Opinion
June 13, 1949.
1. Deeds — reverter to grantors — ceased to be used for purposes expressly stipulation in grant.
A deed to school trustees stipulated expressly that the property would revert to the grantors or their heirs or assigns should the land cease to be used for school purposes. Later the property was abandoned for all school purposes, although two buildings formerly used for such purposes still stood. The heirs of the grantors took possession of these and tore them down and fenced in the entire property without any protest or adversary proceeding by the school authorities, and such exclusive possession under claim of right was continued by the heirs of the grantors for a period of several years: Held that there had been an actual abandonment of the property for school purposes and that the reverter provision in the deed had become effective.
Headnote as approved by Alexander, J.
APPEAL from the chancery court of Jasper County, ROY P. NOBLE, Chancellor.
O.M. Oates, for appellants, the James heirs.
Reversions, with conditions subsequent, like this, are favored and are legal under our statutes and are descendible. It violates no public policy. It is not void as restraint on alienation or violation of rule against perpetuities. Kilpatrick v. Twin, 10 So.2d 447 (Miss.); Am. Jur., Covenants, Par. 206, et seq.; 26 C.J.S., Deeds, Par. 169, page 566.
The appellants respectfully submit that the language used by the reversion in the James' deed is clear, definite, explicit and harmonious in every detail and there isn't even the slightest doubt to be raised of an ambiguity in the sane construction of this reversionary clause. And it is always the rule and the courts have so held in numerous cases by this court a few I will mention. Allen v. Boykin, 24 So.2d 748, 190 Miss. 417; Gaston v. Mitchel, 192 Miss. 452, 4 So.2d 892; 8 R.C.L., Deeds, pages 978, 1037, and it is said that intention will control words and the courts are interested in this: 8 R.C.L. Par. 149, page 1092. Therefore, in this case at bar it is too clear for argument. But Mississippi will enforce a reverter in a deed or even a possibility of a reverter and they are now alienable either by will or by deed. Ricks et al v. Merchants National Bank Trust Co., 191 Miss. 323, 2 So.2d 344; Rev. Code 1857, C. 36, Art. 1, Code 1930, Par. 2110 and Sec. 3550.
The lower court cites the old Hickory case, styled Russell et al v. Town of Hickory, 135 Miss. 184, 99 So. 897. The facts of that case are not at all in point with the facts of the case at bar. In the Hickory case was where the court held that an injunction would lie against original owners undertaking to re-enter lands deeded for educational purposes after title acquired by limitations. In the case at bar, the H.A. James heirs did not wait until after limitations to begin their claim. They acted promptly when the school moved off these lands, and for these years has ceased to operate on the property in question. In the Hickory case it was at all times used and when the new building was placed on a lot near the new site, the old grounds were used as playgrounds for the children and in moving to the nearby lot, the trustees in that case expressed in the new set up to continue the use of this plot of land for play grounds. Such was not the facts in the case here before us.
Another distinction is in the two cases. In the Hickory case, there was a subsequent instrument releasing the right of reversion in deed of land for school purposes held to be color of title under which adverse possession may extend to the whole tract. In this case the original owner to the Hickory school failed to exercise his rights and was barred by adverse possession. In fact, the release of the reversion, I believe was almost if not altogether, sufficient to destroy the reversion. In the case at bar here no such conditions existed. Therefore, it goes back as our Supreme Court has said "each case must be controlled by the facts in that case and the intentions of the parties." We respectfully submit that the lower court erred in applying the facts to the law in this case. And, too, we respectfully contend that his findings were not in keeping with the weight of the testimony.
Summing up appellants' position, we believe the record of testimony, the facts and the circumstances surrounding this case are as follows:
(a) That Claiborne school had its "stroke of death" on January 2, 1938 when it consolidated with Heidelberg, and moved its last contingent of children, the grammar school, to Heidelberg, leaving behind it the remains of an old dilapidated teachers' home and a cracked-opened school building with window panes gone, with the best of the seats taken to Heidelberg with much of the material (useable) gone where the school had been permanently established with adequate buildings and facilities to meet school needs and educational requirements in the oil city of Heidelberg.
