Thomas Gibbons, Esq. vs. John Gibbons, Esq. Tax Collector, 1 Charlton Rep. 113

From this form of pleading the following points present themselves for investigation : 1. What is the species of tenure created by the titles of the corporation to the grantees of city lots, sold pursuant to i,- ' it „ the ordinance of the 28th September, 1790? \ 2. Do the conditional conveyances of the corporation exempt the grantees from the payment of the state taxes ? The purchaser of city lots has it at his option to obtain an absolute fee simple title by paying down the valuation and increase money, or, to keep the estate in himself, his “heirs and assigns for ever,” by paying 5 per cent, quarterly, upon the valuation. The second

section of the before recited ordinance, also declares, that on the failure of the payment of ground rent, fifteen days after it becomes due, the lots shall revert to the corporation. Thomas Gibbons, a purchaser of city lots, sold pursuant to the directions of this ordinance, alleges, that he is nothing more than a lessee of the corporation, and therefore not subject to the payment of the taxes. We, on the other hand, contend, that convey and assure to Mr. Gibbons, a freehold of inheritance to be defeated upon the nonperformance of a condition subsequent. If Mr.

Gibbons is simply a lessee of the corporation, it must appear so, on the face of his deed. That deed conveys an estate to him, his heirs and assigns for ever, upon the condition of paying a quarterly ground rent. The technical expressions of the deed cannot create a lease. A lease is a conveyance of lands and tenements for life, for years, or at will; but always for a less term than the lessor hath in the premises ; its operative words are demise, grant, and to farm let. Co. Litt. 45. 2 Blk. Com. 317.

The deed from the corporation does not and cannot contain these operative words, nor is a less term conveyed than the lessor had in the premises. It conveys the vahóle interest dependent upon a contingency. The conveyance from the corporation cannot be denominated a lease. The titles from the corporation do not create an estate fop life. Litt. 56. 2 Tuck. Blk. 120. An estate for life is by express or general language ; the first, where a lease is made to a man of lands and tenements for his own life, or the lives of others ; the second, where the deed leaves the nature of the estate indefinite.

The titles of the corporation to the grantees of city lots preclude the idea of this species of estate ; because they neither expressly convey the estate for life, nor are the terms so genéric as to create that estate. The titles of the corporation do not create an estate for years. That estate is created by a contract between the lessor and the lessee for the possession of lands, to expire at a determinate period. Com. Dig. vol. 4. p. 45. 2 Bl. Com. 141. ' The titles of the corporation convey an interest, which may last for ever.

We have thus pursued the idea of a lease- in all those branches which can in any manner apply to the present discussion ; and sufficiently shown that the contracts between the corporation and the purchasers of its lots, cannot create a lease. We will in the next place endeavour to evince, by adopting a similar train of definition, that the estate created by the city titles is a freehold estate of inheritance, which may be defeated upon the nonperformance of a condition subsequent. The highest estate the law recognises is the estate in fee simple.

A tenant in fee simple is he that hath lands, tenements, or hereditaments, to hold to him, and his heirs for ever. 2 Elk. Com. 104. 1 Inst. 1. The word “fee,” is derived from the nature of the feudal system. It imports, that the land is held of some superior, to whom certain services are due, and in whom the ultimate property resides. In Englandj to the present day, there is a system of dependency and vassalage, which preserves the spirit of the feudal law, though the literal inconveniences and oppressive principles of that law are done away with by 12 Car. 2. c. 24.

The tenant in fee simple in England, and his heirs, have the uncontrolled disposal and enjoyment of the use of the land, but that land is still held of some superior. The British subject hath only the usufruct, not the absolute property in the soil. Only one mao in England, and he is the king, hath an absolute allodial property in the soil. Predium domini regís est directum dominium, cujus millus est author nisi deus. Co. Litt. 1. The Revolution hath destroyed the ideas attached by the English law to an estate in fee simple.

