                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                  August 6, 2009 Session

              JANE FIELD, ET AL. v. THE LADIES’ HERMITAGE
                ASSOCIATION AND STATE OF TENNESSEE

                Appeal from the Chancery Court for Davidson County
                   No. 07-783-II    Carol L. McCoy, Chancellor


                 No. M2008-02663-COA-R3-CV - Filed March 3, 2010


The heirs of the woman who conveyed Tulip Grove to the Ladies’ Hermitage Association
filed suit claiming, among other things, that due to the Association’s failure to pay the heirs
as required in the deed of conveyance, the property reverted to the heirs. We affirm the trial
court’s grant of partial summary judgment to the Association holding that the Association
did not fail to comply with the obligations relevant to the reversion, so no reversion was
triggered.

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                                      Affirmed

P ATRICIA J. C OTTRELL, P.J., M.S., delivered the opinion of the Court, in which F RANK G.
C LEMENT, J R. and R ICHARD H. D INKINS, JJ., joined.

W. Gary Blackburn, Nashville, Tennessee, for the appellant, Jane Field.

Robb S. Harvey, Heather J. Hubbard, Nashville, Tennessee, for the appellee, The Ladies’
Hermitage Association.

Robert E. Cooper Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General,
Kevin Steiling, Deputy Attorney General, for the Amicus Curiae, State of Tennessee.

                                         OPINION

       This appeal involves whether the historic property known as Tulip Grove should
revert to the heirs of the woman who conveyed the property to the Ladies’ Hermitage
Association (“LHA”). By way of background, LHA is a non-profit organization that has
been responsible for overseeing President Andrew Jackson’s home, The Hermitage, and
surrounding property since 1889. The home known as Tulip Grove was built by Andrew
Jackson Donelson and his wife, Emily. Andrew Jackson Donelson was Rachael Jackson’s
nephew and served with President Jackson in different capacities. Tulip Grove and The
Hermitage are geographically close to one another. Jane Buntin and her husband bought the
Tulip Grove property in 1914.

       It is undisputed that in March of 1964, Jane Buntin, who had been active in LHA,
conveyed to the Ladies’ Hermitage Association the Tulip Grove house and surrounding
property of 26.33 acres. In the warranty deed dated March 11, 1964, LHA made certain
promises in exchange for the property.1 The deed contained the following provision:

        FOR AND IN CONSIDERATION of the sum of Ten Dollars ($10.00) cash in
        hand paid and other good and valuable considerations, hereinafter described,
        paid and to be paid by The Ladies’ Hermitage Association, hereinafter called
        “GRANTEE” to Jane B. Buntin, hereinafter called “GRANTOR”, receipt of
        all of which is hereby acknowledged and in addition, the said Grantee, by the
        acceptance of this Deed, agrees to pay to Grantor, her heirs and assigns, for a
        period of ninety-nine (99) years from and after March 1, 1964 one-third (1/3)
        of all gate receipts received by Grantee from visitors to Tulip Grove House
        located on said land, which payments are to be made on a monthly basis. If for
        any period of six (6) calendar months hereafter beginning July 1 to December
        31, and from January 1 to June 30, and for each succeeding year, Grantee
        should fail to pay to Grantor, her heirs and assigns, from such gate receipts or
        from other funds of Grantee at least $600.00 (except during such time as Tulip
        Grove House is being restored or rebuilt after fire or other casualty), then and
        in that event the title to the property herein conveyed shall revert to Grantor,
        her heirs and assigns, and this deed shall become null and void.

        In April of 2007, Ms. Buntin’s heirs, Jane Field and Carolyn Wilmot Gray (“Heirs”),2
filed suit alleging that LHA had failed to comply with its obligations under the deed. The
Amended Complaint alleged that LHA had failed to make payment to the Heirs as required
in the deed. The Heirs first alleged that the Tulip Grove property should revert to the Heirs


        1
        While not relevant to the issues on appeal, LHA quitclaimed the Tulip Grove property to the State
of Tennessee on December 11, 1990, pursuant to Tenn. Code Ann. § 4-13-101, et seq. The state
acknowledges that the quitclaim deed is junior to the 1964 warranty deed.
        2
          During the course of the litigation the trial court allowed additional heirs to be added, John Everett
Field, Jr., Christopher Everett Field (individually and as next friend of his minor children), and Evangeline
Wilmot Gray. Carolyn Wilmont Gray was allowed a voluntary dismissal without prejudice on September
12, 2008, but by order dated October 1, 2008, rejoined the case as an indispensable party.

