The difference between a fee simple determinable (or determinable fee) and a fee simple subject to a condition subsequent is solely a matter of judicial interpretation of the words of a grant.
This case involved an action to quiet title to real property located in Lawrence County, Illinois. Its resolution depended on the judicial construction of language in a conveyance of that property. Grantor's decedent conveyed property interest to the plaintiff, who sought to quiet title. Defendant grantee opposed the action, alleging that as grantor never reentered property he did not own property and could not convey interest. The property deed conveyed a defeasible fee simple to grantee and created future interest in grantors. The lower court held that if grantor had only naked right of reentry for condition broken, then he could not own the property until he had legally re-entered the land, but if the possibility of a reverter existed, then he owned the property as soon as it ceased to be used for the deed's purpose. The lower court held that the word "only" contained in the granting clause established that the grantor intended to create fee simple determinable rather than fee simple subject to condition. The Court of Appeals reversed and remanded the lower court's decision.
Did the trial court correctly conclude that the deed created a fee simple subject to condition?
A close analysis of the wording of the original grant shows that the grantors intended to create a fee simple determinable followed by a possibility of reverter. Here, the use of the word "only" immediately following the grant "for school purpose" demonstrates that the grantors wanted to give the land to the school district only as long as it was needed and no longer. The language "this land to be used for school purpose only" is an example of a grant which contains a limitation within the granting clause. It suggests a limited grant, rather than a full grant subject to a condition, and thus, both theoretically and linguistically, gives rise to a fee simple determinable.