Lassiter v. . Jones
1 S.E.2d 845
N.C.
1939
Check Treatment
ClaRksoN, J.

The questions involved: (1) Have the plaintiffs a right to maintain this action for recovery of property in dispute as heirs at law of grantor where deed does not contain clause of forfeiture or reverter? We think not. (2) Is title to trustees a fee when deed sets out that the property shall remain “vested in perpetuity to the above mentioned trustees and their successors in office” ? We think so.

It will be noted that the deed says: (1) “Have bargained and sold and by these presents do bargain, sell and convey to the said trustees and their successors in office.” (2) “The conditions of this deed are as follows: It is for the exclusive use of the Polenta Male and Female Academy; it shall be used exclusively for school purposes with the upper story of the building for the use of Freemasonry and Odd Fellowship, and occasionally preaching of any Protestant Denomination, if desired, and for no other purpose, the right and title of said cite shall remain *301 vested in perpetuity to tbe above mentioned Trustees and tbeir successors in office.” Tbe habendum: (3) “To have and to bold tbe aforesaid tract or parcel of land and all privileges and appurtenances thereto belonging to tbe said Trustees and tbeir successors forever.”

Tbe deed does not create an estate on condition subsequent for tbe reason that nowhere in tbe deed is there a reverter or reentry clause. There is no language in tbe deed and no intention can be gathered from it that a reversionary interest exists and tbe grant is limited. There is no language in tbe deed that can be construed as a forfeit, that tbe property is either transferred to another or reserved by tbe original grantor.

We think tbe case of Hall v. Quinn, 190 N. C., 326, is decisive of this action. At pp. 328-9 it is said: “In tbe premises it is said that tbe grantors desired to establish and provide for this institution, which was a high school in tbe town of Kenansville, and that tbe Wilmington Presbytery bad elected trustees by whom it was to be managed and controlled. Following tbe premises is tbe clause of conveyance to tbe Trustees and tbeir successors in trust for tbe Wilmington Presbytery to be used for tbe purposes of education.’ And then tbe habendum — To tbe said trustees, tbeir successors and assigns in trust for tbe only use and benefit of tbe Wilmington Presbytery forever, and to be used for tbe purposes of education and for no other purposes.’ Tbe initial question relates to tbe quality of tbe estate described in this conveyance. The plaintiff contends that tbe deed passes to tbe trustees a fee simple, with tbe usual covenants of warranty, while the defendants contend that it conveys an estate in trust defeasible upon breach of a condition subsequent appearing upon tbe face of the instrument. An estate on condition expressed in tbe grant itself is where an estate is granted, either in fee simple or otherwise, with an express qualification annexed, whereby tbe 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 tbe condition is broken. 2 Bl., 154. ‘Among tbe forms of expression which imply a condition in a grant,’ says Washburn, Tbe writers give tbe following: “on condition” — -“provided always” — “if it shall so happen” — or “so that be, tbe grantee, pay, etc., within a specific time”; and grants made upon any of these terms vest a conditional estate in the grantee. And it is said other words make a condition if there be added a conclusion with a clause of reentry, or without such clause, if they declare that, if tbe feoffee does or does not do such an act, bis estate shall cease or be void.’ Wash. Real Prop., 5 Ed., 3. Tbe deed to tbe trustee contains none of these ‘forms of expression’; no clause of reentry; no forfeiture of tbe estate upon condition broken. Brittain v. Taylor, 168 N. C., 271; Church v. Young, 130 *302 N. C., 8. . . . A clause in a deed will not be construed as a condition subsequent unless it expresses in apt and appropriate language the intention of the parties to 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 to create such condition,” citing numerous authorities. Shields v. Harris, 190 N. C., 520; Shannonhouse v. Wolfe, 191 N. C., 769; Church v. Refininq Co., 200 N. C., 469; University v. High Point, 203 N. C., 558 (560).

Defendants in their brief say: “That said deed conveys a fee simple title to the said trustees and their successors in office; that if said acting trustees are not legally appointed then in that event other trustees may be legally appointed by the proper court; that these trustees will have the right to lease said premises to the Woodmen of the World or any other lodge with a reservation for the use of the building for preaching, community gatherings, etc.; that should there never be any more school conducted there, the building could be continued serviceable for preaching, lodge meetings and general community meetings. ... In the instant case the purposes for which the land was deeded has not ceased to exist and is ready for use as lodge purposes, Protestant religious worship or any other community gatherings, regardless of any surplus stipulation appearing in said deed.”

In Shields v. Harris, 190 N. C., 520 (524-5), Parser, J., for the Court, says: “A condition subsequent with a clause of reverter does not appear in the deed recited nor does it arise by clear implication. Braddy v. Elliott, 146 N. C., 578. No apt words are used to indicate an intention to create a condition subsequent which will work with a forfeiture. To every good expressed condition is required an external form, that is, sufficient words to declare an intent in the party to have the estate conditional, and an internal form, that is, such matter as whereof a condition may be made. Shep. Touchstone, Vol. 1, *126 (241) ; Scantlin v. Garvin, 46 Ind., 262. The proper subject matter exists, but the instant deed does not contain the 'sufficient words.’ The usual and proper technical words, such as 'provided,’ 'so as,’ 'on condition,’ or those mentioned by Lord Coke when he says: 'Words of condition are sub conditione, ita quod, proviso/ or the words ‘si’ or 'quod coniingat’ and similar terms with the clause of forfeiture or reentry. Coke on Littleton, 203a, 203b, 204a; Stanley v. Colt, 72 U. S., 119; Hall v. Quinn, ante, 326. Conditions subsequent which work a forfeiture divesting estates are not to be raised readily by inference or argument, for they are not favored by the law. Hall v. Quinn, supra,” citing a wealth of authorities.

In the judgment of the court below is the following: “It is ordered that the clerk of this court, within thirty days from the end of this term of court, appoint three new trustees upon whom duties of the office shall *303 devolve.” There is nothing in the pleading requesting new trustees to be appointed. No doubt, under proper application, a court of equity in certain cases can appoint trustees, as a trust never fails for want of a trustee. We doubt if this power can be delegated to the clerk. No law is cited and we know of none.

The judgment of the court below is

Modified and affirmed.