This is аn action in equity brought to determine the title to real estate, for an adjudication for damages for waste committed thereon by defendant below, appellee herein, while in the possession thereof, and asking judgment for the reasonable rental value of the real estate since the time defendant’s title ceased, for interest, costs and attorney’s fees. The court below found for the defendant.
The amended petition of plaintiffs below, appellants herein, alleges the necessary subject-matter in a case of this nature for the construction of a deed and forfeiture
The defendant in answer thereto denies every allegation of said petition not expressly admitted; admits that Martha Brooks, one of the plaintiffs, was the legal guardian of plaintiff Frank D. Masner (L. R. Eastman was later substituted as guardian of said minor on July 26, 1933) ; that she brings this action as such guardian on behalf of herself and her ward; that Kimball county is a county established under the laws of Nebraska, a body corporate and politic, capable of suing and being sued; that on June 20, 1892, and prior thereto, one William Yannayon was the owner in fee simple title absolute and in possession of block 5, Yannayon’s addition to the town of Kimball, in Kimball county; admits that William Yannayon diеd testate in 1899, without issue, leaving Sarah Yannayon, his widow, as his sole and only legatee and devisee; that Sarah Yannayon died in 1923, testate, without issue, leaving Martha L. Masner, her grandniece, and a grandnephew as her sole and only legatees and devisees; that Martha L. Masner is one and the same person as the plaintiff, Martha Brooks; that the defendant entered into possession of said block 5, Yannayon’s addition, on or about the 20th day of June, 1892.
For the purpose of this opinion the affirmative defense, as stated in the answer of defendant to the amended petition of plaintiffs, need not be set out.
The evidence discloses that Kimball county became a separately organized county November 1, 1888, and in 1892 William Yannayon, a resident of the county at that time, deeded to the county the premises above described; that subsequent to the receipt of the deеd the county proceeded to build a courthouse on the real estate described. For the purpose of this opinion it is necessary to set out the warranty deed showing the conveyance to the county by William Yannayon of the real estate in question, to wit:
“Warranty Deed
“Know all men by these presents:
*647 “That William Yannayon and Sarah Yannayon of Kimball county, and state of Nebraska, in consideration of the sum of one & no/100 dollars, in hand paid by the county of Kimball of Kimball county, and state of Nebraska, do hereby sell and convey unto the said the county of Kimball and state of Nebraska, to wit: All of block five, Yannayon’s addition to Kimball, Nebraska. The conditions of this deed is that the county commissioners of said Kimball county shall erect and maintain a county courthouse on said block. Together with all the tenements, hereditaments, and appurtenances to the same belonging, and all the estate, right, title, interest, claim or demand whatsoever of the said William Yannayon and Sarah Yannayon of, in, or to the same, or any part thereof.
“To have and to hold the above described premises, with the appurtenances, unto the said the county of Kimball.
“And we hereby covenant with the said the county of Kimball, that we hold said premises by good and perfect title; that we have good right and lawful 'authority to sell and convey the same, that they are free and clear of all liens and incumbrances whatsoever. And we covenant to warrant and defend the said premises against the lawful claims of all persons whomsoever.
“And the said Sarah Yannayon hereby relinquishes her right of dower in and to the above described premises.
“Signed this 20th day of June A. D., 1892.
“William Yannayon
“Sarah Yannayon
“In Presence of S. Wooldridge.
“The state of Nebraska
“Kimball county
] JSS
“On this 20th day of June A. D. 1892, before me duly elected a clerk of the district court, Kimball Co. Nebr., and qualified for and residing in said county, personally came William Yannayon and Sarah Yannаyon to me known to be the identical persons described in and who executed the foregoing conveyance as grantors and*648 acknowledged the said instrument to be their voluntary act and deed.
“Witness my hand and seal the day and year last above written.
“S. Wooldridge,
(Seal) Clerk of District Court.”
Said instrument was entered on numerical index and filed for record in the clerk’s office of said county on the 20th day of June, 1892, at 2 o’clock p. m., and recorded in book D of deeds on page 242.
