133 A. 565 | Pa. | 1926
In 1827, Elizabeth Iseminger conveyed a plot of ground, in what is now the City of Philadelphia, to certain named persons, as the deed recites: "In trust nevertheless and to and for the sole, exclusive and only use of the Mutual Family Burial Ground Association of the City and County of Philadelphia aforesaid and their executors forever, for a possession of burying place or ground unto the several members thereof, respectively and severally and not jointly, to be occupied and to be used by them, their heirs and assigns for no other purpose whatsoever than a cemetery or burial ground, in way and manner in and by the constitution and laws of the Mutual Family Burial Ground Association of the City and County of Philadelphia aforesaid particularly set forth, expressed, limited and declared, etc." It was so used until 1923, when by order of the quarter sessions court made pursuant to the Act of June 25, 1913, P. L. 551, the bodies there buried were removed elsewhere and the use of the plot as a cemetery was discontinued. Thereupon the cemetery authorities for value conveyed the same to Emma M. Dennis, who in turn conveyed it to Frank F. Mathers, the defendant. Later the plaintiffs, as heirs-at-law of Elizabeth Iseminger, brought this ejectment on the contention that the deed from her vested in the grantees a base or conditional fee only, *366 which terminated when the use of the land as a cemetery was discontinued. The pleadings state the case and thereon the trial court, on motion, entered judgment for the defendant and plaintiffs have appealed.
The judgment was properly entered. The charter of the cemetery association permitted it to hold land for burial purposes only, which may account for the deed being so drawn, but a consideration of $1,500 was paid for the plot and the grantor reserved no interest therein or provision for reversion. The above-quoted clause of the deed was at most a limitation on the use of the property but not of the title. It was intended as permanent, not temporary, with no clause of forfeiture. It is a matter of common knowledge that, to meet altered conditions and in the interest of public health, the location of cemeteries must often be changed. Recognizing this, the legislature has provided how and when it may be done. Plaintiffs have no equity; if they can recover here after one hundred years, so could the heirs of a like grantor after five hundred or a thousand years, which would be intolerable. To prevent this, all provisions which seek to tie up real estate and prevent alienation are strictly construed, and as the deed in question makes no provision for a reversion or forfeiture, none exists. To make the estate conditional the words must clearly show such intent: Cook v. Trimble, 9 Watts 15. See also Brendle v. The German Reformed Congregation et al.,
We will not refer in detail to the authorities upon which appellants rely; they are not parallel with the instant case, as is pointed out by the trial court and also in cases above cited. Doubtless a grantor may, under proper circumstances, prevent the use of property for a purpose prohibited in the deed, but that is not this case.
The judgment is affirmed.