168 N.W. 753 | S.D. | 1918
Lead Opinion
Defendants are the trustees and successors in interest of the Lincoln -County Agricultural Society, a domestic corporation, whose charter had expired1 by limitation of time, prior to the comimencment of this -action. On and' prior to the 30th day of March, 1895, -plaintiffs were the owners of a 20-acre .tract of land situated within or adjoining the city of -Canton. On- said 30th day o-f March, 1895,, .plaintiffs executed a -certain, deed by which- they conveyed' -said tract o-f- land to the said Lincoln County Agricultural Society. The portions- of said deed -that a-re material to a determination of the questions presented on this appeal are -as follows :
“For and in consideration of the sum of .one- dollar to them in hand paid by the Lincoln (County Agricultural Society, * * * and the covenants, restrictions, and -limitations, hereinafter mentioned, w|hich covenants, restrictions, and limitations -from- the base of the consideration of the -grant hereinafter -mentioned, and govern an-d control the vesting -of the title to the land hereinafter described, to
“2. The said Lincoln County Agricultural Society, the said party of the second part, shall use the ’premises hereinafter described, for the purposes of an agricultural fair or other legitimate amusements under the direction of the board of directors of said-association only, and shall further cause to be held once in each year for twenty consecutive years from the date hereof an agriculture exhibition fair upon said premises.
“3. That in the event of the failure of said second party to have such agricultural exhibition fair upen said premises for five consecutive years during saidi ¡period of twenty years, then and in that event the title to the above-described land and premises shall vest absolutely in ¡the city of Canton, Lincoln county, South Dakota, -immediately -upon ’the happening -of the -aforesaid event as fully arid effectually to all intents -and purposes as .if this grant' ¡had originally been made to the said city of Canton, subject only to the re-striotion that the city of ¡Canton shall h-oldi and use the said premises for a ¡public park forever.”
It is admitted that an agricultural exhibition was held upon the s-akl ¡premises by the said society as proided for in paragraph 3 above set -out, but it is alleged in the complaint that the defendants, as the trustees of the above-named agricultural society now threaten, to, and are about to, divert the said property from, the uses for which it was conveyed to said society, arid are about to sell the said ¡property in lots, with the intention of preventing the same from hereafter being used for the purposes specified in the said deed, and, among other relief .prayed for by .plaintiffs-, they ask that defendants ibe restrained and enjoined -from selling or
In our view, neither of these contentions is correct. In -order to arrive at the -conclusion reached by respondents, the provisions contained in .paragraph® 2 and 3 above set out must be considered together and treated as a single condition, 'bo- the effect that, by holding an agricultural exhibition fair once in 5 years, the said ■condition was fully complied with. This is not 'a correct interpretation of these paragraphs. These two paragraphs -contain three separate conditions. The first is to -use the said premises for the purpose of an agricultural - fair, or other legitimate amusements. This use is without any limitation of time. The second condition is that the board of directors,of the said association shall cause to be -held, once in each year for 20 consecutive years an agricultural exhibition fair u-pon said- premises. For a failure to-comply with these two -conditions no penalty is provided. The third provision is that, for a- failure to hold an agricultural exhibition fair upon said premises for 5 consecutive years during the said period- of 20 years, the title should vest in the city of Canton, to be used as a public park, forever.
The judgment appealed from is affirmed.
Concurrence Opinion
I concur in the -result, upon the ground that the provisions of the deed, taken as a whole, do not disclose an intent to create a perpetual trust, but rather a trust for the period of 20 years, -which period has expired.