There appears in the record a stipulation that any demand made by the plaintiffs against defendant for title to and possession of the premises involved in this action and for damages for the removal of the buildings and improvements therefrom'would have been refused by defendant herein, if made.
Plaintiffs introduced in evidence ali the records from the county court of Kimball county necessary to show that Sarah Yannayon was the sоle and only heir and devisee of William Yannayon, who died testate, a resident of Missouri, on January 19, 1899; alsó all the records from said county court necessary to show the probate of the will of Sarah Yannayon, the petition for probate of her will setting forth that the devisees under her will were the parties who are the plaintiffs in this action, and that the said Sarah Yannayon departed this life on the 18th day of September, 1923.
The record further sets forth the deposition of C. F. Robertson, a lawyer and banker, 70 years of age, residing in Forreston, Illinois, formerly a resident of Kimball county from 1884 to 1893, and who held, the office of county commissioner of said county in 1892 and 1893. He testified that the county commissioners were looking for a site upon which to build a courthouse for the reason that the county had inadequate quarters for the transaction of its business, and William Yannayon offered to deed the rеal estate in question in this case to the county, provided the commissioners would build and maintain a
Martha Brooks, one of the plaintiffs, testified that she was raised on a farm nine miles southwest of Kimball in the home of Sarah Yannayon, her greataunt; that she was a sister of Frank D. Masner; that Sarah Yannayon had no children of her own; that she had overheard her aunt tell witness’ mother several times that whenever Kimball county did not maintain the land for a courthouse it was to come back to her aunt, and that she had several conversations with her aunt to the same effect. These conversations occurred about 16 years ago.
There is considerable testimony offered by plaintiffs in an effort to prove the allegations of their amended petition regarding the value of the premises in question and damages for the destruction аnd removal of the buildings therefrom, but which is not necessary to be set out for the purposes of this opinion.
The defendant placed in evidence a petition to submit to the electors of the county the question of the construction of a courthouse, a petition by certain persons, to' accept a courthouse site, and articles of agreement between Kimball county and one John Biggs with reference to the acceptance of the completed structure.
Clara Masner was called ás a witness for defendant. She was a niece of Sarah Yannayon and the mother of Martha Brooks and Frank D. Masner, plaintiffs. She testified that she lived with her aunt two years prior to her aunt’s death and that she never heard any statement made to her by her aunt, in the presence of her daughter, wherein her aunt stated that whenever the county ceased to usе the
Exhibit E, offered by defendant and received in evidence, is a communication, dated May 31, 1892, from William Yannayon, contractor and builder, addressed to the board of county commissioners of Kimball county, agrеeing to donate to said county lots 1, 2, 3, 4, 5, 6, 7 and 8, block 1, Yannayon’s addition to the town of Kimball, if the said board will locate and cause to be erected thereon the county courthouse.
Exhibit F, offered by defendant and received in evidence, is a similar offer from William Yannayon to the board, offering block 5, Yannayon’s addition to Kimball, for the same purpose, and was filed March 28, 1892, by S. Wooldridge, county clerk.
John Pantenburg, called as a witness fоr plaintiffs in rebuttal, testified that he heard a conversation between Mr. G. P. Kratz, attorney for plaintiffs, and Mr. J. T. Jefferson to the effect that the piece of ground was to go back to the people who gave it to them, if they never used it for a courthouse or were done with it, Mr. Jefferson having previously testified that he was commissioner and assessor in 1891 and 1892 and that he did not remember if anything was said with reference to what would be done if the cоunty would cease to use the block for a courthouse site.
This is the substance of the evidence material to a decision of this case.
The defendant county erected a new courthouse on a different site and the county officers moved into it in December, 1928. The old courthouse building was sold to one Guy Flemming, a wrecker, in January, 1929.
