Hanby, Appellant, v. Bailey.
Deed — Estate wpon condition — Bight to the reversion — Devise—Will.
1. Where a person purchases ninety-three acres of land at a sheriff’s sale and five years thereafter conveys by deed one acre and sixteen perches thereof to trustees for the use of a religious society “for a place to hold their religious meetings and for a burying ground to bury their dead,” with a proviso that if it shall cease to be so used the premises shall revert into the estate of the grantor, and forty years thereafter the grantor dies leaving a will by which he devises to his son the large tract “with the appurtenances which I purchased at sheriff’s sale,” the son takes no interest in the small lot conveyed in trust, and if such lot *245ceases to be used for religious purposes, the successors in title to the larger lot claiming under the son have no right to claim any interest in the smaller lot.
2. In such a case whether the estate in the small lot was a base fee or an estate upon condition, the only persons entitled to an interest in it, when it ceased to be used for religious purposes, were the heirs at law of the grantor.
3. It seems that the estate in the small lot created by the deed was an estate on condition. ' '
4. The right of re-entry on the smaller lot as for condition broken, was not a right appurtenant to the larger track within the meaning of the devise.
Argued Dec. 7, 1911.
Appeal, No. 268, Oct. T., 1910, by plaintiffs, from judgment of C. P. Delaware Co., March Term, 1909, No. 250, on verdict for defendant in case of Arthur Hanby and Louisa Hanby, his wife, v. Joshua P. Bailey.
Before Rice, P. J., Henderson, Morrison, Orlady, Beaver and Porter, JJ.
Affirmed.
Ejectment for a lot of land in Upper Chichester town-. ship. Before Broomall, J.
At the trial, under direction of the court, the jury returned a verdict for defendant upon which judgment was entered.
In an opinion refusing judgment for plaintiffs n. o. v. Broomall, J., stated the facts to be as follows:
Upon the trial of this ease the plaintiffs based their claim for a verdict for the possession of the property in dispute by showing the following chain of title:
1. A sheriff’s deed to Salkeld Larkin, dated July 27, 1824, conveying a tract of land bounded on the east by the Concord road, and containing ninety-three acres and forty-three perches. The Concord road is the same as the Boothwyn or Chichester road. The tract of land conveyed by this deed includes the ground, in dispute.
2. Deed of Salkeld Larkin to Cyrus Mendenhall and others, dated December 25, 1829, in which the following extracts relate to the plaintiffs’ title. The consideration is this: “For and in consideration of the regard which he *246hath for the Society of Friends, composing Chichester Preparative Meeting, and for divers other good causes and considerations, and also for and in consideration of the sum of one dollar.” The land conveyed contains one acre and sixteen perches. This includes the land in dispute. The granting clause is, “hath given, granted, aliened, enfeoffed and confirmed, and by these presents doth give, grant, alien, enfeoff and confirm unto the said Cyrus Mendenhall and others, their heirs and assigns.” The habendum clause of the deed is, “to have and to hold the said tract of one acre and sixteen perches of land hereby granted or mentioned or intended so to be with the appurtenances unto the said Cyrus Mendenhall (and others) their heirs and assigns forever, in trust for the use, benefit and behoof of the religious Society of Friends, holding their meeting at Upper Chichester aforesaid, and composing Chichester Preparative Meeting of Friends in unity with the yearly meeting of the same religious Society first established in Philadelphia, and which is in unity with and acknowledged by the yearly meeting of the Society of Friends in London for a place to hold their religious meetings and for a burial ground to bury their dead; provided always that they, the said Trustees, nor either of them, nor any other person or persons succeeding them in the said trust, who shall be declared by the members of Concord Monthly Meeting of the same religious Society in Delaware County aforesaid for the time being out of unity with them, shall be capable of executing the said trust or standing seised to the uses aforesaid, nor have any right or interest in the said premises while they shall remain, but in all such cases, and also when any of them or others succeeding them in the said trust shall depart this life, that then it shall be lawful for the members in their preparative meeting as often as occasion shall require to make choice of others to manage and execute the said trust; and also upon this further trust and confidence that they and the survivor of them, and the heirs of such survivor and others that shall from time *247to time hereafter stand seised in the said trust upon the request of the said Preparative Meeting assign over the said trust or convey and deliver the said premises to such person or persons as the said meeting shall order or appoint to and for the uses, interests and purposes aforesaid. Provided, always nevertheless that if the members of the Preparative Meeting for the time being shall at any time hereafter obtain exclusive and peaceable possession of the meeting-house and premises in the said Township of Upper Chichester aforesaid belonging to the said meeting and formerly used and occupied as a place of meeting and as a burying ground, and shall cease to use and occupy the house and lands hereby granted as a place to hold their religious meetings in and as a burying ground, that then the premises hereby granted shall revert back unto the estate of the said Salkeld Larkin, and this present deed become null and void to all intents and purposes.”
