Front Page Titles (by Subject) § 134.: Regulation of estates—Vested rights.— - A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2
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§ 134.: Regulation of estates—Vested rights.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2 
A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 2.
Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.
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Regulation of estates—Vested rights.—
If it be true that the absolute property in land is in the State, it must follow as a logical consequence that, in the grant of lands to private individuals, the State may impose whatever conditions and terms, under which the land is to be acquired, that may be deemed wise or necessary. For example, the United States government may institute whatever regulations it pleases for the sale of the public lands of the West. The right to acquire a private property in land is a privilege and not a right. The State may refuse altogether to sell, or exact whatever returns in the way of rents or public duties it pleases. But when the right to the public enjoyment of lands is purchased by the individual, it becomes a vested right, of which he cannot be divested by any arbitrary rule of law. There are several clauses of the constitutions which contain an express or implied prohibition of such interferences with vested rights; but the principal protection to vested rights is that guaranteed by the clause which declares that “no man shall be deprived of his * * * property, except by the judgment of his peers or the law of the land.” It is not necessary in this place to discuss in general what is meant by vested rights, and what are considered to be such.1 It is sufficient for us to be able to say that when one becomes the tenant of the State, or, in common parlance, acquires the absolute title to an estate in the land, whether that estate be in fee, for life, for years, or otherwise, his interest is a vested right, which is protected by the constitutional limitations against any arbitrary changes by legislation. But naturally, until the estate is acquired, the purchaser has no absolute right to purchase any particular estate in the land. It is fully competent for the legislature to determine what estates one may acquire in lands. For example, estates tail have been abolished in most of the American States. That is, the statutes of the different States have declared what shall be the effect of an attempt to create an estate tail. In Alabama, California, Connecticut, Florida, Georgia, Kentucky, Maryland, Michigan, Minnesota, Mississippi, North Carolina, Tennessee, Texas, Wisconsin, Virginia and West Virginia, estates tail are converted into fees simple. In Arkansas, Illinois, Kansas, Missouri, New Jersey and Vermont, the tenant in tail takes a life estate, and the heirs of his body, the remainder in fee per formam doni. In Indiana and New York, the tenant takes a fee simple, if there is no limitation in remainder after the estate tail, and a life estate, where there is such a limitation. In Delaware, Maine, Massachusetts, Pennsylvania, and Rhode Island, estates tail are not expressly abolished, but an easy mode of barring the entail by a conveyance in fee simple is provided by statute.1
Another notorious example, of legislative interference with creation of estates in lands, is furnished by the enactment of Statutes of Uses, which provide for the union in the cestui que use of the legal and equitable estates.2 In the same way are the incidents of estates being materially modified and changed by statute. The law of mortgages is constantly undergoing a change in every State, through the enactment of statutes and by judicial legislation. Joint tenancies have been converted into tenancies in common; estates at will have been changed to tenancies from year to year, and estates for years declared to be estates of inheritance, with all the incidents of freehold estates. There are many other such instances of legislative changes of the character and incidents of estates in lands, which may be ascertained by a reference to any work on Real Property. All such legislation, however radical it may be, will be clearly free from all constitutional objections, as long as it is not made to apply to existing estates. To declare, that hereafter no estate tail or use shall be created, does not infringe any vested right, either of the vendor or vendee, or any third person in privity with either of them. But the effect would be very different if these statutes were made applicable to the existing estates of the prohibited kind. Whether the estate tail was converted into a fee simple or divided into a life estate in the first taker and a contingent remainder in the heirs of his body, or if the tenant in tail has the power given him to convert the estate into a fee simple by a conveyance; in any one of these three cases of legislation, the application of it to existing estates tail would violate the constitutional prohibition of interference with vested rights. Of course the heirs of the body have no vested rights,1 but the reversioner or remainder-man, after the estate tail has.2 Mr. Cooley states that “in this country estates tail have been generally changed into estates in fee simple, by statutes the validity of which is not disputed.”3 If the reversion or remainder after an estate tail be a vested right, and without exception the recognized authorities on the law of real property are agreed that these interests are vested rights, the conclusion is irresistible, that laws, changing estates tail into fees simple, are unconstitutional if applied to estates tail already created, when the laws were passed. Mr. Cooley says: “No other person (than the tenant in tail) in these cases has any vested right, either in possession or expectancy, to be affected by such change; and the expectation of the heir presumptive must be subject to the same control as in other cases.”4 In a note to the above statement5 he says that “the exception to this statement, if any, must be the case of a tenant in tail after possibility of issue extinct; where the estate of the tenant has ceased to be an inheritance, and a reversionary right has become vested.” There cannot be any doubt whatever, that the conversion of an estate tail after possibility of issue extinct into a fee simple, would be in violation of the vested rights of the reversioner or remainder-man. For the estate tail after possibility of issue extinct is but a life estate.1 But, in respect to the matter of being a vested right, there is no difference between the remainder or reversion after an ordinary estate tail, and one after an estate tail after possibility of issue extinct. There is no uncertainty as to the title in either case. The failure of issue in both simply determines when the reversion or remainder shall take effect in possession, and the uncertainty or impossibility of ever enjoying the estate in possession, never makes a remainder contingent.2 It is true that in England the remainder after an estate tail was liable to be defeated by a common recovery, when sufiered or instituted by the tenant in tail for the purpose of cutting off the entail.3 And if common recoveries or some other mode of barring the entail had been previously recognized in this country, the remainder after the estate tail would be properly considered a contingent interest instead of a vested right, and could be further regulated by statute. Thus, for example, in Massachusetts, the tenant in tail can make a conveyance in fee simple, thus barring the contingent interest of the remainder-man or reversioner. Another statute might very well be enacted, making the existing estates tail a fee simple, while they remain in the possession of the tenant in tail. Since the interest of the reversioner or remainder-man was already liable to be defeated by the arbitrary will of the tenant in possession, it was not a vested right, and, therefore, not protected by the constitutional limitations.