(b) That when this was done, it is appellants' contention that when the Board of Trustees of the Heidelberg school attempted to dispose of these aforesaid buildings out at Claiborne for a military training camp, this gave conclusive proof to appellants that the consolidation and the moving to Heidelberg of the Claiborne School was a permanent thing; and that the property at Claiborne had ceased to be used as school property.
(c) The appellants believe, and so contend, that at this point, the H.A. James heirs were warranted in the belief that their reverter clause, stipulated in the body of their father's deed to Claiborne School, came to life; that these heirs, acting in good faith, as the learned court below so found and stipulated in his opinion, took over the possession, as the law of diligence required them to do, and gave them the legal and equitable right to have the lands placed upon public record for taxes, to dispose of the refuse of the old equipment and buildings to the churches of the community, and, otherwise, place in a state of cultivation, fence and control the same as they have done for the past ten years, more or less, as their own.
(d) And the appellants contend, if they are mistaken in the right to take over possession, they truly believe, and so contend, and that acting in good faith as they were, and found to be by the lower court, in taking over possession without any notice of objection on the part of the trustees from that date until this interpleader was filed and answer made, outside of declining to execute to them a quit claim deed sometimes after possession was taken of the property, then it is the contention of appellants that with knowledge and notice by the trustees of their possession of this land, the trustees did acquiesce and give sanction to the heirs' right in taking over this property under the announced rule laid down by this court in the case of Twin States Realty Company v. Kilpatrick, 26 So.2d 356, rendered May 27, 1946; and that the respondent trustees, herein, are bound by the rule of laches for their long and unreasonable delay for these nearly ten years without taking action in this matter which they never have except by invitation to answer an interpleader. Consequently, we submit that the trustees should be estopped to seek equitable relief in a court of equity when good faith and the rules of honesty required them to be diligent, in the assertion of their rights and particularly so, as in this case, when the trustees had full knowledge of this possession by the heirs acting under the reversion clause stipulated in the deed and known to the trustees as the record herein shows. And particularly so when the lower court finds the heirs in good faith seeking their rights and not wrongfully imposing. We submit after waiting all these years under the circumstances surrounding the facts in this case that the trustees should now be estopped by laches and acquiescence in failing to diligently act, if they thought their rights were and had been invaded.
McFarland McFarland, for appellees, the trustees.
Appellees submit to the court that the trustees of the Heidelberg School used the land in question as school property so long as they had the opportunity, and submit that it is not necessary that a full time school be taught on the grounds for it to be used as school property. In the case of Russell, et al, v. Town of Hickory, 135 Miss. 184, 99 So. 897, there was a deed which included the following reversionary clause: "It is hereby agreed and understood that the above described two acres of land is deeded to the trustees of the Hickory Institute and to their successors in office, for the purpose of maintaining and operating a school for the benefit of the community and surrounding country, and when abandoned for educational purposes then the said two acres of land reverts back to the said party of the first part."
The property had erected on it a school building in 1889 and it was used to maintain a school in until the year 1916 when a new building was constructed on other land. Then when the new building was ready the authorities passed an order declaring their intention not to abandon the old school site for educational purposes but that it was their purpose and intention to reserve it for play grounds and for a place of meeting for the trustees of the school, and for the teachers of the municipality, and for a meeting place for teachers of the county, beat and municipality. Immediately after the construction of the new building the grantor in the original deed took over possession and fenced the property in and the school obtained an injunction against the former owner restraining his actions in so doing. The court specifically held that under the recitals of the deed it was not necessary to teach school in the building on the land but the purposes set forth in their order of intention was sufficient, and that there was no breach of the reversionary clause. There were other points in the case but the court specifically passed upon the point involved in this case. The only difference in the Hickory case and the case at bar is that in the reported case the authorities only passed an order stating their intention, whereas in the case at bar the authorities actually for three or more years and up until the time they were prohibited by the actions of the appellants, carried out the use of the property for school purposes and used same as school property. We submit the case at bar is stronger on the facts than the Hickory case.