                                                      -2-
due to the failure of LHA to comply with the terms of the deed. Consequently, the Heirs
alleged that they “are entitled to immediate possession and recovery of the Tulip Grove
property.” Additionally, in an attempt to recover money allegedly due the Heirs from LHA,
the Heirs sought an accounting and independent audit of all gate receipts attributable to Tulip
Grove and The Hermitage3 between 1963 and 2007.4 LHA filed a counterclaim seeking,
among other things, a declaratory judgment for construction of the reversionary language in
the deed and a finding that LHA has title to Tulip Grove through adverse possession should
the court find a reversion.

       LHA filed two motions for partial summary judgment: one motion was an attempt to
narrow the request for an accounting and the other sought a finding that no reversion had
occurred. The trial court granted portions of LHA’s attempt to limit the accounting claims.
The October 27, 2008 order placed parameters on the accounting and possible monetary
recovery by the Heirs in the event it is determined that LHA violated the terms of the deed.
This motion was unopposed, and it does not appear that the trial court’s findings in the
October 27 order are at issue in this appeal. The trial court’s October 27 order on the
unopposed motion is as follows:

       1. Plaintiffs’ claim for an “accounting” is limited, pursuant to the applicable
       statute of limitations, Tenn. Code Ann. § 28-3-109(a)(3), to the six-year period
       preceding the filing of the Complaint on April 9, 2007.

       2. The Warranty Deed dated as of March 11, 1964, shall be construed as
       follows:

                  a. “gate receipts” is interpreted to mean general admission
                  tickets sold by Ladies’ Hermitage to the public who chose to
                  tour the Tulip Grove House and specifically does not include
                  charges for private special event rentals of the grounds.

                  b. “received by Grantee [Ladies’ Hermitage] from visitors” is
                  interpreted to mean gate receipts actually collected by Ladies’
                  Hermitage from visitors to Tulip Grove House; and

                  c. “to Tulip Grove House on said land” is interpreted to mean


       3
        It is alleged that for a period of years LHA sold a joint ticket that allowed entry both to The
Hermitage and Tulip Grove.
       4
           The Heirs also sought recovery of a historic table and bible not at issue on appeal.

                                                      -3-
               gate receipts received from visitors to Tulip Grove House and
               specifically does not mean receipts received from persons who
               visited the Hermitage or walked or were transported across land
               surrounding The Hermitage, Tulip Grove House, or other
               property held in trust by The Ladies’ Hermitage Association for
               the people of the State of Tennessee.

       This October 27 order was expressly incorporated into the November 12 order that
was appealed. The Heirs filed no opposition to the LHA motion for partial summary
judgment pertaining to the accounting. It would be difficult to challenge the October order
on appeal when no objection was raised to the trial court. In any event, on appeal the Heirs
challenge only the November order finding that there was no reversion. Therefore, we make
no comment and intend no inadvertent construction of the trial court’s interpretation of the
deed in its October 27 order.

        LHA also filed a motion for partial summary judgment seeking a finding that
reversion was not available to the Heirs. The order pertaining to the reversion clause, which
is the subject of this appeal, was entered on November 12, 2008, and provides in pertinent
part:5

       1. The Court finds as a matter of [language whitened out] law that
       Defendant’s Motion for Partial Summary Judgment as to Count I is well taken
       and should be granted. Plaintiffs are not entitled to a reversion of the Tulip
       Grove House and Property which is the subject of the Warranty Deed dated as
       of March 11, 1964. Reversion constitutes a forfeiture, which is disfavored
       under Tennessee law. Even a valid reversion clause must be strictly construed
       against the grantor, and a reversion will not be found unless the evidence
       clearly shows that the unambiguous language triggering reversion has been
       violated. The record reflects that [language whitened out] The Ladies’
       Hermitage Association always complied with the safeguard provision of the
       Warranty Deed by paying Jane Buntin or her heirs at least $600 every six
       months. There are no facts in the record that would support a reversion under
       the Warranty Deed. Accordingly, judgment is entered in favor of Ladies’
       Hermitage and Plaintiffs’ claim for reversion is hereby dismissed with
       prejudice.