We adopt the term fee simple, as induanve of the highest species of tenure which can be created, and in creating that estate, we also adopt the forms, the principles, and technical expressions of the English law. But the term fee, as it imports a subjection to some superior in a feudal acceptation, is unknown to the constitution and laws of the American people. The citizen seized of an estate called a fee simple, holds his lands of no superior.

The connexion between him and the government is a con-nexion founded upon the doctrines of the social compact, the leading principles of which are, mutual protection, and the preservation of certain political rights and.forms of government. The tenure by which estates may be held can neither diminish or enlarge the sphere of that protection, or those civil rights. The government of England has its ba^is on the feudal system, the very genius of which is a chain of dependency from the lowest up to the highest species of estates.

The term fee, that is, an acknowledgment that I hold my estate of some superior, in whom the ultimate property resides ; but the use of this estate is vested in myself, my heirs and assigns for ever, is the English fee simple estate. A man seized of lands and tenements to himself, his heirs and assigns for ever, in the state of Georgia, (and every other state in the union,) is seized thereof absolutely in his own demesne, and the allodial estate or property remains in himself and his descendants.

This is called the allodial tenure in contradistinction to the fee, and this is the estate which we improperly call in this country a fee simple. The word “ heirs,"1 however, in this country, and in England, creates the estate in fee simple. It is a term incompatible with any other kind of estate. The titles of the corporation contain this operative word — they convey to the purchaser, his “ heirs and assigns for ever.” Upon the demise of the ancestor the heirs take possession of the lots, by the legal operation of the deed. Is not this an estate in fee simple ? — is it not a freehold of inheritance ?

But there is a condition in the deed which possesses the magical power of giving the purchaser’s estate the aspect of a freehold of inheritance, when he and his heirs will it so to be ; yet, when the state calls upon him, or his heirs, to pay a small tax towards the support of the government, this freehold of inheritance suddenly changes its front, and presents a leasehold! — a simple chattel interest, which has been exempted from taxation time immemorial! (this immemorial time, however, takes its date from the year 1732.) Is there any thing in the condition of the city conveyance incompatible with an estate of freéhold of inheritance ?

We say, that the condition of the conveyance does not militate against such an estate. A base fee, or qualified fee, that is, an estate having a qualification subjoined thereto, is determined whenever that qualification is at an end. 2 Blk. Com. 108. A fee of this description, however, is a freehold of inheritance. As a grant to a man and his heirs, tenants of the manor of Dale, the estate ceases when the heirs of the grantee are not tenants of the manor of Dale. 2 Blk. Com. 108. This is called a fee, because by possibility the estate may endure for ever!

So the estate created by the corporation titles may endure for ever. It is therefore a fee. So a grant to A. his heirs and assigns for ever, of these city lots, he or they paying a quarterly ground rent of 5 per cent. The estate ceases, when the re-entry is made by the corporation for a non-compliance with the qualification subjoined to the grant. In the mean time A. and his heirs have a freehold estate of inheritance.

So the conditional fee at common law determined when the donee died without heirs, which was the qualification of that kind of estate, or, if the estate did not descend to a particular class of heirs. 2 Blk. Com. 109. The entailed estates created by the statute of Westminster are freeholds of inheritance, the duration of which depend upon a condition. An estate in fee simple or otherwise may be granted upon a condiiion ; and this condition may be precedent or subsequent.

If a man grant an estate in fee simple, reserving to himself and heirs a certain rent, and that if such rent is not paid at the times limited it shall be lawful for himself and heirs to enter and avoid the estate ; in this case the grantee and his heirs have an estate (in fee simple,) which is defeasible if the condition is not strictly performed. 2 Blk. Com. 153. The term “ successors” in a grant to, or from a corporation, is equivalent to the term “ heirs,” to or from individuals. 2 Blk. Com. 108.