For the same reason, the right of survivorship in a joint tenancy cannot be considered a vested right. Apart from the fact, that the title to the interest of the co-tenant under the doctrine of survivorship, could not until his death become vested in the survivor, the co-tenant had the power to defeat the right of survivorship by his own conveyance of his undivided interest. The conveyance of a joint tenant’s share in the joint tenancy converts it into a tenancy in common, as between the assignee and the other joint tenants.1 It is, therefore, not difficult to justify on constitutional grounds the statute of Massachusetts, which converted existing joint tenancy into tenancies in common.2 In the same way the enactment of a statute, converting existing trusts, which could not be executed by the English Statute of Uses, into legal estates, could not be considered unconstitutional, except where the effect would be to materially change the beneficial character of the rights of the cestui que trust. The title of the trustee is not a vested right which would be protected by these constitutional limitations. He holds it in trust for the cestui que trust, and if the latter has not been harmed by the transfer of the land to him, the trustee cannot complain. A law may be passed, abolishing the doctrine of “a use upon a use,” and convert into legal estates all uses that remain unexecuted in consequence of this doctrine. It may possibly be claimed that in active trusts the trustee has a vested right to the compensation which the law allows him for the performance of his duties under the trust. But the claim is manifestly untenable. If the performance of his duties is rendered unnecessary by the transfer of the legal estate to the cestui que trust, he has not earned his compensation. One cannot be said to have a vested right to earn compensation by the performance of duties which have by law become unnecessary.1
Under the English Statute of Uses, which has been adopted without change in most of our States, the separate use to a married woman cannot be executed into a legal estate, because she cannot hold the legal estate free from the control of the husband, as she can the use or equitable estate.2 A statute which converted such an existing estate into a legal estate, without providing for its remaining her separate property, would clearly be unconstitutional, as being in violation of vested rights. On the other hand, if a statute is passed, which declares that married women shall hold their legal estates as well as equitable estates free from the control or attaching rights of the husband, the use to a married woman which remained unexecuted by the statute, only on account of her disability to hold the legal estate independently of her husband, would at once become executed into a legal estate under the old Statute of Uses, without any express legislation to that effect.3
Some additional illustrations of what are vested rights in real estate, which may not be infringed by subsequent legislation, may be added. Where, on the seashore, the bulkhead line for wharfs and piers is once established by law, and wharfs and piers are constructed in accordance with such law; the riparian owners have acquired a vested right in the privilege accorded by the law, which may not be interfered with or restricted by subsequent legislation, except in the exercise of the right of eminent domain, and upon payment of full compensation.1 The same conclusion was reached in a case, where a certificate of purchase of swamp and overflowed lands was assigned to a non-resident purchaser, and a subsequent constitutional provision prohibited the grant of public lands to any but citizens and residents of the State. It was held that the rights, acquired by the assignee of the certificates of purchase, was vested, and could not be impaired by this subsequent constitutional prohibition.2
But inasmuch as the ultimate property in all lands which are held by private owners is in the State, and the private owner holds his estate subject to the superior claim of the State against the land for the payment of taxes which are levied against the land; the lien for taxes on the land takes precedence to the lien of a mortgage or judgment, even though the taxes, for which the lien may be enforced, may have been levied and have become due, after the execution of the mortgage or the filing of the judgment. This principle, in its application to general taxes, is too well settled and unquestioned to require citation of authorities.
