 Ill. 125; Hall v. Turner, 110 N. C. 292; Morris Canal & Banking Co. v. Brown, 27 N. J. Law, 13; Gibson v. Hardaway, 68 Ga. 370; Halifax Congregational Soc. v. Stark, 34 Vt. 243; Leonard v. Burr, 18 N. Y. 96, Finch's Cas. 521. For other cases see 1 Sharswood & B. Lead. Cas. Real Prop. 17 et seq., where this subject is well treated.

In some decisions, a statutory dedication of land for a particular public use is considered to create an estate of this character in the public, subject to termination upon the cessation of such use. Board of Education v. Inhabitants of Van Wert, 18 Ohio St. 221; Gebhardt v. Reeves, 75 Ill. 301; Matthiessen & H. Zinc Co. v. City of La Salle, 117 Ill. 411; Hooker v. Utica & M. Turnpike Road Co., 12 Wend. (N. Y.) 371. See People v. White, 11 Barb. (N, Y.) 26; Thayer v. McGee, 20 Mich. 195. Contra, Pettingill v. Devin, 35 Iowa, 344.

granted away the fee, and there cannot be more than one fee in the same land.591 The right in the grantor to the possession of the land upon the happening of the contingency is a mere possibility, and is termed a "possibility of reverter."592 A mere possibility such as this would seem, on principle, not to be assignable;593 but a contrary view has been taken in one state.594

The owner of the estate has all the rights of an owner in fee simple, with the same rights of user and power to commit unlimited waste;595 but if he conveys his estate, the grantee takes it subject to the same liability to termination as existed before the grant.596

501 Challis, Real Prop. 64.

592 Challis, Real Prop. 63; 4 Kent, Comm. 10; 2 Sharswood & B. Lead. Cas. Real Prop. 26; First Universalist Soc. of North Adams v. Boland, 155 Mass. 171, Finch's Cas. 525; Brattle Square Church v. Grant, 3 Gray (Mass.) 142, 150.

593 Challis, Real Prop. (2d Ed.) 73, 201.

594 In Pennsylvania it has been held that a possibility of reverter is assignable. Slegel v. Lauer, 148 Pa. St. 236; Scheetz v. Fitzwater, 5 Pa. St. 126. See, also, Pemberton v. Barnes [1899] 1 Ch. Div. 544.

5951 Cruise, Dig. tit. 1, § 80; Walsingham's Case, Plowd. 557; Challis, Real Prop. 207.

6964 Kent, Comm. 10; Challis, Real Prop. 207.

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CHAPTER V.

EQUITABLE OWNERSHIP.

L. USES AND THE STATUTE OF USES.

§ 82. Origin of uses.

83. Jurisdiction assumed by chancery.

84.

Characteristics of a use.

85. Creation of a use.

100.

101.

Appointment and substitution of trustees.
Termination of the trust.

102. Charitable trusts.

III. EQUITABLE CONVERSION.

-103. The doctrine in general.

104. Results of application of doctrine.

Imperative direction necessary.

105.

106.

Time of conversion.

107.

Election against conversion.

108. Conversion by paramount authority.

109. Resulting interests under trust for conversion.

A use, as it originally existed, was a right to the benefit and profits of land, the seisin or possession of which was in another. Such rights were not recognized in the courts of law, but chancery assumed jurisdiction of their enforcement.

By the Statute of Uses, it was provided that, in the case of a use, the seisin should be transferred to the person entitled to the use, and thereafter uses ceased to exist as equitable obligations separate from the legal title, except in certain cases which were decided not to be within the operation of the statute, and three of which have survived under the name of The uses thus excepted from the operation of the

trusts.

statute are:

(1) Active uses.

(2) Uses in chattel interests.

(3) Uses to the legal grantee. (4) Uses upon a use.

82. Origin of uses.

The law of estates in land, as heretofore stated and explained, was established in the courts of common law. At a later period, the court of chancery established a concurrent jurisdiction over land by means of the system of uses, which latter subsequently, owing to the Statute of Uses, became a part of the law of land as recognized in the common-law courts, and exercised a profound influence, more particularly upon the law of future estates and the transfer of interests in land, while in the court of chancery it developed into the

modern law of trusts.

The practice of conveying land to one person to the use of another seems, according to the investigations of the modern