119 S.E. 741 | N.C. | 1923
Upon the facts found, it appears that, prior to 31 July, 1889, the citizens of Wilmington, being desirous to obtain the location of a permanent encampment for the white troops of the North Carolina State Guard, appointed a committee to solicit funds from the citizens of Wilmington to purchase such site, and raised $2,500 for that purpose. The site selected was a part of an 800-acre tract of land owned by Bowden, Larkins and Alderman, from whom the committee purchased the 103 acres in controversy and caused a deed for the same to be made to the Governor of North Carolina and his successors in office. The $2,500, the purchase price of the land so raised by the citizens of Wilmington, was paid to the said grantors, as recited in the deed.
It is recited in the deed that the parties of the first part, for and in consideration of the premises, and the further sum of $2,500 to them in hand paid by the citizens of the city of Wilmington, have bargained and sold to the Governor of the State of North Carolina and to his successors in office the land described in said deed; and after describing the tract of land, the deed recited that the land is to belong to the Governor and his successors in office so long as the above-described tract or parcel of land shall be used as a permanent encampment ground for the white troops or soldiers of the State Guard of North Carolina; but if the State encampment should ever be removed therefrom, or the said premises should cease to be used for the purposes of a permanent encampment for the white troops or soldiers of the State of North Carolina, then and in that event the title hereby conveyed, or intended to be conveyed, to the Governor of said State and to his successors in office shall immediately become divested and revert to and vest in the Board of Aldermen of the City of Wilmington for the purpose of a public park for the citizens' use and pleasure, in feesimple.
This was clearly a deed of bargain and sale, and, following its execution and delivery, the encampment was established upon said land, and it was used for the specified purpose of an encampment for two or three years, when its use as an encampment ground by the State was abandoned. It is further found as a fact that on 6 December, 1892, the sheriff of New Hanover sold the interest of Bowden and Larkins in the 800-acre tract under execution to the plaintiff, Blue.
From 1892 to 1908 nothing was attempted to be done with the property by the city of Wilmington, until the Legislature passed chapter 13, Private Laws, Extra Session of 1908, which authorized the city to lease the property in controversy, and on 1 April, 1908, a lease of the property was executed to Pembroke Jones for the term of ten years for the sum of $150 per year. Jones took possession thereof and excluded the public therefrom by enclosing the same in a fence, and used it as part of his private lodge grounds. *323
Some time after Blue got his deed from the sheriff, partition was made, by order of court, of the 800-acre tract of land, except the 103 acres in controversy. In that action Blue contended for the partition of the 103 acres also, which was denied, since which date he had had possession only of the land allotted to him in said division, which included no part of the 103 acres, though there was a very small part of the 103 acres unoccupied left outside of the Pembroke Jones fence.
About 1914, W. H. Alderman instituted suit against the city for the recovery of the 103 acres in controversy, alleging practically the same facts set out in the complaint in this action. The city filed a demurrer, upon the ground that upon the plaintiff's own showing he was not entitled to recover. The demurrer was sustained and the action dismissed. On 4 August, 1919, pursuant to resolution of the city council, made on 18 April, 1919, the city exposed the 103 acres for sale at public auction, when T. C. Daniels became the last and highest bidder thereof. The city refused to confirm the sale, and a resale was ordered by the council, but no sale seems to have been made.
On 19 August, 1919, Blue obtained a deed from W. H. Alderman for all his interest in the 103 acres in controversy. In 1921, chapter 87, Private Laws, amended the aforesaid chapter 13, Private Laws, Extra Session 1908, and authorized the city to sell the 103 acres of land in controversy in this action.
Upon the foregoing facts, the plaintiff Blue is entitled to no part of the land in controversy. By the terms of the deed, and upon the findings of fact, the land was occupied and used as a permanent encampment ground from 1889 up to and including 1892. The plaintiff does not contend that the land reverted until 1919, when the city undertook to sell the land, but he contends that at the expiration of the year 1892, when the land was abandoned by the State as an encampment, under the terms of the deed the legal title vested in the city of Wilmington and remained in it until August, 1919, when (after a lapse of twenty-seven years) it was attempted to repudiate what the plaintiff calls "the trust" by the offer to make the sale, and the plaintiff contends that the lease executed by the city to Jones was not inconsistent with the trust, and hence there was no reverter until the attempt to sell the property even though the sale was not made.