       2. The Court hereby incorporates by reference its Order entered October 27,


       5
         Since Carolyn Gray filed no response to the LHA motion on reversion, the trial court entered a
separate order granting partial summary judgment against her on October 27, 2008.

                                                 -4-
       2008, granting Defendant’s Motion for Partial Summary Judgment as to Count
       II.

        The trial court made findings pursuant to Tenn. R. Civ. P. 54.02 making this order
immediately appealable. The case is still pending before the trial court on several issues,
including whether the Heirs are entitled to a monetary recovery from LHA based on its
failure to pay the Heirs 1/3 of the gate receipts and whether the Heirs are entitled to recover
a table and Bible at issue.

       Jane Field appeals the November 12, 2008 order of the trial court finding that the
Heirs are not entitled to a reversion. The sole issue in this appeal is whether Tulip Grove has
reverted to the Heirs. It does not appear that any of the other Heirs joined in the appeal.6

                                               I. A NALYSIS

        We begin our analysis with a point upon which the parties agree: the warranty deed
at issue grants a fee simple determinable with a reversionary interest. The parties disagree,
however, on what triggers the reversion. The Tennessee Supreme Court has recently
described the attributes of a fee simple determinable.

       A fee simple determinable is a fee simple which may endure in the grantee
       forever, but which is subject to a special limitation that may cause the estate
       to revert to the grantor. Yarbrough v. Yarbrough, 151 Tenn. 221, 269 S.W. 36,
       37-38 (1925); 28 Am.Jr.2d Estates § 26 (2004). The future interest retained
       by the grantor of a fee simple determinable is a mere possibility of reverter.
       Mountain City Missionary Baptist Church v. Wagner, 193 Tenn. 625, 249
       S.W.2d 875, 876 (1952).

Griffis v. Davidson County Metropolitan Government, 164 S.W.3d 267, 274 (Tenn. 2005).

       When the special limitation is no longer met, then the fee simple estate terminates
automatically. Griffis, 164 S.W.3d at 274. The holders of the reversion do not have to act,
because the termination of the fee simple estate is automatic. Id. (citing Bailey v. Eagle Mtn.
Tel. Co., 303 S.W.2d 726, 729 (Tenn. 1957); Mountain City Missionary Baptist Church, 249
S.W.2d at 876; 2 T HOMPSON ON R EAL P ROPERTY, § 20.02, at 618 (David A. Thomas ed.
1994)).




       6
           For convenience sake, we will continue to refer to Ms. Field on appeal as “Heirs.”

                                                     -5-
       In order to determine whether LHA has triggered the reversion, we must first construe
the deed in question to determine what acts or failures cause a reversion. Construction of a
deed is a question of law. Griffis, 164 S.W.3d at 274 (citing Rodgers v. Burnett, 65 S.W.
408, 411 (1901); Mitchell v. Chance, 149 S.W.3d 40, 45 (Tenn. Ct. App. 2004)).
Conclusions of law are reviewed de novo with no presumption of correction. Griffis, 164
S.W.3d at 274. Once we have construed the deed, then the issue of whether LHA violated
the deed in such a way as to trigger the reversion is a question of fact. See Griffis, 164 S.W.
3d at 279-80.

