149 S.W.2d 519 | Ky. Ct. App. | 1941
Affirming.
In September, 1913, Charles W. McGaughey and Annie W. McGaughey conveyed to the Spencer County Board of Education a parcel of land containing about one acre located in Spencer County, Kentucky, and known and referred to in this record as "Gray School Lot."
The deed recites a valuable consideration and contains all the language and formalities necessary to convey a fee-simple title, subject, however, to this provision:
"Provided however Should Said property be discontinued for School purposes then the Same Shall Revert back to the owner of the farm from which Taken without any cost whatever and there is also *770 Reserved for the use of Said McGaughey all the Growing Locusts walnut Lumber on Said land and to have the right to cut and take off Same at any time he wishes and Second party agrees to complete the fence around the lot and to Keep up all the fence hereafter and to allow the owner of the farm from which Said land is Taken to Join his or their fencing to the fence around Said lot of Land."
The property conveyed was used for school purposes from the date of the deed until April 21, 1939, when the board of education ceased to maintain a school thereon and abandoned it as a school site. The grantor, Charles W. McGaughey, died intestate a few years ago, leaving surviving him his widow, Annie W. McGaughey, and a number of children. Immediately after the board of education ceased to use the property for school purposes, Annie W. McGaughey and two of her sons moved into the school house and are using it as a dwelling, claiming that since the property had been abandoned for school purposes and under the provisions of the deed, it reverted to them and that they are now the owners of same. The school board, claiming that the deed vested in it a fee-simple title to the property, brought this action in the Spencer circuit court to quiet its title. Upon the issues thus joined, the chancellor held and adjudged the school board to be the owners in fee simple of the parcel of land in controversy, and from that judgment the defendants below have prosecuted this appeal.
The decisive question is whether or not the deed, insofar as it relates to the reversion, or possibility of a reversion, is violative of Section 2360 of the Kentucky Statutes, which reads:
"The absolute power of alienation shall not be suspended, by any limitation or condition whatever, for a longer period than during the continuance of a life or lives in being at the creation of the estate, and twenty-one years and ten months thereafter."
It is the contention of the school board, appellee, that since the contingent reversion was to the "farm" but not to the grantors, their heirs or assigns, the vesting of the contingent reversion was indefinitely suspended, since it was not known who would or might own the farm when the contingency happened, and hence comes within the inhibition of the statute, supra. See *771
Brown et al. v. Columbia Finance Trust Co.,
In Duncan v. Webster County Board of Education,
"But whether the school board's alleged estate be a defeasible or base fee, and the reversionary right a contingent estate and salable, or merely a bare possibility of reverter and inalienable, is immaterial, and need not be decided, since in either event the attempt to vest the reversionary right in [whoever] happened to own the original tract is plainly violative of both the letter and the spirit of Section 2360, Kentucky Statutes."
And, quoting with approval from the cases of Tyler v. Fidelity Columbia Trust Company,
"The test of whether such a provision is contrary to the statute is not whether it may or may not happen within the period fixed by the statute, but whether it is possible that it might not so happen; a possible perpetuity being such a perpetuity as the statute contemplates."
The case, supra, was referred to with approval in the case of Fayette County Board of Education et al. v. Bryan et al.,
Appellants rely on the case of Fayette County v. Morton et al.,
Many other similar and like authorities might be cited, but since the cases, supra, and the cases cited therein are conclusive of the case at bar, we deem it unnecessary to further extend this opinion.
Judgment affirmed.