Upon the foregoing facts, the plaintiff Blue did not, by the sheriff's deed in 1892, acquire the interest of Bowden and Larkins in the 103 acres, for at the time the deed was made they had no interest therein, and, at most, could have had only the possibility of a reverter, which is not transferable by deed if it had been made under the execution.
The deed from Alderman to Blue in 1919 did not convey to him Alderman's interest, if any, in this 103 acres, for Alderman could make no *324
valid conveyance until he had actually entered therein, and by such entry only could a forfeiture become complete; hence such entry was necessary and essential and a condition precedent to Alderman being vested with any assignable interest or right in the property. No one but the grantor or his heirs can reenter and thereby revest the estate. Church v. Young,
The Court will not lend its aid to divest the estate for a breach of condition, and the estate continues until the grantor or his heirs take proper steps by reentry to consummate the forfeiture. Helms v. Helms,
The first assignment of error is to the ruling of the court that, as a matter of law, the possession of Pembroke Jones under the lease from the city was not adverse and inconsistent with the trust which the plaintiff contends was declared under the deed from Blue and others to the Governor and the city of Wilmington. If the attempt by the city to sell the property, which sale was not consummated, was inconsistent with the alleged trust in the deed of 1889, then the leasing of the property to Jones, which expressly allowed him to exclude the citizens from using the ground as a public park, was as much a breach of the condition subsequent (if any), and as effectual, as the attempt of the city to sell to Daniels, for the lease of ten years excluded the use by the citizens as a public park as effectually as a deed would have done.
The second assignment of error is to the holding by the court that the judgment in 1908, sustaining the demurrer in the action by Alderman against the city in 1908, was not res judicata. Even if there had been a possibility of reverter, such possibility was not assignable and could not be conveyed until after reentry made by the grantors or their heirs and the reverting estate had become vested by completed forfeiture. Hollowell v.Manly,
The reverter, if it ever occurred, vested title in Alderman in 1908, and the fact that he brought suit against the city, claiming this land, and the demurrer to Alderman's complaint, which was sustained by the court upon the ground that he had no title, estops the plaintiff to the same extent and with like effect as though Alderman had brought this suit instead of his assignee.
In Bank v. Dew,
The third assignment of error is to the ruling of the court in holding as a matter of law that the act of the city in attempting to sell the property amounted to a renunciation of the terms of the trust under the deed to the Governor and city of 31 July, 1889, and that because of such act a reverter occurred to the grantors or their heirs.
We have discussed these matters because they have been raised and argued by counsel; but in fact we think that there is but one real question at issue, and that is whether the deed of 1889 was in any sense a trust in favor of the grantors. As we understand the deed, it was a grant in fee simple to the Governor for the consideration of $2,500 raised and paid for by the citizens of Wilmington, and in consideration thereof there was an absolute grant in fee simple of said 103 acres marked off, allotted and described by the deed, to be held for the use of an encampment for the white troops of North Carolina, and there is no evidence of an oral trust in favor of the grantors under which they are entitled to claim any reservation of a trust or other interest in their behalf. They parted absolutely with the 103 acres for the purposes therein stated, and recited that it was in fee simple. It was provided only that if the property should cease to be used for the original purpose of an encampment for State troops, it should revert, not to the grantors, but "shall immediately become divested and revert to and vest in the Board of Aldermen of the City of Wilmington for the purpose of a public park for the citizens' use and pleasure, in fee simple." To give to the word "revert" the technical meaning of a reversion to the grantors contradicts this expressed purpose of the conveyance.
This was a condition subsequent, dependent upon the abandonment of the property for the beneficial use of the State, and then that it should revert, i. e., that it should change its beneficent use and should become the property of the city, not only to be used for a particular purpose, but that the city should own it in fee simple.