It is conceded by all the parties to this litigation that section 76-109, Comp. St. 1929, governs the construction of instrumеnts in relation to real estate and the duty of the courts in respect thereto, which is as follows: “In the
This court has passed on this section a great many times. In the case of Eiseley v. Spooner,
In the case of McCulloch v. Valentine,
This court held in St. James Orphan Asylum v. Shelby,
This court held in Arthur v. Arthur,
Plaintiffs contend- that the fee, if any, granted to the defendant county is a base fee, that is, a fee which has a qualification annexed to it and which must be determined whenever the annexed qualification requires. The proprietor of such a fee has the right of an owner in fee simple until his estate is determined, or that it is a qualified fee, one which has a qualification subjoined to it, and which must be determined whenever the qualification annexed to it is at an end, and that there is a possibility of a reverter in the instrument; that when the property was abandoned by Kimball county for the purpose of erecting and maintaining thereon a courthouse a possibility of reverter existed.
' In analyzing the instrument itself, one will note that it lacks an express right of reverter, that there is no indication of any kind or nature, in so far as the meaning of the words in the deed from William Yannayon to Kimball county is concerned, that would indicate that under any circumstances he desired to regain title to the premises ■either for his оwn use or for the use' of his heirs or assigns. All the circumstances at the time of giving the instrument indicated that he proposed to give to the county a site upon which to erect and maintain a courthouse; that he owned some property in the immediate vicinity of the property granted, which would naturally be enhanced in value, and again he might have been inspired with some degree of civic pride. The documentary exhibits such as the offers of different sites would indicate that Mr. Yannayon desired to do something for his county, ■at least that thought could be readily and easily drawn
The English statute, 1 Vict. 1837, created possibilities of reverter and rights of entry for conditions broken and rendered them devisable. 8 and 9 Viet, statutes provided such rights were assignable or alienable. Appellants contend that no decision has held that the English statute of wills is not applicable in Nebraska. While we are convinced that such statutes are unnecessary and inapplicable to our conclusions in this case, yet we quote section 49-101, Comp. St. 1929, as follows: “So much of the common law of England as is applicable and not inconsistent with the Constitution of the United States, with the organic law of this state, or with any law passed or to be passed by the legislature of this state, is adopted and declared to be law within the state of Nebraska.” In Farmers & Merchants Ins. Co. v. Jensen,
We construe this deed to be an outright grant by William Yannayon to Kimball county of the real estate in question, perhaps with a condition attached to it, which is a condition subsequent, thаt would require performance on the part of the county commissioners of that county, and which condition the commissioners did perform in erecting the courthouse on the block in question and maintaining it from about 1892 or 1893 to about December, 1928, which /was a substantial compliance with the condition
In Mead v. Ballard,
In Maddox v. Adair, 66 S. W. (Tеx. Civ. App.) 811, the court held: “(1) Where a grantor conveys realty on condition that, on the grantee’s failure to establish and maintain thereon a seminary of learning, it shall revert, and he does not object to the school established as not being that provided for by the deed, he cannot insist on a forfeiture, after the discontinuance of the school, on the ground that the grantee failed to establish the school required by the condition. (2) Where a grantor conveys
In Hunt v. Beeson,
In Bryan v. Louisville & N. R. Co.,
In Texas & P. R. Co. v. Marshall,
Some mention was made in this case with reference to the receipt by the trial judge of a brief from the clerk of the district court for Kimball county, which brief was prepared for thе use of said clerk and given by him to the trial judge before the trial of this case. Counsel for appellants asked for a copy of the brief from opposing counsel, which request was denied. Counsel for appellants, without reflecting in any way on the court or without seeking to find any particular fault with the court’s action, hints in his brief that the court was guilty of some misconduct. It was quite evident that the court had the brief and probably read it before the trial. It might have been a kindly and courteous act for opposing counsel to furnish appellants’ counsel with a copy of the brief. We do not, however, believe the court was guilty of any misconduct nor appellants’ rights prejudiced in any way by the court’s use of the brief in question, under the circumstances.
We do not analyse other phases of the case called to our attention, for we deem them unnecessary for determination in this opinion.
We believe the court below was right in its findings in favor of defendant below, appellee herein, and for the reasons given by it on the insufficiency of the evidence to establish the claim set forth in plaintiffs’ amended petition; that the construction of the deed in question, based on the sections of the statute quoted above and the decisions in reference thereto, was right, noting the instrument carried no express right of reverter, and that, if
Affirmed.