168 Ga. 359 | Ga. | 1929
(After stating the foregoing facts.)
In the granting clause of his deed to the Board of Education, Pearson, “for and in consideration of five dollars to him in hand paid,” bargained, granted, sold, and conveyed to said board, and its successors in office, a described acre of land, it being declared in this clause of the deed that said lot was “to be used by said Board of Education as a public school for whites.” In the habendum clause said board was “to have and to hold the same for the uses aforesaid forever.” Eor some years past the Board of .Education had not been conducting a school on said lot for white children, and had entered into negotiations with Ilollomon for the sale to him of this lot. Ilollomon, the grantee of Pearson, under a subsequent deed conveying a larger tract of land which embraces said lot, contends that the deed to the Board of Education does not convey the fee in said lot, but only an easement, or an estate on condition or limitation, which ceased and reverted to the grantor, or his assignee, when the Board of Education ceased to use the same as a school for white children. He further contends that the deed from Pearson to the board creates a trust, which has failed, and that in consequence a resulting trust is implied for the benefit of the grantor or his heirs. He further contends that said deed evidences a gift for a specific express purpose, which has failed, and that for this reason the board holds said land as trustee for the donor or his next of kin, or assignee. This makes it necessary to construe this deed, and to determine whether the above contentions are sound. This deed does not convey an estate less than the fee. Every conveyance, properly executed, must be construed to convey the fee, unless a less estate is mentioned and limited in such conveyance. Civil
Nor did an implied trust arise, under paragraph 4 of section 3739 of the Civil Code, in favor of the grantor in this deed from the fact that the Board of Education had discontinued the operation of a school for white children on this lot. The paragraph • cited applies only where a trust is expressly created, or where no uses are declared, or where the uses are ineffectually declared or extend to a part of the estate, or the uses fail for any cause. No implied trust arises under this section in favor of the grantor in this deed, first, because it does not create an express trust; and second, because there had been no failure of such uses, if an express trust had been created, within the meaning of this section. It follows that it does not appear from the record that the trust, if one had been expressly created, had .failed or had become impossible of accomplishment. Huger v. Protestant Episcopal Church, 137 Ga. 205 (73 S. E. 385).
This deed does not evidence a mere gift of this land by Pearson to the Board of Education. It was expressly executed for and in consideration of $5 cash in hand paid to the grantor. A conveyance which expresses as a consideration a sum of money, or any other thing which the law deems valuable, no matter how small
Does this deed create an estate on condition subsequent? An estate on condition is one granted either in fee simple or otherwise, with an express qualification annexed, where the estate should either commence, be enlarged, or defeated, upon performance or breach of such qualification or condition. These conditions may be either precedent or subsequent. Civil Code (1910), §§ 3716, 3717. Conditions which go to the defeat of an estate must be strictly construed. § 4224. The law inclines to construe conditions subsequent to be remediable in damages, rather than by forfeiture. Hilton v. Central of Ga. Ry. Co., 146 Ga. 812 (92 S. E. 642). “A deed will not be construed as a grant on condition subsequent, unless the language used by express terms creates an estate on condition, or unless the intent of the grantor to create a conditional estate is manifest from the reading of the entire instrument.” Thompson v. Harl, 133 Ga. 540 (66 S. E. 270); 2 Washburn, Real Prop. (6th ed.) § 942. In Self v. Billings, 139 Ga. 400 (77 S. E. 562), this court held that “the recitals in a deed relied upon to create an estate upon condition are to be construed in connection with the entire instrument, looking always to the intention of the parties, giving to any technical words employed the meaning intended by the parties, so far as ascertainable from the instrument, rather than their technical meaning; and if, upon a strict construction of the deed in its entirety (there being no express words of defeasance), it should be doubtful whether the instrument created an estate upon condition subsequent, or the words employed imported covenant, the ■ latter construction should be adopted.” The language of this deed does not expressly create an estate on condition. Is the intent of the grantor to create a conditional estate manifest from a reading of the entire instrument? The only language in this deed which bears upon this question is the provision that this lot is “to be used
