Hall v. . Quinn
130 S.E. 18
N.C.
1925
Check Treatment
Adams, J.

It is nеcessary to keep in mind certain clauses in the deed executed in 1897 by Henry Farrior and James W. Blount to the trustеes of the James Sprunt Institute. In the premises it is said that the grantors desired to establish and provide for this institution, which was a high school in the town of Kenansville, and that the Wilmington Presbytery had elected trustees by whom it was to be managed аnd controlled. Following the premises is the clause of conveyance to the “trustees and their succеssors in trust for the Wilmington Presbytery to be used for the purposes of education.” And then the habendum — “to the said trustees, thеir successors and assigns in trust for the only use and benefit of the Wilmington Presbytery forever, and to be used for the purposes of education and for no other purposes.”

The initial question relates to the quality of the estate described in this conveyance. The plaintiff contends that the deed passes to the trustees a fee simрle, with the usual covenants of warranty, while the defendants contend that it conveys an estate in trust defeasiblе upon breach of a condition subsequent appearing upon the face of the instrument.

An estate оn condition expressed in the grant itself is where an estate is granted, either in fee simple or otherwise, with an еxpress qualification annexed, whereby the estate granted shall either commence, be enlarged, or be defeated, upon performance, or breach of such qualification or condition; and a condition subsequent operates upon an estate already created and vested, rendering ‍‌‌​‌‌‌​​‌‌‌‌​​​‌‌​‌‌‌​‌​​‌‌‌‌​‌‌​​​‌​​​​​‌​​​‌‌​‍it liable to be defeated if the condition is broken. 2 BL, 154. “Among the forms of expression which imply a condition in a grant,” says Washburn, “thе writers give the following: ‘on condition’ — ‘provided always’- — ‘if it shall so happen’- — or ‘so that he, the grantee, pаy, etc., within a specified time’; and grants made upon any of these terms vest a conditional estate in *329 tbe grantee. And it is said other words make a condition if there be added a conclusion with a clause of re-entry, оr without such clause, if they declare that, if the feofee does or does not do such an act, his estatе shall cease or be void.” 2 Wash. Real Prop., 5 ed., 3.

The deed to the trustees contains none of these “fоrms of expression” ; no clause of re-entry; no forfeiture of the estate upon condition broken. Brittain v. Taylor, 168 N. C., 271; Church v. Young, 130 N. C., 8. So whether it includes a condition subsequent depends upon the intention of the parties as shown by a proper сonstruction of the language used. “Conditions ‍‌‌​‌‌‌​​‌‌‌‌​​​‌‌​‌‌‌​‌​​‌‌‌‌​‌‌​​​‌​​​​​‌​​​‌‌​‍subsequent are not favored by the law, and are construed strictly, because they tend to destroy estates, and the rigid execution of them is a species of summum jus, and in many eases, hardly ■ reconcilable with conscience.” 4 Kent’s Com. (12 ed. 129); Church v. Bragaw, 144 N. C., 126; Hinton v. Vinson, 180 N. C., 393. A clause in a deed will not be construed as a cоndition subset quent unless it expresses in apt and appropriate language the intention of the parties tо this effect (Braddy v. Elliott, 146 N. C., 578) and a mere statement of the purpose for which the property ‍‌‌​‌‌‌​​‌‌‌‌​​​‌‌​‌‌‌​‌​​‌‌‌‌​‌‌​​​‌​​​​​‌​​​‌‌​‍is to be used is not sufficient tо create such condition. Hunter v. Murfee, 126 Ala., 123; Fitzgerald v. Modoc County, 44 L. R. A. (N. S.), (Cal.), 1229; Wright v. Board of Education, 152 S. W., 543; Forman v. Safe & Trust Co., 80 At. (Md.), 298; Brown v. Caldwell, 48 A. R. (W. V.), 376; Highbee v. Rodeman, 28 N. E. (Ind.), 442; Raley v. Umatilla County, 3 A. S. R., 142. In Rawson v. School District, 7 Allen, 125, Chief Justice Bigelow, in a discussion of the question, made use of the following language, which we may adоpt as applicable in the present case: “We believe there is no authoritative sanction for the doctrine that a deed is to be construed as a grant on a condition subsequent solely for the reasоn that it contains a clause declaring the purpose for which it is intended the granted premises shall be used, whеre such purpose will not inure specially to the benefit of the grantor and his assigns, but is in its nature general and public, and where there are no other words indicating an intent that the grant is to be void if the declared purpose is not fulfilled. If it be asked whether the law will give any force to the words in a deed which declare that the grant is made for a specific purpose or to accomplish a particular object, the answer is, that thеy may, if properly expressed, create a confidence or trust, or amount to a covenant or agreement on the part of the grantee. Thus it is said in Dulce of Norfolk’s case, Dyer, 138 b, that the words ea intentione do not make a condition, but a confidence and trust: See, also, Parish v. Whitney, 3 Gray, 516, and Newell v. Hill, 2 Met., 180, and cases cited. But whether this ‍‌‌​‌‌‌​​‌‌‌‌​​​‌‌​‌‌‌​‌​​‌‌‌‌​‌‌​​​‌​​​​​‌​​​‌‌​‍be so or not, the absence of any *330 right or remedy in favor of tbe grantor under snob a grant to enforce tbe appropriation of land to tbe specific purpose for wbicb is was conveyed, will not, of itself, make that a condition wbicb is not so framed as to warrant in law that interpretation. An estate cannot be made defeasible on a condition subsequent by construction founded оn an argument db inconvementi only, or on considerations of supposed hardship or want of equity.”

It is apparent, we think, that tbe grantors in tbe deed of 1897 did not intend to make a conveyance on condition subsequent. They and others, as corporators, procured tbe passage of an act incorporating ‍‌‌​‌‌‌​​‌‌‌‌​​​‌‌​‌‌‌​‌​​‌‌‌‌​‌‌​​​‌​​​​​‌​​​‌‌​‍tbe institute, and authorizing it to use and enjoy, alien, exchange, invest, convert, and reinvest all its property and assets in like manner with other institutiоns similarly chartered (Page v. Covington, 187 N. C., 621),. and afterwards they brought about tbe execution of tbe mortgage for tbe benefit of tbe sсhool and for tbe purpose they bad in mind. In our opinion tbe deed conveyed to tbe trustees an estate in fee; and as there is no question of alleged rights arising out of a breach of covenant this subject need not be discussed.

Tbe judgment is

Affirmed.