The Hickory case also holds that upon the execution and delivery of the deed that "the property was deeded to the trustees in fee simple, subject only to the reservation, and subject to that right only the title vested fully and completely in the said trustees". The learned court below deals at length with the attitude of our court all down through the years on setting in motion a condition subsequent in an absolute deed and working a forfeiture or a reversion.
Appellants by their own actions have prohibted the continued use of the lands as school property.
Appellants introduced two witnesses by which it was established on cross-examination the manner in which possession was actually taken, both of whom were parties in interest and are in this court as appellants. We invite the court's careful consideration to the testimony of Mrs. O.R. James and that of Arthur James. We take no issue with the trial court in holding that these parties acted in good faith, but it is here noted that the advice of the attorney was to get a quit claim deed from the school, and when they failed to succeed in this then the appellants forcefully, and we submit, unlawfully, took the property. Appellants now appear in this court in the unenviable position of asserting a title based on a possibility of reverter when they themselves are the ones who made it impossible for the grantee to continue in the use of the property as school property. These are the facts we had in mind when we alleged on page 7 of our answer to the original bill that appellants come into this court of equity with unclean hands and that they should be estopped, because of their own unlawful actions, in asserting a reversion of the title to said lands because they themselves are the ones who have prevented it from being used as school property from 1942 to the date of the institution of this law suit. A court of equity has never sanctioned such actions.
The trial court in its findings has applied two appropriate and directly in point authorities on this point, to-wit: 19 Am. Jur., Par. 82, page 545, "Impossibility of performance of a condition subsequent which is not attributable to the grantee results in the vesting of the estate freed from the condition. The same result follows where the condition possible at the time of its creation subsequently becomes incapable of performance by reason of circumstances attributable to the grantor. . . ."
And Corpus Juris Secundum 26, Page 494, Paragraph 156 B, "A condition in a deed, whether precedent or subsequent, is not binding after its performance has been rendered impossible or unnecessary by the party imposing it, or by the party for whose benefit the condition was made. . . ."
Chancellor's finding of fact will not be disturbed where there is enough competent evidence to sustain decree.
The instrument by which title to the property in question was vested in the trustees of the Claiborne High School, created in said grantee a fee simple estate, determinable upon a condition subsequent. The breaching of such condition would cause said estate to revert to the grantors, their heirs or assigns by operation of law. Whether or not the condition was breached, was a question of fact to be determined by the learned court after due consideration of all the evidence, facts and circumstances.
The court found that the transferring of the students of Claiborne School to the Heidelberg School in 1938 was done as a temporary arrangement and further, that it was the intention of the trustees to resume classes at the Claiborne school when conditions permitted.
The court further found that the trustees of the Heidelberg Consolidated School District, who, by operation of law, became the successors of the trustees of the Claiborne School, were using the property of the Claiborne School "as best they could under the circumstances" subsequent to the moving of the pupils into Heidelberg in 1938, which was on a temporary basis. In so finding, the court finds that the property had not ceased to be used as school property.
The court further finds that by the acts of the heirs of H.A. James, active use of the property by the trustees of the Heidelberg Consolidated School was made impossible and that said acts were unjustified and constituted a trespass upon the property of the Heidelbrg Consolidated School at a time when the property was being used in accordance with the intention of the grantor.
The foregoing findings by the learned court below more than gave the court sufficient grounds upon which to base the final decree.
This court, through an unbroken line of decisions, has firmly and rigidly held fast to the sound principle of law that, a chancellor's finding of fact will not be disturbed unless manifestly wrong.