        The primary task in construing a deed is “to ascertain the grantor’s intent from the
words of the deed as a whole and from the surrounding circumstances.” Griffis, 164 S.W.3d
at 274 (citing Collins v. Smithson, 585 S.W.2d 598, 603 (Tenn. 1979); Bennett v. Langham,
383 S.W.2d 16, 18 (Tenn. 1964)). With regard to reversions, courts disfavor placing
restrictions on fee interests and are reluctant to “infer the existence of restrictions from
ambiguous language.” Griffis, 164 S.W.3d at 280 (citing Hall v. Hall, 604 S.W.2d 851, 856
(Tenn. 1980)). Such restrictions are, however, valid and will be enforced where legal. Id.
Critical to our analysis of the reversionary language at issue, however, is the rule that since
the reverter of a fee simple determinable is a forfeiture, it must be strictly construed. Griffis,
164 S.W.3d at 280 (citing Wells v. McCanless, 198 S.W.2d 641, 643 (Tenn. 1947)). The
Tennessee Supreme Court has found:

       Like other forfeitures, reverters are not favored and a court of equity will not
       find one unless the evidence clearly shows that the purpose and the spirit of the
       grant have been violated.

McDonald v. Smith County Board of Education, 675 S.W.2d 704, 706 n.2 (Tenn. 1984).

        Consequently, it is clear that under longstanding Tennessee law, a reversion is to be
given effect only to the extent it is clearly required, and the language establishing the trigger
of the reversion, or the breadth of the reversion, is to be strictly construed.

        The deed in question provides that for 99 years LHA is to pay the Heirs “one-third
(1/3) of all gate receipts received by Grantor from visitors to Tulip Grove House.” Whether
LHA has performed this obligation has not yet been decided by the trial court and is not part
of this appeal. Whether the property reverts to the Heirs is the question on appeal. The
language in the deed creating the possibility of a reversion is as follows:

       If for any period of six (6) calendar months hereafter beginning July 1 to
       December 31, and from January 1 to June 30, and for each succeeding year,
       Grantee should fail to pay to Grantor, her heirs and assigns, from such gate

                                               -6-
        receipts or from other funds of Grantee at least $600.00 (except during such
        time as Tulip Grove House is being restored or rebuilt after fire or other
        casualty), then and in that event the title to the property herein conveyed shall
        revert to Grantor, her heirs and assigns, and this deed shall become null and
        void.

        Construing the plain meaning in the deed, the reversion in this provision is triggered
only if LHA fails to pay the Heirs from gate receipts or other funds at least $600 twice a year
for a total of $1200 yearly.

       The Heirs argue that the entire provision must be construed together and that failure
by LHA to comply with the other obligation, i.e. payment to the Heirs of 1/3 of the gate
receipts, triggers the reversion.7 In other words, according to the Heirs, if LHA fails to pay
the Heirs 1/3 of the gate receipts or fails to pay the Heirs yearly at least $1200, then the
property reverts.

       We find this position unpersuasive for two reasons. First, the language in the deed
does not support this position. Under the deed, the Heirs are to receive 1/3 of the gate
receipts, but the deed does not specify a consequence for LHA’s failure to pay the correct
gate percentage amounts. The reversion provision, however, provides that if LHA does not
pay the Heirs at least $1200 yearly, then the property reverts. The deed does not say, as the
Heirs urge us to interpret it, that if LHA fails to make the correct payments under its
obligation to pay the Heirs 1/3 of the gate receipts, then the property reverts. To the contrary,
the reversion language is attached only to the failure to pay $600.00 twice a year.

        Second, as discussed earlier, reversions are enforceable but they are disfavored, and
courts will not infer a reversion. We do not find the language in the deed ambiguous. But
even if it were, the courts will not enforce a reversion that springs from unclear or ambiguous
language.

        Consequently, we find that in order for there to be a reversion under the deed LHA
must have failed to make the minimum $1200 yearly payment. As an issue of fact, the
parties agree and the trial court found that LHA has paid Ms. Buntin and her Heirs at least
$600 every six months. Consequently, applying the clear language of the deed to the
undisputed facts, the trial court did not err in granting LHA partial summary judgment that
a reversion has not occurred under this deed.


        7
          Specifically, the Heirs argue that when LHA closed Tulip Grove and when LHA undercharged
visitors to Tulip Grove the provision requiring LHA to pay the Heirs 1/3 of the gate receipts was violated.


                                                   -7-
       The trial court is affirmed. Costs are taxed to the appellant, Jane Field, for which
execution may issue if necessary.




                                                  ____________________________________
                                                  PATRICIA J. COTTRELL, P.J., M.S.




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