Mountain Brow Lodge No. 82, Independent Order of Odd Fellows v. Toscano

The Appellant commenced an action to quiet title to a parcel of real property. The controversy between the parties centers on language in a deed of conveyance which reads “said property is restricted for the use and benefit of the second party, only; and in the even the same fails to be used by the second party or in the even to the sale or transfer by the second party of all or any part of said lot, the same is to revert to the first parties herein, their successors, heirs or assigns.” The Respondents, Toscano and other trustees of the deceased grantor (Respondents), maintain that the language creates a fee simple subject to a condition subsequent and the conveyance is valid and enforceable. The Appellant argues the restrictive language is an absolute restraint on the alienation of land and is void. The Appellant also argues if the language is not void then the reversionary clause only goes into effect if the Appellant sells or transfers the land. The trial court rendered jud gment in favor of the Respondents and the case was appealed. The appeals court determined the language of the clause was not void as the condition restraining alienation could be severed from the condition of use. The court concluded that the portion of the clause relating to land use, when construed as a whole and in light of the surrounding circumstances, created a fee subject to condition subsequent with title to revert to the grantor. The appeals court expunged the words creating restraint on alienation from the clause.