The fact that such intention was so clearly and unmistakably expressed that, upon the contingency that if the State should abandon it, the property should belong to the city, is conclusive that there was no possibility of a reverter from the city, for it is declared emphatically that the city in such contingency should take title in fee simple. R. R. v.Carpenter,
The contention of the plaintiff rests upon the misconception that the use of the word "reverter" is in its technical sense, but this loses sight of the fact that the context is explicit that in the event the land should *326 cease to be used as an encampment by the State, "then and in that event the title shall be divested and revert and vest in the Board of Aldermen of the City of Wilmington for the purpose of a public park for the citizens' use and pleasure in fee simple." This shows no intent that there should be a reverter in any event to the grantors, but directs where the title shall go in the event the State should cease to use the property. There is no express trust and no evidence of an oral trust beyond the shadowy suggestion that the grantors might have asked a higher price if it had been sold for any other purpose. Besides, if there had been evidence or an oral trust in favor of the grantors, it would have been void, because in contradiction of the express terms of the conveyance in fee simple, and there is no allegation of a mutual mistake in drafting the paper.
In Gaylord v. Gaylord, our leading case on this subject (
This case is supported not only by the precedents quoted therein, but has been often quoted, and is the settled law since. Jones v. Jones,
Gaylord v. Gaylord has also been cited and approved by Allen, J., inWalters v. Walters,
As to the language of a deed, it has been held that a provision in a deed of land to a county that it is to be used "as and for county highschool grounds and premises, does not create a condition subsequent which will entitle the grantor to reenter if the county attempts to sell the property." Fitzgerald v. Murdoc County,
In School Committee v. Kesler,
To repeat, the language of the deed is that, in the event of the land ceasing to be used as a permanent encampment for the white troops of the State, "then and in that event the title shall be divested and revert to and vest in the Board of Aldermen of the City of Wilmington, for the purpose of a public park for the citizens' use and pleasure, in fee simple." Manifestly, the words there used not only negative a reverter to the grantors or their heirs, but convey the clearly intended idea that in such contingency the city was to take an unconditional, absolute estate in fee, free from all contingencies and possibilities, in full recognition of the words, "in fee simple." Church v. Bragaw,
The court below erred in its conclusion of law that the plaintiff was entitled to ownership or any interest whatever in the land sued for.
The words in the deed, that on the happening of the condition subsequent of the abandonment of the property by the State as an encampment ground, the property "shall immediately become divested and revert to and vest in the Board of Aldermen of the City of Wilmington, for the purpose of a public park for the citizens' use and pleasure, in fee simple," was not a trust imposed on the city for that purpose, but an absolute conveyance in fee simple, as if the city had bought it direct from the grantors for that purpose, and, therefore, the act of the Legislature was amply sufficient to authorize the city to sell and convey the property, free of any limitations or trust. "The legislative power, unless restricted by the Constitution, is absolute as to control over the property of municipal corporations held by them for a public use." Potter v. Collis,
"It has been held that, although title to the land within a city forming a public park is vested in a city, the control of the public park belongs primarily to the State. Such parks are held, not for the sole use of the people of a particular city, but for the use of the general public, which the Legislature represents. By virtue of its control over the public parks, the Legislature possesses the power to authorize the city to devote it to a use which is inconsistent with park purposes, so long as such inconsistent use is some other and higher public purpose which will render its enjoyment by the public more extended and general." (In that case the Legislature, in authorizing the sale of the property, specified how the proceeds should be applied.) 1 Dillon Municipal Corporations, 5th Ed., sec. 117; 19 R. C. L., 763. *329
Upon these facts, certainly, it is immaterial whether or not the grantors, moved by a patriotic purpose, sold the 103 acres to a committee of their fellow-citizens at a price less, or more, than what could have been obtained from others. The purchase was made at a stipulated price, duly acknowledged as paid in full for the property expected to be used by the State, and if it should cease to be so used, then for a reverter, not to the grantors, but for the use of the city, and a subsequent act of the Legislature has authorized the city to make sale of the same and apply the proceeds to other uses.
There was no trust imposed upon the conveyance in favor of the grantors, nor was there any condition subsequent in their favor.
The inevitable conclusion is that, under the terms of the deed of 1889, the original grantors were divested of all title or interest, and that the defendant, the city of Wilmington, under the facts found by the referee, as modified by the judge, holds an estate in fee simple, subject only to the power of the Legislature to authorize the sale, or other disposition of the property, in the event that the city still continues to hold the property, subject to the use mentioned in the deed of 1889.
Reversed.