Opinion
12647
April 29, 1929.
Before BONHAM, J., Greenville, September, 1927. Affirmed.
Action by H.B. McManaway against George W. Clapp. Judgment for plaintiff, and defendant appeals.
The Master's report is as follows:
"The above-entitled case was referred to me with directions to take the testimony and report my findings of fact and conclusions of law with leave to report any special matter.
"I held a reference and took the testimony which is transmitted herewith along with an agreed statement of facts.
"This is an action brought by the plaintiff against the defendant for the specific performance of a written contract for the purchase and sale of a certain lot of real estate on Howe Street, in the City of Greenville, S.C. This lot is separated by Howe Street from the main portion of the campus of Furman University and extends back to a small creek. The defendant agreed to buy this lot of land at a consideration of $2,750.00 declined to accept a deed to said lot which was tendered to him on the ground that the plaintiff did not have a marketable title. The principal objection to the title is that under the trust provisions in the deed from Vardry McBee to The State Convention of the Baptist Denomination of South Carolina in 1851 defendant claims that Furman University had no right to sell the lot in question. The provision in said trust deed is as follows:
"`In trust and to use of Furman University for educational purposes connected with the said Furman University and for no other purpose whatsoever. That is to say that the said The State Convention of the Baptist Denomination in South Carolina shall henceforth and forever permit and suffer the said Furman University to hold, possess and enjoy the said tract or parcel of land as a site and location for all colleges, academies, school houses, professors' houses and other buildings or matters of any kind whatsoever necessary for or connected with the educational purposes of the said Furman University.'
"Defendant also raised the question that Furman University had no title to the property and that the title was in The State Convention of the Baptist Denomination in South Carolina.
"This case depends on the construction of the trust provisions set forth above. The object of the construction of a deed is to ascertain the intention of the parties; and the intention is to be gathered from a consideration of the language used in the entire instrument. Pope et al. v. Patterson, 78 S.C. 334, 58 S.E., 945; Crawford et al. v. Atlantic Coast Lumber Co., 79 S.C. 166, 60 S.E., 446; Atlanta C.A. Ry. Co. v. Victor Mfg. Co., 93 S.C. 397, 76 S.E., 1091.
"The parties to a deed are presumed to intend that it grant all that is necessary to enjoy the right conveyed. Thomas v. Greenville-Carolina Power Co., 105 S.C. 268, 89 S.E., 552.
"Conditions subsequent in conveyances are not favored, because they serve to defeat estates and an unexpressed term will not be imported into such condition on which to claim a breach. Such conditions are construed strictly against the grantor and can only be created by apt language. 10 R.C. L., 664; Wilmore Coal Co. v. Brown (C.C., Pa., 1906), 147 F., 931, decree afirmed (1907) Brown v. Wilmore Coal Co., 153 F., 143, 82 C.C.A., 295; Fitzgerald v. Modoc County, 164 Cal., 493, 129 P., 974, 44 L.R.A. (N.S.), 1229; Central Christian Church v. Lennon, 59 Wn., 425, 109 P., 1027.
"An important consideration in determining whether a clause is a condition subsequent or something else is the presence or absence of a re-entry clause by the grantor or his heirs, or of forfeiture of the estate for breach of condition. Koch v. Streuter, 232 Ill., 594, 83 N.E., 1072; Freer v. Glen Springs Sanitarium Co., 131 App. Div., 352, 115 N Y S., 734, judgment affirmed, 198 N.Y., 575, 92 N.E., 1085, Rehearing denied, 198 N.Y., 602, 92 N.E., 1085.
"In Thompson v. Hart, 133 Ga. 540, 66 S.E., 270, in a deed where the consideration of the grant was expressed as `for the furtherance of the cause of religion and good morals in the community, and the sum of One Dollar,' and a clause providing that the premises shall be used as a place of Divine Worship of a Methodist Church, it was held that this could not be construed as a grant on a condition subsequent. And in the case of Soria v. Harrison County, 96 Miss., 109, 50 So., 443, the provisions of the deed were: `The land hereinafter described shall be kept by said board of police for the use of a court house and jail for the benefit of said county' and `to have and to hold the same, * * * for the use of said county as aforesaid.' The Court held that these provisions did not create a condition subsequent, so as to cause the land to revert on the county removing the court house and jail and exposing the property for sale.
