§ 92. Vested and Contingent Ownership.
Ownership is either vested or contingent. It is vested when the owner’s title is already perfect; it is contingent when his title is as yet imperfect, but is capable of becoming perfect on the fulfilment of some condition. In the former case he owns the right absolutely; in the latter he owns it merely conditionally. In the former case the investitive fact from which he derives the right is complete in all its parts; in the latter it is incomplete, by reason of the absence of some necessary element, which is nevertheless capable of being supplied in the future. In the meantime, therefore, his ownership is contingent, and it will not become vested until the necessary condition is fulfilled. A testator, for example, may leave property to his wife for her life, and on her death to A., if he is then alive, but if A. is then dead, to B. A. and B. are both owners of the property in question, but their ownership is merely contingent. That of A. is conditional on his surviving the testator’s widow; while that of B. is conditional on the death of A. in the widow’s lifetime.
The contingent ownership of a right does not necessarily involve its contingent existence. It need not be a contingent right, because it is contingently owned. Shares and other choses in action may have an absolute existence, though the ownership of them may be contingently and alternately in A. and B. Money in a bank may be certainly owing to some one, though it may depend on a condition, whether it is owing to C. or D. On the other hand, it may be that the right is contingent in respect of its existence, no less than in respect of its ownership. This is so whenever there is no alternative owner, and when, therefore, the right will belong to no one unless it becomes vested in the contingent owner by the fulfilment of the condition.
It is to be noticed that the contingent ownership of a right is something more than a simple chance or possibility of becoming the owner of it. It is more than a mere spes acquisitionis. I have no contingent ownership of a piece of land merely because I may buy it, if I so wish; or because peradventure its owner may leave it to me by his will. Contingent ownership is based not upon the mere possibility of future acquisition, but upon the present existence of an inchoate or incomplete title.
The conditions on which contingent ownership depends are termed conditions precedent to distinguish them from another kind known as conditions subsequent. A condition precedent is one by the fulfilment of which an inchoate title is completed; a condition subsequent is one on the fulfilment of which a title already completed is extinguished. In the former case I acquire absolutely what I have already acquired conditionally. In the latter case I lose absolutely what I have already lost conditionally. A condition precedent involves an inchoate or incomplete investitive fact; a condition subsequent involves an incomplete or inchoate divestitive fact.[[213]] He who owns property subject to a power of sale or power of appointment vested in some one else, owns it subject to a condition subsequent. His title is complete, but there is already in existence an incomplete divestitive fact, which may one day complete itself and cut short his ownership.
It is to be noticed that ownership subject to a condition subsequent is not contingent but vested. The condition is attached not to the commencement of vested ownership, but to the continuance of it. Contingent ownership is that which is not yet vested, but may become so in the future; while ownership subject to a condition subsequent is already vested, but may be divested and destroyed in the future. In other words ownership subject to a condition subsequent is not contingent but determinable. It is ownership already vested, but liable to premature determination by the completion of a divestitive fact which is already present in part.
It is clear that two persons may be contingent owners of the same right at the same time. The ownership of each is alternative to that of the other. The ownership of one is destined to become vested, while that of the other is appointed to destruction. Similarly the vested ownership of one man may coexist with the contingent ownership of another. For the event which in the future will vest the right in the one, will at the same time divest it from the other. Thus a testator may leave property to his wife, with a provision that if she marries again, she shall forfeit it in favour of his children. His widow will have the vested ownership of the property, and his children the contingent ownership at the same time. Her marriage is a condition subsequent in respect of her own vested ownership, and a condition precedent in respect of the contingent ownership of the children.[[214]]
SUMMARY.
| Ownership—the relation between a person and a right vested in him. | |
| Ownership | The three beneficial relations between persons and rights. |
| Possession | |
| Encumbrance | |
The kinds of Ownership.