3. Will of Salkeld Larkin, dated July 19, 1867, containing the following extract.
“Third: I give and devise to my son James Larkin, his heirs and assigns forever, all that tract of land lying on the West side of the Marcus Hook Road, containing about eighty acres, with the appurtenances which I purchased at Sheriff’s sale, subject to the payment of such legacies and bequests as is hereinafter mentioned.”
4. Divers mesne conveyances to the plaintiffs describing the above tract of eighty acres by metes and bounds, which includes the property in dispute, and by which title is deduced to the plaintiffs.
5. Agreement of the parties upon trial that the property in dispute ceased to be used for the purposes of the trust since 1884.
Error assigned among others was in refusing judgment for defendant n. o. v.
A. B. Geary, for appellants.
— A conveyance of land as a whole or part of a designated or known tract passes the *248tract described without regard to quantity: Wood v. Jones, 7 Pa. 478; Frederick v. Campbell, 13 S. & R. 136; Hall v. Powell, 4 S. & R. 456; Anderson v. Nesbit, 2 Rawle, 114; Brown v. Boyd, 9 W. & S. 123.
Under special circumstances, the word appurtenance has been allowed to include the land; and it undoubtedly includes an easement or privilege on another’s land when annexed to a tenement: Murphy v. Campbell, 4 Pa. 480; Swartz v. Swartz, 4 Pa. 353.
All interest in land may be devised, conveyed or sold in Pennsylvania and whether the owner is in possession or not: Scheetz v. Fitzwater, 5 Pa. 126; Henderson v. Hunter, 59 Pa. 335; Courtney v. Keller, 4 Penny. 38; Chess’s App., 87 Pa. 362; Humes v. McFarlane, 4 S. & R. 427.
The estate granted by Salkeld Larkin was a determinable fee and not an estate upon condition: Kirk v. King, 3 Pa. 436; Scheetz v. Fitzwater, 5 Pa. 126; Henderson v. Hunter, 59 Pa. 335; Gumbert’s App., 110 Pa. 496; Siegel v. Lauer, 148 Pa. 236, reported as Siegel v. Herbine, in 10 Pa. C. C. Rep. 347, and 15 L. R. A. 547; Schaeffer v. Messersmith, 10 Pa. C. C. Rep. 366.
Albert J. Williams, for appellee.
— The estate granted by the deed was a fee on condition: Com. v. Stauffer, 10 Pa. 350; Irvine v. Sibbetts, 26 Pa. 477; Cooper v. Pogue, 92 Pa. 254; McKissick v. Pickle, 16 Pa. 140.
The right of entry upon the breach of a condition subsequent is a mere possibility of a reverter and is not an interest in land: Upington v. Corrigan, 45 N. E. Repr. 359; Hamilton v. Elliott, 5 S. & R. 375; Nicoll v. N. Y. & Erie R. R. Co., 12 N. Y. 121; Rice v. Railroad Corp., 94 Mass. (12 Allen) 141; Guild v. Richards, 82 Mass. (16 Gray) 309; Southard v. Railroad Co., 26 N. J. L. 13.
If the testator had a devisable interest, he did not intend to devise it to his son James: Kirk v. King, 3 Pa. 436.
