245 P. 464 | Cal. Ct. App. | 1926
This action was brought by the administratrix of the estate of Joseph H. Kerr, deceased, for the recovery of certain real property and to quiet title thereto in the estate. The defendant High School was given judgment and the plaintiff has appealed therefrom. October 11, 1893, Joseph H. Kerr conveyed the land in dispute to the trustees of the School. The parts of the deed material to the questions raised by the appeal are as follows:
"The said party of the first part, for and in consideration of the sum of one dollar, . . . has remised, released and forever quitclaimed, and by these presents does remise, release and forever quitclaim unto the said parties of the second part and to their successors, all those certain lots, pieces or parcels of land, situate, lying and being in the town of Elk Grove, . . . described as follows, to-wit: Lots number twenty-five, twenty-six, twenty-seven, twenty-eight, twenty-nine and thirty of J.H. Kerr Addition to the town of Elk Grove. . . . Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining and the reversion and reversions, remainder and remainders, rents, issues and profits thereof. . . . To have and to hold all and singular the said premises, *631 together with the appurtenances, unto the said parties of the second part and to their successors forever, provided the same shall be used for the purpose of maintaining thereon a high school, otherwise the above described property shall revert to and become the property of the party of the first part, his heirs, or assigns."
Upon the execution of the deed the High School went into possession of the property, erected buildings thereon, and continuously thereafter maintained a high school upon the premises until September 29, 1922, and during that period of time no other property was used for high school purposes. In the month of December, 1920, at an election duly called to determine the question of changing the location of the High School to another site, which was a half mile distant from the old site, a majority of the electors voted in favor of the change. Thereafter buildings were erected on the new site and since September 29, 1922, the main activities of the High School have been conducted there, but the buildings on the old site continued to be used by classes in agriculture and "during stormy weather the athletic classes and work have been conducted" therein.
Appellant contends that "the following conditions are clearly shown to exist in the provisions of the deed: First: For a continuous `maintaining' of a high school upon said property; Second: For the reversion of the property to the grantor, his heirs or assigns, should the maintaining of a high school upon said property cease." [1] To maintain a school does not necessarily mean to keep it up perpetually. In Whalen v.Baltimore O.R. Co.,
[2] The contracts considered in the foregoing cases were not of such character as to require a strict interpretation thereof against any of the parties thereto, but in this case the rule of strict interpretation is applicable to the condition subsequent contained in the deed. "A condition involving a forfeiture must be strictly interpreted against the party for whose benefit it is created." (Civ. Code, sec.
[3] The deed involved in this case can be reasonably interpreted so as to avoid a forfeiture, even without applying the rule of strict construction discussed in the foregoing decisions. In compliance with the literal terms of the deed, the property was "used for the purpose of maintaining thereon a high school," and the deed does not provide for a reversion upon the discontinuance of such use, but only upon failure to so use it. Adapting the language of the opinion in Texas Pacific R. Co.
v. City of Marshall, supra, the condition of the deed was satisfied when the high school district in good faith, and without any intention at the time of changing the location of the school, erected buildings on the property and conducted a high school therein for twenty-nine years, and until the interests of the school demanded a change of location. Such use of the property was a permanent use under the authorities herein cited. "If, by a condition that certain buildings or a certain structure shall be permanently located upon the granted land, it is meant simply that this land shall in good faith be *634
selected as the site of such buildings or structure, and that the same shall be erected upon the granted land, the condition is fulfilled by the erection of the buildings or structure upon the land, and the use of it for a time for the purpose intended, though the use of it for this purpose is subsequently abandoned." (Jones on the Law of Real Property in Conveyancing, sec. 687. See, also, Crane v. Hyde Park,
[4] Had it been the intention of Kerr that the property should revert upon the discontinuance of its use for high school purposes, it would have been so easy to have so stated, in plain and simple language, that it must be inferred from the terms actually employed that such was not his intention. In the following cases, relied on by appellant, the language used in the instruments there considered was so plain and certain as to require no interpretation. In Parsons v. Smilie,
In view of the conclusion reached upon the main issue in the case, it is unnecessary to determine whether the use which the district is now making of the property constitutes a use "for the purpose of maintaining thereon a high school." The following cases, however, lend support to respondents' contentions in that regard: Reclamation District v. Van Loben Sels,
The judgment is affirmed.
Pullen, J., pro tem., and Plummer, J., concurred.
A petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 22, 1926.