55 Ind. App. 232 | Ind. Ct. App. | 1913
This was a suit by appellant to quiet title to, and for possession of certain real estate in Madison County, Indiana. No question is raised on the pleadings, therefore they need not be set out.
Special findings of fact were made and conclusions of law stated thereon by the court, the substance of which is as follows: On March 23, 1832, Henry Snell entered from the United States government, certain described real estate in Madison County, Indiana. By said entry and continuing in possession from that date to August 4, 1854, he became the owner in fee simple thereof. On August 4, 1854, he executed to appellant a deed of conveyance of a portion of said real estate as follows:
“Henry Snell, of Madison County, in the State of Indiana, quitclaim to the trustees of Pall Creek Township, and their successors in office forever, of Madison County, in the State of Indiana, in consideration of the benefit of common school, the following real estate in Madison County, in the State of Indiana, to wit: A part of the west half of the northwest quarter, of Section eight (8), Township Eighteen (18) North, of Range Seven (7) East, * * * containing about one-fourth (1/4) of an acre, so long as the same is used for school purposes. * * *”
Upon these facts the court stated its conclusions of law to be: (1) The deed of conveyance from Henry Snell to appellant, executed on March 4, 1854, did not convey to appellant a fee simple title to the real estate; (2) said deed did not convey the title to the real estate described therein with a condition subsequent; (3) said deed conveyed to appellant the right to the possession and to use said real estate for such time as appellant should continue to use and occupy it for school purposes; (4) appellee Shuman is the owner of said real estate; (5) appellant is not entitled to have its title thereto quieted as against appellee; (6) appellant is not entitled to possession of the real estate as against appellee Shuman. Judgment was rendered accordingly.
It is our judgment that the estate created by this deed was one with a' conditional limitation, and the abandonment of the school by the township trustee, even after a lapse of so many years, as shown by the special findings, terminates the estate held by said township ipso facto. 2 Washburn, Real Property (4th ed.) 24; Ashley v. Warner (1858), 77 Mass. 43; Shenk v. Stahl, supra; Tiedeman, Real Property §281; Green v. Gresham (1899), 21 Tex. Civ. App. 601, 604, 53 S. W. 382; Atlanta Consolidated St. R. Co. v. Jackson (1899), 108 Ga. 634, 638, 34 S. E. 184. The language of the deed, taken together with all the surrounding circumstances connected with the transaction, the situation of the parties, and the condition of the country, the estate granted, its condition and occupation, warrants this court in holding that the construction given to the deed by the lower court was the correct one; that the words “so long as the same shall be used for school purposes” limit the title, and must also be taken to qualify and modify the word “forever” in the first clause. Figgins v. Figgins, supra; Proctor v. Maine Cent. R. Co. (1902), 96 Me. 458, 52 Atl. 933; Moran v. Lezotte (1884), 54 Mich. 83, 19 N. W. 757. Judgment affirmed.
Note.—Reported in 103 N. E. 677. As to mode of taking advantage of breach of condition subsequent, see 93 Am. St. 572. As to wfiat words create condition subsequent, see 79 Am. St. 747. See, also, under (1) 38 Cyc. 1992; (2) 13 Cyc. 706, 711; (4) 35 Cyc. 924; (5) 13 Cyc. 601, 604, 699.