July 18, 1912:
Opinion by
Henderson, J.,
We agree with the learned judge of the court below *249that the conveyance from Salkeld Larkin to Cyrus Mendenhall and others, trustees of Chichester Preparative Meeting of Friends, created an estate on condition. The conveyance is to the grantees, their heirs and assigns, for the purposes therein indicated. The declaration of the purpose for which the trust was created we do not regard as a limitation of the estate. The second proviso contains the condition under which the title might be defeated. It is not necessary to énter into a consideration of the distinction between an estate on condition and a qualified fee, for on other grounds which we deem con-, elusive the judgment must be affirmed. If it be conceded as contended by the appellants that the estate created is a conditional fee the evidence does not exhibit a title which entitles them to a verdict. They claim under the will of Salkeld Larkin, grantor to the trustees above named, in the third paragraph of which there is a devise to James Larkin, son of the testator, his heirs and assigns, of “all that tract of land lying on the west side of the Marcus Hook Road, containing about eighty acres, with the appurtenances which I purchased at sheriff’s sale.” It was out of the farm here referred to that the land was granted to the church, and the plaintiffs who hold through sundry conveyances from James Larkin contend that by the abandonment of the premises as a place of worship they succeed to the title through this devise to James Larkin. At the time Salkeld Larkin made his will and when he died and for a long time thereafter the property in controversy was occupied by the religious society as contemplated in the deed from Salkeld Larkin to it. He was not in possession of the church lot, therefore, at the time of the making of the will, nor was it then a part of the farm which he bought at sheriff’s sale. His title had passed out by a deed made nearly forty years before. That title could continue indefinitely and there is no reason to suppose that the testator had in mind the contingency that this small piece of land might fall back to him. Moreover, what the devisee got under the will was *250a farm. It had dimensions and physical features and was well known by the testator and doubtless also by the son. The devisee took whatever land had been owned by his father under the description given in the will but the right of the testator under his deed to the church was in no sense a farm nór land. The estate was out of him and all that remained was a right of re-entry for condition broken if the estate be treated as one on condition, or the possibility of reverter if a limited fee: First Universalist Society, etc., v. Boland, 155 Mass. 171; Church in Brattle’s Square v. Grant, 69 Mass. 142; De Peyster v. Michael, 6 N. Y. 467, 506; Nicoll v. N. Y. & E. Co., 12 N. Y. 121. This right cannot be regarded as an appurtenance to the farm within the meaning of the devise and that is the only ground on which the plaintiffs can pretend to claim. An appurtenance is a thing which belongs to another thing as principal and which passes as incident to the principal thing: Harris v. Elliott, 35 U. S. 25; Angell, Watercourses (7th ed.), para. 153; and generally anything necessary to the enjoyment of a thing: 4 Kent, Com. 418; 1 Bouvier, Law Dict. 158. Easements and servitudes necessary to the enjoyment of the land and, under special circumstances, land itself, when necessary to the enjoyment of the principal thing conveyed or devised, are covered by the word “appurtenances”; but an appurtenance which is devised or conveyed by general terms in a will or deed must be something which attaches necessarily or reasonably to the land so devised or granted. The appurtenance and the thing to which it is appurtenant must agree in nature and quality. Now the church lot was in no sense subordinate to the farm from which it was taken nor was it necessary to the enjoyment of the farm. As has been stated it had not been used in connection with it for a long time and had none of the features of an appurtenance. The general terms of the devise were therefore insufficient either to pass the land or the right of entry or reverter. The will, of course, did not warrant the title to the devisee and the description as is generally the case in such docu*251merits was not given with the exactness observed in the preparation of deeds of general warranty, but it described to the clear understanding of the parties interested the land which remained to the testator after the grant to the church. There was neither a bequest nor an attempt to bequeath this right of entry or possibility of reverter to the son. It is well settled that no one can take advantage of the nonperformance of a condition subsequent annexed to an estate in fee but the grantor or his heirs. It is not an estate in land and must be taken advantage of by a re-entry by the person entitled to exercise that privilege: Schulenberg v. Harriman, 88 U. S. 44; Nicoll v. N. Y. & E. R. R. Co., 12 N. Y. 121; 4 Kent, Com. 122; 2 Black. Com. 154. The possibility that the land might revert to the grantor or his heirs was the interest which the testator had if the grant be treated as a determinable fee and we have not been shown nor have we been able to find any authorities which would justify us in holding that this possibility of reverter attached to the church lot would pass as an appurtenance under a devise applicable to another piece of land.
The plaintiffs having failed to establish the title the judgment should be affirmed.