I agree with the majority opinion that the estate conveyed by Eugene Wallace to the railroad company was a determinable fee upon a condition subsequent, leaving in Wallace and his heirs a mere possibility of reverter upon re-entry. I further agree that such right was not transferable by the grantor or his heirs to anyone other than the owner of the fee.
However, with reference to the effect of an attempted conveyance to a stranger to the title of the right reserved in the deed, my opinion is that we should adhere to the common-law rule prevailing in almost all jurisdictions where, like our own, the statutes remain silent on the subject.
In the absence of statute to the contrary, an attempted conveyance has always been regarded as a renunciation and extinguishment of the right of reverter and re-entry, thus placing in the owner of the determinable fee an absolute estate in fee simple. In 19 Am. Jur. 546, § 83, where this subject receives recent treatment, it is said:
"The rule has grown up and has been followed in all cases in which the question has arisen that in the absence of a statute changing the rule not only is the right of re-entry not transferable, but an attempt to transfer it to a third person has in addition the effect to destroy the right totally, even as far as the grantor and his heirs are concerned."
Notwithstanding the personal criticism leveled at the rule by the annotator in L. R. A. 1916F, 311, there was, and still remains, a real and substantial reason why the possibility of reverter on re-entry should become extinguished upon an attempted transfer thereof to one other than the owner of the determinable fee. Since the right to declare a forfeiture and to re-enter is not an estate, its transfer falls within the classification of transactions which in equity jurisprudence was frowned upon as savoring of the character of champerty or maintenance. 11 C. J. 235, § 8. Had our own statute been in operation at the time the deed in question was executed, it would have been subject to grave suspicion as constituting a champertous conveyance. 21 O. S. 1941 § 548. *Page 643
In such case, since there existed no estate capable of being conveyed, and any attempted conveyance being in its nature champertous, the transaction was not to be undone by the courts so as to place the parties in their former positions, but, to avoid the taint of champerty, and to give to the grantor the presumption of good intentions, the attempted conveyance was treated as a release, or a relinquishment, or as an ordinary disclaimer on the part of the grantor of any further claim or demand upon the land.
The statement in the majority opinion that "in any event no reason for the rule exists today and none existed in 1891" is not supported by authority or convincing argument. The common-law principle constituted a rule of action in Oklahoma in 1891. Refusal to follow the rule should be based on something more than inability to understand it.
In my opinion we should not adopt the purported rule quoted in the majority opinion from Restatement of the Law, to the effect that where an owner transfers a portion only of his land on condition subsequent and later executes a conveyance which, by metes and bounds, includes the land on which he reserved the power of termination, the subsequent conveyance is not an attempt to transfer such power (Id. Property, Future Estates, Pt. 2). The text gives no reason for the statement, and cites no authority. And it would seem not to have any reason to support it. The subsequent all-inclusive conveyance should be considered at least prima facie evidence of an intention and attempt to convey the power of termination. If the tract formerly conveyed on condition subsequent was included in the later deed by mistake, that would present another question.
The majority opinion calls attention to the fact that the Supreme Court of Illinois has recently refused to apply the rule that an attempted conveyance of a naked possibility of reverter destroys the same. Pure Oil Co. v. Miller-McFarland Drilling Co., 376 Ill. 486, 34 N.E.2d 854, 135 A. L. R. 567. There, the conveyance was held to be, and actually was, a determinable fee on conditional limitation, which, unlike an estate on condition subsequent, does not require re-entry in order to bring about the reverter. The court very properly refused to apply the rule that the subsequent conveyance destroyed the right to reverter.
It is also indicated in the majority opinion that the Supreme Court of Oregon has departed from the rule formerly announced in Wagner v. Wallowa County, 76 Or. 453, 148 P. 1140, L. R. A. 1916F, 303, to the effect that an attempted conveyance of the right of reverter under a grant of a determinable fee on condition subsequent destroyed the right. The decision referred to is Magness v. Kerr, 121 Or. 373, 254 P. 1012.
In the latter case the court defined the condition in the original deed as one of limitation and not a condition subsequent, and refused to extend the rule announced in the Wagner Case, supra, to the subsequent conveyance. The two cases are not in point here.
Inasmuch as our statute is silent on the effect of an attempted conveyance of a possibility of reverter, the common-law principle that such attempted conveyance destroys the condition constitutes a rule of action in this state. (Coline Oil Co. v. Cannon, 144 Okla. 133, 289 P. 763.)
In Halpin v. Rural Agricultural School Dist. No. 9, Gaines Twp., 224 Mich. 308, 194 N.W. 1005, it was said:
"The authorities appear to hold, without exception, that an attempt upon the part of the grantor to convey this possibility of reverter before the condition is broken . . . , extinguishes the right . . . to re-enter after condition is broken."
That rule has been followed a number of times by the Michigan court and as recently as 1938 in Dolby et al. v. Dillman,283 Mich. 609, 278 N.W. 694, 117 A. L. R. 538. *Page 644
The same rule obtains in Colorado, Kansas, Maine, Massachusetts, Michigan, New York, Ohio, Oregon, Tennessee, and Texas.
Believing, as I do, that we should follow that rule in determining the effect of the deeds executed in 1891, I am of the opinion that the attempted conveyance by Eugene Wallace to J.B. Wheeler on October 13, 1891, destroyed Wallace's right of re-entry to the north 40 feet of the lots in question, and thereby the railroad company became the owner of the unconditional fee-simple title thereto. This title subsequently passed to and is now held by Oklahoma City.
I, therefore, respectfully dissent.