Facts: Benjamin F. Potter, by his will, devised certain real estate to his wife for and during the term of her natural life and, upon her death, devised ‘all the same over unto my granddaughter,Anna Naomi Coverdale, in fee simple and absolutely forever; but in case the said Anna Naomi Coverdale should die without leaving lawful issue of her body begotten then and in that case I give, devise and bequeath all the same over unto’ the children of William B. Potter in fee simple..
Anna E. Potter, the widow of the testator, is now deceased. Anna Naomi Coverdale, having intermarried with Carmen Caccamo, purported to bar the estate tail devised her by the terms of the will of Benjamin F. Potter, deceased, pursuant to Section 3698, R.C.1935.
Thereafter, on April 29, 1950, Anna Naomi Caccamo sold the lands in question to Delema W. Banning, the defendant for $2,025. The defendant paid $405 and agreed to pay the balance of the purchase price on June 3, 1950 in exchangefor a deed conveying good and sufficient title.
On June 3, 1950, the plaintiff tendered to the defendant a deed purporting to convey a fee simple title to the lands in question to the defendant, who declined to accept the deed and to pay the balance due on the ground that the plaintiff could not convey a good fee simple and marketable title to the lands in question.
Issue: Did the plaintiff have a fee simple estate or an estate tail that was barred by the statute(in which case, judgment shall be entered in favor of the plaintiff for $1,620), or was it a fee tail not barred by the statute, in which case judgment should be entered in favor of the defendant for $405?
Rule: At common law, a gift to A for life and, upon his death, to the heirs of his body or his issue, was a gift of a fee tail. By a number of decisions, this rule has been consistently followed in this State.
However, a fee tail was barred pursuant to statute by conveying away the land by deed purporting to convey a fee simple interest and having the land conveyed back to grantor, whereupon she was seized of a fee simple interest in the land. Rev.Code 1935, § 3698.
Holding: The plaintiff having conveyed away by deed purporting to convey a fee simple interest, the lands in question and having had them conveyed back to her, is now, by reason of Section 3698, R.C. 1935, seized of a fee simple interest in the lands in question, which could have been conveyed by her to the defendant on June 3, 1950.
Decision: Judgment will be entered for the plaintiff and against the defendant for the sum of $1,620 together with costs.
Reasoning: She did get a fee tail from her grandfather’s will, but the statute said that if she conveyed the property to another person with the purpose of conveying a fee simple and then had the lands conveyed back to her, then it was just a fee simple and not a fee tail. Therefore, she had a fee simple, could convey good title, and could collect the rest of the money that the defendant owed her because of their agreement.