Lead Opinion
This is an action of ejectment, commenced by the city of Portland to recover a tract of land within the corporate limits of said city, containing about five acres, and known
The plaintiff to prove title introduced in evidence a deed dated February 26, 1855, from -Tames Terwilliger and wife, and Fini.ce Carruthers and Elizabeth Thomas, by the terms of which ten acres of land were conveyed to the city of Portland, one half of which was on the claim of the defendant, being the land in controversy, and the other half being a part of the land claim of Elizabeth Thomas. After the granting and descriptive clauses in said deed, it proceeds as follows: “ But upon these further expi’essed terms, conditions, and reservations, to wit, that one-fourth part of said ten acres of land shall be set apart and reserved forever, and used for and as a public burial ground; .that the said tract of land shall be laid off into such lots as the .said city of Portland, by its proper officers, may elect to do, and •shall be sold and disposed of from time to time to purchasers, .and that the proceeds arising from the sale of lots by said city •of Portland shall be applied, in the first place, to the enclosure of said ten acres of land with a good and sufficient fence, and .the remainder to clearing, adorning, and ornamenting said cemetery grounds; and that • as a further condition the said city of Portland shall and will, immediately after the execution in full of these presents, make and deliver, without cost or charge to the grantors of this deed, a deed of conveyance to said James Terwilliger of one family burial lot in said cemetery, and to Finice Carruthers of one family burial lot therein.” And in another part of said deed -it is recited that it is made “for and in consideration of the covenants, promises, and agreements contained in a certain instrument of writing, dated August 24, 1854, made and entered into between the aforenamed parties of the one part, and the city of Portland, a body corporate and politic in fact and in law, on the other part, and in consideration of the same on the part of the city of Portland having been done, per
So much of the operative part of said agreement as is necessary to a proper understanding of the questions presented is as follows: “Now, therefore, the said James Terwilliger and Finiee Carruthers, in consideration of the promises and agreements of the city of Portland hereinafter named, do hereby, for themselves, their heirs, executors, administrators, and assigns, covenant and agree to and with the city of Portland, a corporation, as aforesaid, that they will well and truly make, execute, acknowledge, and deliver, or cause so to be, all and every such deed or deeds, conveyance or conveyances, whatsoever, which shall be needful in conveying' and confirming unto said city of Portland, a corporation as aforesaid, a good,, absolute, and clear estate and title, free of all encumbrances, of, in, and to ten acres of land, to be in square form, for the purpose of a city cemetery, and said land to be situated on a line between the said Terwilliger’s and Carruthers’ land claims, five acres of which shall be taken from the north side and five acres from the south side of said division line, and all to be on the west side of and next to the territorial road from said Portland to Brown’s Ferry, and that said deed or deeds, conveyance or conveyances, shall be by them so made, executed, acknowledged, and delivered, when the said city of Portland shall have expended the sum of four hundred dollars in building a road between said city and said cemetery land, and shall have laid off said land into such lots as they may elect to do; and that until said deed or deeds shall be executed as aforesaid, the said city of Portland shall peaceably and quietly hold, enjoy, and use the said land as a cemetery. And the said city of Portland, a corporation duly established by law as aforesaid, for and in consideration of the premises aforesaid, and of the covenants and agreements of the said James Terwilliger and Finiee Carruthers, as hereinbefore recited, does hereby promise and agree to and with said Terwilliger and Carruthers, that it, the said city, will expend the sum of four hundred dollars in the building of a road from said city to said cemetery, and that one-fourth part of said ten acres of land shall
Upon the trial in the court below the respondent contended that the stipulations in the deed to the city of Portland were conditions subsequent, aud the failure on the part of the city to keep and perform any or either of them defeated its estate in the lands granted, and that the defendant might re-enter as for condition broken. The respondent introduced evidence tending to prove that said land had not been used as a cemetery and burial ground siuce 1879; that the enclosure had been allowed to fall into decay, and that the land was no longer enclosed at the time the respondent re-entered in 1885; that a large number of bodies which had been buried there had been taken up and removed, and that there were but few bodies buried there now; that the ground had never been laid off in lots for burial purposes; that none of said lots had ever been sold, and that no deed for a family burial lot had ever been delivered by the city to respondent. To all of this evidence the plaintiff objected; but its objections were overruled and exceptions duly taken. The respondent then offered in evidence section 12 of ordinance No. 3983, which punishes by fine or imprisonment any person who shall inter the body of any deceased person in any lot, place, or premises within the corporate limits of said city, to which also objections were made, which being overruled, exceptions were duly taken.
