On motion and cross-motion for summary judgment the issue is whether a deed in 1925 from plaintiff's parents to defendant board of education created a fee simple determinable or a fee simple subject to a condition subsequent. The plaintiff is his parents' sole heir.
The deed contains this language:
It is the understanding of the parties to this conveyance that the hereinbefore described land is conveyed solely for the purpose of being used for the erection and maintenance of a public school or schools and that the Board of Education of Woodbridge Township, N.J. will erect a school thereon on or before the school year of 1926 and use such building for school purposes.
The granting and habendum clauses lack any words of limitation or condition. Nowhere in the deed is a possibility of reverter or a right of reentry expressed.
The following facts are undisputed. A school known as Hagaman Heights School was built and maintained on the premises from 1926 to 1968. The premises are 200 feet square. In 1968 the school building was boarded up but it has not been razed. The premises are in use as a public playground, with swings, a sliding board, monkey bars and basketball courts. A full-time playground supervisor organizes and supervises activities during the summer vacation period.
According to the affidavit of Vincent McDonnell, Supervisor of buildings and grounds for the defendant board of education, the school building was obsolete in 1968. Both his affidavit and that of T. C. Cadwalader, defendant's secretary, deny any present plan to sell the premises.
Language in an instrument which is alleged to create a fee simple determinable or a fee simple subject to a condition subsequent is strictly construed. Words of art are sought out. The law abhors a forfeiture. Lehigh Valley R.R. Co. v. Chapman , 35 N.J. 177, 182, 188 (1961), cert. den. 368 U.S. 928, 82 S. Ct. 364, 7 L. Ed. 26, 192 (1961); Oldfield v. Stoeco Homes, Inc. , 26 N.J. 246, 255 (1958); Eggleston v. Fox , 96 N.J. Super. 142, 146 (App. Div. 1967); Shuster v. Board of Education, Hardwick Tp. , 17 N.J. Super. 357, 359 (App. Div. 1952); Restatement, Property , §§ 44, 45 (1936); 2 Powell, The Law of Real Property , §§ 187, 188 (1966).
A construction that an instrument creates a fee simple determinable hinges upon such words of art fixing a conditional limitation as "so long as," "until," or "during." The possibility of reverter may be expressed but may also be inferred from other language in the instrument evidencing plainly that the estate created was to determine and thus to revert to the grantor or his heirs, upon the abandonment of the use for which it was created or upon some other conditional
limitation. Eggleston v. Fox, supra; Board of Chosen Freeholders of Cumberland County v. Buck , 79 N.J. Eq. 472, 476 (Ch. 1912); Restatement, Property , § 44; 2 Powell, op. cit. § 187.
To establish a fee simple subject to a condition subsequent the courts have required an express provision that upon the occurrence of that condition the grantor or his successors in interest may terminate the estate and reenter. Oldfield v. Stoeco Homes, Inc., supra: Cornelius v. Ivins , 26 N.J.L. 376, ...