But, in a recent case, the applicability of the principle to the lien for special assessments for public improvement has been questioned in Indiana. But the Supreme Court of that State held that a law did not interfere with the vested rights of a mortgagee, which provided that the lien for such a special assessment shall take precedence to the liens of existing mortgages.1
A State has not the power, by subsequent law, to release a grantee and his title from a condition which has been imposed by the grantors. But where the State itself imposes such a condition, it may remove it by subsequent legislation: As, where a corporation is authorized to hold land for a specified purpose only, this restriction may be removed by subsequent legislative enactments.2
A curious question of vested rights has arisen in connection with the effect on real estate values of the presence of certain institutions, public or semi-public, in a town or city. The location in a town of a State penitentiary, hospital, asylum or university, does not give to the property owners of the town any vested right in their continued location in the town, if the original location of the institution was not bartered for with the express agreement that it shall never be removed. In a recent case, the question was raised and answered in the negative, whether the property owners had a vested right in the continued location in their town of the seat of the State government.3 The same answer was given in the case of a sectarian college, where it was understood, but not expressly agreed to by a valid contract, that the first location of the college would be permanent. A law authorizing its removal was held not to be an interference with any vested right of the property owners of the town.4
The same rule as to the power of the government to change remedies, enlarging or restricting them, or providing new remedies, without interfering with vested rights, applies to vested rights in real estate, as what controls the power of the government to regulate the enforcement of contracts in general, and which is fully set forth in a subsequent section.1 As long as the change is made only in the remedy for the enforcement of the right, and a reasonable opportunity is afforded for the subsequent enforcement of the right, the constitutional provision is not infringed. Thus, a recent statute in Illinois changed the requirements of the notice to quit, in order to terminate a tenancy, or to recover possession, cutting down the period of notice in some cases, and requiring a notice in some cases in which theretofore no notice was required at all. It was held that, inasmuch as the statute only effected a reasonable change in the remedies, its enforcement against existing lessors and lessees did not impair any vested right.2 The same conclusion was reached, in regard to laws which made tax deeds conclusive or only prima facie evidence of title. These laws were held to change or affect only the remedy.3 So, also, a law, which requires sixty days’ notice by purchaser of tax-title of the expiration of the period of redemption, affects only the remedy and may apply to sales made prior to its enactment.4
For a masterly exposition of this subject, see Cooley Const. Lim. 430-511.
Tiedeman on Real Prop., § 2, n.; 1 Washb. on Real Prop. 112, note; Williams on Real Prop. 35, Rawle’s note.
Tiedeman on Real Prop., §§ 459-470.
See post, § 135.
Tiedeman on Real Prop., §§ 385, 398, 538; 2 Washb. on Real Prop. 737, 738; 2 Washb. on Real Prop. 546, 690.
Cooley Const. Lim. 441, citing, in support of the proposition, De Mill v. Lockwood, 3 Blatchf. 56.
Cooley Const. Lim. 441, 442, citing, 1 Washb. on Real Prop. 81-84.
Tiedeman on Real Prop., § 51; 1 Washb. on Real Prop, 110, 111; 2 Sharswood Blackstone, 125.
Tiedeman on Real Prop., § 401; Fearne Cont. Rem. 216; 4 Kent Com. 202; 2 Washb. on Real Prop. 547; Croxall v. Shererd, 5 Wall. 288; Pearce v. Savage, 45 Me. 101; Brown v. Lawrence, 3 Cush. 390; Williamson v. Field, 2 Sandf. Ch. 533; Allen v. Mayfield, 20 Ind. 293; Marshall v. King, 24 Miss. 90; Manderson v. Lukens, 23 Pa. St. 31; Maurice v. Maurice, 43 N. Y. 380; Furness v. Fox, 1 Cush. 134; Blanchard v. Blanchard, 1 Allen, 223.
Williams on Real Prop. 253; 1 Spence Eq. Jur. 144; 2 Prest. Est. 460; Page v. Hayward, 2 Salk. 570.
Tiedeman on Real Prop., § 238; 1 Washb. on Real Property, 647, 648; Co. Lit. 273b. And the right of survivorship will pro tanto be defeated by a mortgage of a joint tenant’s interest in a joint tenancy. York v. Stone, 1 Salk. 158; 1 Eq. Cas. Abr. 293; Simpson v. Ammons, 1 Binn. 175.
Holbrook v. Finney, 4 Mass. 565 (3 Am. Dec. 243); Miller v. Miller, 16 Mass. 59; Annable v. Patch, 3 Pick. 360. See Bombaugh v. Bombaugh, 11 Serg. & R. 192.
See Adams v. Adams, 64 N. H. 224; In re Heinze’s Estate, 46 N. Y. S. 247; and contra to the text, Oviatt v. Hopkins, 46 N. Y. S. 959; 20 App. Div. 168.
Tiedeman on Real Prop., § 469.
See Sutton v. Aiken, 62 Ga. 733; Bratton v. Massey, 15 S. C. 277; Bayer v. Cockerill, 2 Kan. 292.
Classen v. Chesapeake Guano Co., 81 Md. 288. See, to the same effect, Roberts v. Brooks, 71 Fed. 914.
McCabe v. Goodwin, 106 Cal. 486.
Murphy v. Beard, 138 Ind. 560.
Gump v. Sibley, 79 Md. 165.
Edwards v. Lesueur, 132 Mo. 410.
Bryan v. Board of Education, 151 U. S. 639.
See post, § 178.
Woods v. Soucy, 166 Ill. 407.
Harris v. Haisch, 29 Oreg. 562 (46 P. 141); In re Douglass, 41 La. Ann. 765; Ensign v. Barse, 107 N. Y. 329.
Coulter v. Stafford, 56 F. 564; 6 C. C. A. 18; Heinrich v. Niesz (Wash.), 47 P. 414.