"At the time of the deed in question Greenville was only a village and the price of $150.00 per acre paid for the land in question was very probably an ample consideration at that time. This is further evidenced by the fact that in 1871 the original grantor, Vardry McBee, repurchased a portion of said land at $200.00 per acre. The grant is not upon condition of being void in case the land should cease to be used for the purpose mentioned. On the other hand, the conveyance expresses the purposes for which the land was purchased. The conveyance was to The State Convention of the Baptist Denomination in South Carolina (a corporation duly chartered by Act of the Legislature) in trust for the use of Furman University for educational purposes and for no other purpose, that is to say, to permit Furman University to hold and enjoy the said land as a site for its college and school buildings, professors' houses and other buildings or matters connected with the educational purposes of said University. The deed then expresses the purposes for which the land was purchased and conveyed. The grant is not upon condition `to be void in case the property should cease to be used for these purposes.' If this had been the intention, the parties would have so expressed it. Forfeitures are not encouraged, and will be allowed only where the intent is clear and no other reasonable construction is possible. It is manifest that Vardry McBee intended to part with all the title to the land; that he did not intend to reserve to himself and his heirs any interest, reversionary or otherwise. The purchase was being made with money which doubtless had been contributed by some person or persons for educational purposes. It was but proper that when this money was invested in land, the purpose for which it was contributed should be expressed in the deed of conveyance, and doubtless was inserted at the request of the purchasers. In fact, all property owned by the schools and colleges of our country is for educational purposes. They have no right to use this property for any other than educational purposes, but this fact does not involve any restrictions upon their control, or their power of disposition.
"The deed in question did not convey the land upon conditions subsequent but rather set forth the purpose of conveyance, that is to say, that Furman University has the right to use said property for educational purposes or any other similar matters connected with the University. There are numerous authorities which bear out this construction of the deed. In Packard v. Ames, 16 Gray (Mass.), 327, the Court said that it knew `of no authority by which a grant could declare to be for a specific purpose without other words and be held to be a condition.'
"And in Neely v. Hoskins, 84 Me., 386, 24 A., 882, a conveyance to a bishop of the Protestant Episcopal Church and his successors, made on a valuable consideration `upon the condition that it shall be forever held for the use of the Protestant Episcopal Church,' was held to create a trust and not a condition subsequent.
"In Griffitts v. Cope, 17 Pa., 96, a devise in trust for a society of Quakers forever to build a meeting-house upon the premises if the members of that meeting shall agree to build a meeting-house but not else, was held not to create a condition subsequent as to the continuing use of the premises for that purpose.
"A deed in trust for the use of a religious society and for the benefit of the poor, and a place of worship and burial, made on a valuable consideration, was held not to limit the title. Brendle v. German Reformed Cong. of Jackson Twp., 33 Pa., 415.
"And a conveyance in trust to the grantees to build a house of worship for a religious society and at all times to permit members of that church to preach therein does not create a condition subsequent. Strong v. Doty, 32 Wis. 381, Re. Sellers Chapel M.E. Church, 139 Pa., 61, 21 A., 145, 11 L.R.A., 282.
"And a deed for valuable consideration in trust to permit all the white religious societies and Christians in a certain place to use the land as a common burying ground, and for no other purpose, was held not to be made on a condition subsequent. Brown v. Caldwell, 23 W. Va., 187, 48 Am.Rep., 376.
"And a deed `for the purpose of erecting a church thereon only' this clause following a description of the property, where there was no actual consideration paid, does not create a condition subsequent. Farnham v. Thompson, 34 Minn., 331, 26 N.W., 9, 57 Am. Rep., 59. Neither does a deed of land `for the erection of a hall for the use of' a historical and geological society. Wilkes Barre v. Wyoming Historical G. Soc., 134 Pa., 616, 19 A., 809.