The purchasers of city lots possess titles in fee simple, upon the condition of their paying a certain rent, and if not paid at limited times, it is lawful for the corporation to re-enter and avoid the estate. If the high British authority referred to, contains the law of this country, the principle has been established, that the purchasers of city lots, are seized of a freehold of inheritance, which may be defeated upon the non-performance of a condition subsequent. The condition contained in the title of the corporation is a condition subsequent, and it is a condition in deed, because it requires

an act to be done by the corporation before the reversion is consummated. 2 Blk. Com. 154, It is said by the authorities, that so long as the condition remains unbroken, the grantee may have an estate of freehold, if the estate upon which the condition is annexed be of a freehold nature. We have shown that the title of the corporation conveys a freehold, because its technical and operative words are appropriate to a freehold of inheritance. The reservation of a rent is not repugnant to the nature of a freehold ofinheritance.

In the proprietary governments, when these states were colonies, a quitrent was reserved, upon the nonpayment of which by the tenants, the estate was forfeited ; but the tenant during the continuan.ce of his estate, which was a free4 hold, paid his taxes for the support of the then sovereign power. 2. Are the purchasers of city lots subject to the payment of the state taxes ? The solution of this question will depend upon the admission of the nature of the estate we have supposed the city grantees to be in possession of.

The plaintiff below does not attempt to deny, that if he is not a lessee, the estate he derives from the corporation is subject to the state taxes. If the estate held by the plaintiff is a simple lease, he is certainly exempted from the state assessment, not by custom immemorial, hut becati.se the state tax laws do uo! impose it. There is no principle of law, common or statutory, which exempts corporate bodies from the public taxation. The silence of the legislature is the only ground of exemption.

But if it still remains equivocal (notwithstanding the principles we have advanced,) whether the estate of the purchaser of city lots is a freehold of inheritance or not, still we must view these lots as lands granted to the plaintiff, and therefore subject to the state taxation. Marb. and Crawf. Dig. 516, and the tax acts passim. These lots are granted to the purchasers and upon a condition which may last for ever; and yet it is said that a , , „ , , ’ , , lease of lands for ever doth not subject the lessee or grantee to the state taxation !

The corporation must be bound by the technical expressions of the grant. If the corporation had wished to exempt their grantees from the state taxation, that might have been effected by a demise of 500 years, the estate to be defeated upon the nonpayment of the 5 per cent, quarterly ground rent, and a fee simple title to be given upon payment of the valuation money. As the title is to be taken, it is a grant which may last in perpetuity, and as a grantee of such conditional perpetuity, he is unquestionably subject to the state taxes. The title of the corporation is therefore not a lease..

Because, it does not convey a less term than the lessor hath in the premises. Because, it is not an estate for life, expressly created, nor is that estate created by the indefinite language of the deed: and, Because, it is not for a determinate period. The title of the corporation conveys a freehold of inheritance. Because, it conveys the lots to the “ heirs ” and “assigns ” of the purchasers, “forever;” and it is a freehold of inheritance upon a condition subsequent.

As a freehold of inheritance the lots are by the admission of the plaintiff below subject to the payment of the tax ; or if that admission is denied, the form of the corporation grant subjects the lots to taxation. Judge Jones having an interest in the question, as a purchaser of city lots, or in some other capacity, Skrine, Judge of the Middle District, was requested to preside on the trial of this particular case. The Judge, in his charge to the special jury repeated th^ law as it had been cited by Mr. Attorney General, and then left it to the jury, according to the judicial system, to determine whether Mr.

Thomas Gibbons was the lessee of the corpe- ■ ration, or whether the deed did not create a freehold estate of inheritance. If the latter estate was created, the lots were certainly subject to the state taxation. Gibbons, for Appellant. Charlton, A. G. for Tax Collector, the Respondent. The Judge then observed, that it was the province of the jury to decide upon facts ad questionem facto respondent ju-ratores.

In this case there was no fact, the question involved only a principle of law, which from the nature of things should receive its exposition from the bench ; but as neither the practice of our courts, nor the judicial system of the state, admitted of any form, by which the case could be referred to the exclusive judgment of the court, he was necessarily compelled to submit the whole of the law to the jury. Verdict for the Tax Collector.