Bill of interpleader was filed by appellee, the defendants, including appellants, the County of Jasper, the Trustees of the Heidelberg Special Consolidated School and others. There were no claims made by any of the parties except the James heirs and the Trustees of the Heidelberg School. The bill sought an adjudication of the title to certain funds impounded by appellee as proceeds from royalties accumulated from the production of oil from the lands involved. The answer of the James heirs sets forth their claim to the lands and the royalties therefrom, and prays for cancellation of any claims by the Trustees. The Trustees set up their claim to the royalties, and the ownership of the lands. From a decree in favor of the Trustees, the James heirs appeal.
Our decision is based upon a construction of a certain deed executed by H.A. James and Wife to the Trustees of the Claiborne Consolidated High School, which is as follows:
"In consideration of One Dollar and other good and valuable considerations, we convey and warrant to the Trustees and their successors in office of the Claiborne Consolidated High School the following described land to-wit:
"Beginning 7 chs. 73 lks, North of S.W. Corner of SE 1/4 of NW 1/4, running North of said Land Line 8 chs, 73 lks. to Heidelberg and Bay Springs Public Road, thence East along said road 8 chs. 82 lks, thence South to South Land Line of SE 1/4 of NW 1/4 17 chs. 48 lks. thence West 2 chs. 9 lks. thence North 7 chs. 73 lks, thence West 6 chs, 39 lks. back to point of beginning, containing 10 acres more or less. Section 35, twp. 1, Range 12 East, situated in First Judicial District, Jasper County, Mississippi.
"In case the above described land ceased to be used as School property the said land is to be reverted back to us, our heirs, executors or assigns.
"Given under our hand this the 13th day of September, 1916.
"H.A. James "Victoria James"
The decree covers a tract of 7.65 acres which by agreement was held to be alone in present controversy. These lands are identified as follows:
"A certain tract of land described as beginning 7 chains and 73 links North of the Southwest Corner of SE 1/4 of NW 1/4, running North on said line 8 chains and 73 links to the Heidelberg and Bay Springs Road; thence East along said road 8 chains and 82 links; thence South 10 chains and 4 links or 663 feet; thence West 8 chains and 39 links or 554 feet, to the point of beginning, containing 7.65 acres, more or less, Section 35, Township 1 North, Range 12 East, First Judicial District, Jasper County, Mississippi."
The restrictive clause is the target of our examination. We therefore review the testimony pertinent to the issue of abandonment. The appellants executed a mineral lease to appellee in 1944. In 1945, the Trustees also executed a similar lease.
The original grantee in what is described as a deed of of gift was the Claiborne School Trustees. There was erected on the lands for school purposes in 1916 a two-story frame building for high school purposes. A few years later, there was erected a stone or concrete structure for use as a vocational or science department. There was also erected a home for teachers. The frame building burned about the year 1928 or 1929. Thereupon, all high school pupils were transferred to, and enrolled in, the Heidelberg School. The Claiborne High School was consolidated with the Heidelberg School in 1928. The store or block building continued to be utilized for grammar school needs. The grammar school was abandoned and consolidated with the Heidelberg School in 1938. This was because of a lack of pupils, the necessity for reduction of the teaching staff to a single teacher, and because of inconvenient access due to poor roads and bridges. However, one of the teachers at the Heidelberg School continued to reside in the teacher's home in the Claiborne district for about one year.
It is asserted by appellee that the Claiborne facilities that remained were utilized for vocational classes, night instruction and town meetings, but the testimony that these meetings or classes were conducted by the Heidelberg Trustees and upon the Claiborne School lands is far from satisfactory.
About the year 1929, the Trustees of the Heidelberg School floated a bond issue in the amount of $65,000 to take care of the needs occasioned by the new access of pupils from the Claiborne School. Later, bond issues increased the total to between $150,000 and $200,000. Former patrons of the Claiborne School had for some time been urging consolidation with the Heidelberg School.