Does this deed convey an estate upon a conditional limitation? An estate upon condition, properly speaking, differs from what is known as a conditional limitation. In either case the estate is a conditional one. In the ease of an estate on condition, though the event happened upon which the estate may be defeated, it requires some act to be done, such as making an entry, in order to effect this. In the case of an estate upon a conditional limitation, the happening of the event is in itself the limit beyond which the estate no longer exists, but the estate is determined by the operation of the law, without requiring any act to be done by any one. 2 Washburn, Real Prop. (6th ed.) §§ 970, 971; Norris v. Milner, 20
So we are of the opinion that the deed in question does not create ■ an estate on condition subsequent nor an estate with a conditional limitation. This conclusion is fully? born out by decisions of this court to which we shall now refer. In Thornton v. Trammell, 39 Ga. 202, a deed conveyed an unconditional fee-simple title to a tract of land. The deed contained this provision “It being expressly understood by the parties that the said tract or parcel of land is not to be put to any other use than that of a depot square, and that no business or improvements are to be put on said tract but that which is immediately connected with the Western and Atlantic Railroad.” This court held that these words in the deed were words of covenant, and not words of condition; and that the plaintiff’s remedy for a beach thereof was an action thereon for damages, and not a forfeiture of the estate. In that case there was a dissenting opinion; but we believe that the decision of the majority expresses the sounder law. In Mayor &c. of Macon v. E. T., V. & Ga. Ry. Co., 82 Ga. 501 (9 S. E. 1127), there was a grant by the City of Macon of land for railroad purpose “for so long as the property should be used for railroad purposes.” There was no consideration for the grant save the local benefits which might result from the use of premises for railroad purposes. This court properly held that the grant was made with the limitation that the estate acquired was to exist only so long as the property was used for the purposes specified, and that the grant marked the limit or boundary beyond which the estate conveyed could not continue. In that case there was a clear limitation of the estate
Counsel for Iiollomon rely upon the cases of Fall Creek Township v. Shuman, 55 Ind. App. 232 (103 N. E. 677), Polebitzke v. John Week Lumber Co., 157 Wis. 377 (147 N. W. 703, Ann. Cas. 1916B, 604), Abercrombie v. Simmons, 71 Kan. 538 (81 Pac. 208, 1 L. R. A. (N. S.) 806, 114 Am. St. R. 509, 6 Ann. Cas. 239), and Pennsylvania Horticultural Society v. Craig, 240 Pa. 137 (87 Atl. 678), to support their contention that the true law upon this subject is contrary to what we hold. In the case first cited the grant was of land to trustees of a school district so long as used for school purposes. Here there was an express limitation of the estate granted. It is true in that case that the court said that “If the original grantor had stated in terms that the land was conveyed to the township to be used for school purposes, it would have been a condition subsequent;” but this remark was made upon a statement
It is insisted that the deed from Pearson to the Board of Education is void for lack of sufficient description, and that for this reason the court erred in granting an interlocutory injunction. The description of the land conveyed by this deed is as follows: “One acre of lot No. 14 in 32nd district of said county [Stewart], situate on the west side of the public road at Brooklyn in said county and being the lot whereon stands a public schoolhouse.” The land conveyed by this deed is “one acre.” It is in land lot 14 in the 32d district of Stewart Cormty. It is situate on the west side of the public road at Brooklyn, and is the lot whereon stands a public schoolhouse. This deed is not void for lack of sufficient description, it being shown that at the time of the execution of this deed there was a schoolhouse on this lot, and that the lot was in ,the shape of'a square, with well-defined boundaries, and that the Board of Education had been in possession of it for twenty-five years. Brice v. Sheffield, 118 Ga. 128 (44 S. E. 843).
The rights of Pearson or his grantee for the recovery of damages for breach of covenant, or to restrain the Board of Education
Judgment affirmed.