LECTURE LXIII.

OF ESTATES IN REVERSION.

A REVERSION is the return of land to the grantor, and his heirs, after the grant is over; or, according to the formal definition in the New-York Revised Statutes, it is the residue of an estate left in the grantor, or his heirs, or in the heirs of a testator, commencing in possession on the determination of a particular estate granted or devised. It necessarily assumes, that the original owner has not parted with his whole estate or interest in the land; and, therefore, if he grants land in tail, or for life, or years, he has an interest in the reversion, because "he hath not departed with his whole estate." If A. has only a possibility of reverter, as in the case of a qualified or conditional fee at common law, he has no reversion; but such a distinct interest arose, as we have already seen, after the conditional fee at common law, was, by the statute de donis, turned into an estate tail.

The doctrine of reversions is said, by Sir William Blackstone, to have been plainly derived from the feudal

• Co. Litt. 142, b. Vol. i. 723, sec. 12.

• Co. Litt. 22, b.

• See supra, p. 10. 12.

• 2 Com. 175.

constitution. It would have been more correct to have said, that some of the incidents attached to a reversion were of feudal growth, such as fealty, and the varying

rule of descent between the cases of a reversion *354 arising out of the original estate, and one limited

by the grant of a third person. Reversion, in the general sense, as being a return of the estate to the original owner, after the limited estate carved out of it had determined, must be familiar to the laws of all nations who have admitted of private property in land. The practice of hiring land for a limited time, and paying rent to the owner of the soil, (and which is one of the usual incidents to a reversion,) was not only known to the Roman law, but it was regulated in the code of the ancient Hindoos."

The reversion arises by operation of law and not by deed or will; and it is a vested interest or estate, inasmuch as the person entitled to it has a fixed right of future enjoyment. It is an incorporeal hereditament, and may be conveyed either in whole or in part, by grant, without livery of seisin. A grant of the reversion of an estate, absolutely or by way of mortgage, passes the rights to rents that subsequently become due as incident to the reversion, but not the rents then in arrear." Reversions expectant on the determination of estates for years, are immediate assets in the hands of the heir d but the reversion expectant on the determination of an estate for life, is not immediate assets during the continuance of the life estate, and the creditor takes judg

Gentoo Code, by Halhead, 153.

Litt. sec. 567, 568. Co. Litt. ibid. Co. Litt. 49, a. Doe v. Cole, 7 Barnw. Cress. 243. Mr. Preston says, it is more usual to pass a reversion by lease and release, or bargain and sale. Preston on Abstracts, vol. ii. 85.

• Cruise's Dig. tit. 28, c. 1, sec. 65. Birch v. Wright, 1 Term Rep. 378. Burden v. Thayer, 3 Metcalf Rep. 76.

Smith v. Angell, 1 Salk. Rep. 354. Villers v. Handley, 2 Wils. Rep. 49.

с

ment for assets in futuro. If the reversion be expectant on an estate tail, it is not assets during the continuance of the estate tail; and the reason assigned is, that the reversion is of little or no value, since it is in the power of the tenant in tail to destroy it when he pleases. But in Kinarton v. Clarke, Lord Hardwicke considered it inaccurate to say that such *a reversion was *355 not assets; for there was a possibility of its becoming an estate in possession, and the creditor might take judgment against the heir, on that possibility, for assets, quando acciderint, and which would operate whenever the heir obtained seisin of the reversion. In the mean time, as it was admitted, the reversion could not be sold, nor the heir compelled to sell it; and when it comes to the possession of the heir, he takes it cum onere, subject to all leases and covenants made by the tenant in tail where he had the estate.d

The reversioner, having a vested interest in the reversion, is entitled to his action of case for an injury done to the inheritance. He is entitled to an action on the case, in the nature of waste against a stranger, while the estate is in the possession of the tenant.

The

⚫ Holt, Ch. J., in Kellow v. Rowden, Carth. Rep. 129. Rook v. Clealand,

1 Ld. Raym. 53.

1 Rol. Abr. 269, A. pl. 2. Kellow v. Rowden, Carth. Rep. 126. Mod. Rep. 253, S. C.

2 Atk. Rep. 204. Forrest, MS. cited in Cruise's Dig. tit. Reversion, sec. 26.

P

Symonds v. Cudmore, 4 Mod. Rep. 1. Shelburne v. Biddulph, 4 Bro. P. C. 594.

• Jesser v. Gifford, 4 Burr. Rep. 2141. Vide supra, lec. 55, and NewYork Revised Statutes, vol. i. 750, sec. 8. A person seised of an estate in reversion or remainder, may have an action of waste or trespass for any injury done to the inheritance, notwithstanding any intervening estate for life or years. A reversioner or remainder-man may also be admitted to defend as a party to suits against the tenant of the particular estate. New-York Revised Statutes, vol. ii. 339, sec. 1, 2. No recovery or judgment unduly had against the tenant of a particular estate, bars the right of the reversioner or remainder-man to restitution. Ibid. vol. ii. 340, sec. 6, 7.

injury must be of such a permanent nature as to affect the reversionary right. The usual incidents to the reversion, under the English law, are fealty and rent. The former, in the feudal sense, does not exist any

longer in this country; but the latter which is a *356 very *important incident, passes with a grant or assignment of the reversion. It is not inseparable, and may be severed from the reversion, and excepted out of the grant, by special words.b

* Jackson v. Pesked, 1 Maule & Selw. 234. Randall v. Cleveland, 6 Conn. Rep. 328. A stranger doing an injury to the premises may be prosecuted, either by the tenant or reversioner. 1 Saund. Rep. 312, note 5. An action on the case for an injury to the land may be brought by the tenant in respect of his possession, and by the reversioner in respect of his inheritance. Jesser v. Gifford, 4 Burr. 2141. Ripka v. Serjeant, 7 Watts & Sergeant, 1. But if the person who does the injury acts under the authority of the tenant, the reversioner cannot sustain an action of trespass. Livingston v. Mott, 2 Wendell's Rep. 605.

Co. Litt. 143, a. 151, a, b.