In 1940, appellants took possession of the Claiborne School property, locked the buildings, and placed the land upon the tax rolls. They have paid taxes under assessment to the H. A James Estate since that time. The last surviving teacher was requested by James to pay rent or move. She adopted the latter course and returned to Heidelberg School where she was teaching. There were other acts of dominion asserted by the appellants, including the fencing of the grounds, the placing of locks on the buildings and their later destruction with salvage of materials.
There appears to have been no objection by the trustees of the Heidelberg School, or the board of supervisors, or any one else. These trustees undertook to dispose of the lands to the United States for camp purposes at the beginning of the late war, but upon learning of the claims by appellants they abandoned the project. One of the Heidelberg Trustees advised appellants in substance that they had abandoned the Claiborne School. It was in fact completely abandoned as a school in the year 1939. Appellees' contention is restricted to the assertion that although physically abandoned, they retained an attitude of dominion and that the abandonment was only under a temporary emergency. The record, including the concentration of all the pupils in the Heidelberg School, the fact of consolidation and the servicing of pupils in the old school district by buses from the new school, and the enlargment of the facilities of the latter through successive bond issues, belie this.
At no time was there any protest or proceeding against appellants' repossession of the property. Although the Heidelberg Trustees were unwilling to execute a quitclaim deed to appellants upon their demand, this is not as significant as the fact of the demand. Appellants have been in undisturbed and notorious possession of the lands since 1940. Deeds between the James heirs were placed of record, and, as stated, appellants executed a mineral lease thereon in 1944.
The legal question presented is whether the land had "ceased to be used as school property." We have already emphasized that physically and practically it was completely abandoned in 1939, and has not been since so used. Code 1942, Section 6373, does not militate against our conclusions. All dates, some variance appearing, are approximate.
In Twin States Realty Co. v. Kilpatrick, 199 Miss. 545, 26 So.2d 356, a delay by a grantor for six years to insist upon a reversion was held to be belated. It is a pertinent analogy. In Buck v. Town of Macon, 85 Miss. 580, 37 So. 460, 461, a non-user for a period of two and a half years was held inadequate, yet the Court appropriately observed that there was "no averment that the property [had] actually been put to any other use." The point was raised by demurrer to the declaration. This case is therefore without force, since there is here no dispute as to the use and the unchallenged exercise of dominion by appellants promptly upon its abandonment.
Russell v. Town of Hickory, 135 Miss. 184, 99 So. 897, is without point. It involved a waiver by the owner of his right to reversion. Moreover, the lands were not in fact abandoned for school purposes, and an expression to that effect was noted upon the minutes of the school board.
Other cases cited by appellees fail to sustain their contention that the attitude of the trustees was so at variance with the overwhelming circumstantial evidence as to avoid a finding of abandonment. We have available no yardstick by which to measure abandonment by the calendar. If the intent to abandon is formed and executed, the reversion arises forthwith. There is no break in the continuity of title. The cases serve merely to illustrate the circumstances from which such intent may be deduced. The several periods during which these circumstances may be accumulated into a persuasiveness mass vary with each case. Abandonment in the instant case is fortified by objective and not subjective data.
The discovery of oil upon the disputed tract subsequent to the lease may have constituted a distracting circumstance, which appellees, with a solicitude for their duty to the educable children, could with difficulty ignore, and may, without infringement upon any laws of human nature, be deemed to have stimulated dormant mental reservations which rapidly assumed retroactive force. Yet their conduct, reasonable at the time, and forcibly expressed both in action and non-action, is conclusive that the land "had ceased to be used as school property."
We are of the opinion that the learned chancellor was not adequately supported in his finding that a reverter had not become effective. In view of the fact that the decree was in favor of the Trustees of the Heidelberg Special Consolidated School District, there was no adjudication as to the respective interests of the James heirs. For this reason, the cause will be reversed and remanded for inquiry into, and ascertainment of, the interests of the several appellants in the lands and the impounded royalties.
Reversed and remanded.