The court, in instructing the jury, undertook to construe the deed to the city, which was its duty, and in construing it particularly pointed out each one of the specifications in said deed called conditions subsequent, and in effect instructed the jury that
1. In Raley v. Umatilla County, 15 Or. 172, we had occasion to consider the doctrine of estates upon condition, and particularly upon condition subsequent, and reached the conclusion that courts will not favor the forfeiture of estates, and that the rule of the common law that estates upon condition may be defeated by- non-performance of the condition subsequent is to be construed strictly; and that if there is any other reasonable construction which can be given to a deed so as to avoid a forfeiture, it ought to receive such construction. In Wier v. Simmons, 55 Vis. 637, the language of the deed was: “Upon the express
2. Neither do the words “in trust, nevertheless, and upon condition always.” To use the premises for public worship in a deed of land to a religious society necessarily create a condition. (Sohier v. Trinity Church, 109 Mass. 1; Stanley v. Colt, 5 Wall. 119; Chapin v. Harris, 8 Allen, 594.) In Wright v. Watkins, 2 Best & Smith, 232, the words “upon this express condition” used in a will were held not to create an estate upon condition. These words were followed by others directing a legatee to pay certain bequests. So land conveyed to a religious
3. We may now turn to the deed from Terwilliger to the city of Portland, and the contract which preceded it. These writings are so connected together by the subject-matter, and by reference in the deed to the contract, that it cannot properly be construed without reference to the contract. It is probable that the city of Portland had, prior to the twenty-fifth day of August, 1854, the date of the agreement, under some arrangement with the defendant, or in contemplation of the execution of said agreement, been let into the possession of the land in controversy; if not before that time, certainly at the time said agreement was made, for the writing declares “that until said deed or deeds shall be executed as aforesaid, the said city of Portland shall peaceably and quietly hold, enjoy, and use the said land for the purpose of a cemetery.” By the terms of this agreement the city of Portland bound itself to perform several things: (1) To expend the sum of four hundred dollars in the building of a road from said city to said cemetery; (2) that one-fourth part of said ten acres of land should be reserved as for a public burial ground; (3) that the proceeds of all lots sold should be expended in enclosing said ten acres of land with a good substantial fence, and otherwise improving and adorning said cemetery lands ;■ (4) to convey to Terwilliger and Carruthers, each one family buiral lot, upon the execution of their deed to the
4. I doubt very much whether the defendant could, in any view of the subject, be permitted by the covenants in his deed to allege or prove the city of Portland had not performed the several covenants on its part to be performed by the terms of the agreement, for the reason it is expressly declared in the deed that the same on the part of the city of Portland had been done, performed, and concluded on the part of the city of Portland at the time of the execution of said deed. If this language refers to the city’s part of said agreement, as I am inclined to think it does, the defendant has by his solemn admission under seal precluded himself from proving to the contrary. It is true the same requirements are repeated in the deed; but if the plaintiff had already performed them, the repetition would impose no new or additional duty or obligation.
5. This deed does not provide that if the city of Portland shrill cease to use said premises as a cemetery its title thereto shall terminate, nor is any right of re-entry reserved by the
6. Looking at the writings themselves, their language, the situation of the property, the object and method of its acquisition by the city, and all the circumstances attending the transaction, so far as it is proper to consider them, I am inclined to think what the defendant claims are conditions in this deed must be held to be covenants, and that their non-observance in no man
7. But there is another view of this subject, which I think ought not to be passed Avithout notice. Conceding that the estate was ATested in the city of Portland on condition subsequent as to the continued use and occupation of the same as a cemetery, it becomes material to inquire Avhat effect did the prohibition of that use by the common council have upon the title.
The letters patent confirmed to that corporation, and to their successors forever, the piece of land, as and for a church-yard, cemetery', and burying-place, with the rights, customs, fees, perquisites, profits, etc., as the same were then in the possession of that corporation; that at and immediately after the grant the land was appropriated by the corporation as a cemetery and burying-place, for the interment of dead bodies within the same, as and for certain fees, perquisites, and profits then and there charged, demanded, taken, and received for such interments, respectfully, to the use and benefit of the corporation, etc.; that the defendant was the sexton, and in the service and employment of the church, and as such had charge or custody
8. It would seem to follow from what has been already said that the city lost no rights and forfeited no property by the exercise of its undoubted police powers. It was a public legislative power vested in it, to be exercised for the purpose of securing and promoting the health, peace, and good order of the city, and it could not be fettered in any manner, either by contract or otherwise. It is true the burial of the dead at the place in question was lawful at the date of the deed, but the common council by the passage of the ordinance rendered it unlawful. Now assuming this deed to have been made upon a condition subsequent, if this ordinance had been in force at the date of the deed, the condition would have been unlawful, and the grantee would have taken the estate freed from the condition. (Weathersby v. Weathersby, 13 Smedes & M. 685; Rogers v. Sebastian, 21 Ark. 440; Randall v. Marble, 69 Me. 310; Barksdale v. Elam, 30 Miss. 694.) And there 'is authority for holding that the same result follows where there is a change in the government; it becomes illegal or contrary to the policy of the laws. (Wheeler v. Moody, 9 Tex. 372.) And the same principle seems to be recognized in Davis v. Gray, 16 Wall. 203, where the head note is as follows: “When the State of Texas had made to a railroad company a large grant of lands, defeasible if certain things were not done within a certain time by the company, the fact that the so-called secession of the State and her plunging into the war, and prosecuting it, rendered it impossible for the company to fulfill the conditions in law, abrogated them.”
The ruling of the court below being inconsistent with what is here said, the same was erroneous. The judgment will therefore be reversed, and the cause remanded for a new trial.
Rehearing
on rehearing.—Counsel for respondent on this
It was by the act of the legislature, extending and enlarging the corporate limits of the city, that said ordinance was made to affect the property in controversy. I think the effect would be the same in either case; but under these facts it cannot be said that the ordinance in question was made operative on this property by the immediate act of the city or its officers.
I have carefully re-examined the conclusions already announced and do not find any sufficient reason to change or modify them. The motion for rehearing must therefore be denied.