"A deed in consideration of $1 and of affection, making an absolute conveyance in fee in trust to the use of certain congregation cannot be held to create a condition because of the lack of pecuniary consideration and the specification of the use of the land. Schipper v. St. Palais, 37 Ind., 505.
"There are several cases directly in point in aiding in the construction of this deed. A conveyance in consideration of $1.00 to hold `for the special use, and none other, of educational purposes,' does not make a condition subsequent. Raley v. Umatilla County, 15 Or., 172, 13 P., 890, 3 Am. St. Rep., 142.
"A conveyance of a township `for common school purposes' made on a consideration of $5.00 was said not even to tend to create a condition subsequent but merely to specify the use. Higbee v. Rodeman, 129 Ind., 244, 28 N.E., 442.
"A conveyance to a school board and their successors forever `for the erection of a school-house thereon and for no other purposes,' was held to make only a limitation on the use of the property and not a condition subsequent. Curtis v. Topeka Board of Education, 43 Kan., 138, 23 P., 98.
"It is clear that Furman University had a right to convey the land in question provided the proceeds were used in accordance with the trust provisions in the deed, that is to say, for educational purposes and other matters connected with the University, and it is admitted that the proceeds of the sale of this lot and other lots were put into the treasury of the Institution and used for educational and other matters connected with the University.
"In a devise in land in fee to a religious society upon which to build a meeting house it is not implied that the donees shall not use it except for a place of meeting, nor that they shall never sell it and convert the proceeds to the same religious uses. Griffitts v. Cope, 17 Pa., 96.
"A deed conveying property to a corporation `on condition and in trust' that same shall always be devoted to school purposes, without any provision for a reversion, does not create an estate on condition; and discontinuance of the use of the property for school purposes does not work a forfeiture. Carroll County Academy v. Trustees of Gallatin Academy, 104 Ky., 621, 47 S.W. 617.
"In the note of Phillips Gas Oil Co. v. Hillis Lingenfelter, 5 A.L.R., 1495, citing numerous cases, it is held that the insertion in a deed of a parcel of land to a school district, upon which to erect a school house, of the words `for school purposes only' does not restrict the title of the district.
"In 6 Am. Eng. Cyc. of Law, pp. 501-512, it is said: `Certain words, viz., upon condition, so that, and provided, or other Latin equivalents, are recognized as apt and customary, * * * Words declaratory of the consideration for, and the purpose of the conveyance, and the limitation of the use of the property — do not of themselves, render an estate conditional.' Here the words `to be used as a church location' are merely declaratory of the `purpose of the conveyance.'
"In the note to Killgore v. Cabell County Court, L.R.A., 1918-B, 692, the cases on the subject are thoroughly discussed and the doctrine is laid down as follows: `The cases are almost unanimous in holding that recitals in deeds indicating that the land conveyed is to be used for school or educational purposes do not create conditions subsequent rendering the estate liable to divestiture upon a departure from the use specified.'
"It would appear from the authorities cited, that the clause in the deed to State Baptist Convention, did not create a limitation upon the title, but merely declared the purpose of the grantees in purchasing and of the grantor in making the conveyance.
"It will be recalled that the conveyance from Mr. McBee was to the State Convention of the Baptist Denomination, in trust, for Furman University. There might be some question as to whether the Statute of Uses would operate to convey the legal title to Furman University. This is a typical case of a dry or naked trust and authorities are unnecessary to support the contention that the Statute of Uses would operate to convey the fee to Furman University. And then too, this question as applied to the present case would be academic in view of the long lapse of time by reason of which the law would presume the execution of a deed by the State Convention if that were necessary to perfect the title.
"The real defense in this suit rested upon the claim that the title was not free from doubt. The doctrine in this State is as follows: A purchaser will not be compelled to accept a doubtful title. This does not mean that the title must be free from every possible claim, but only that it should be morally certain. It must be a marketable title — one free from reasonable doubt.
"In Maccaw v. Crawley, 59 S.C. 342, 37 S.E., 934, which was a suit for specific performance, it is said: `We are of opinion that even if the plaintiff has not shown an absolutely perfect title to the lot' of land `in question, she has shown, at least, that she has a good, marketable title, which is all that the law requires in a case of this kind.'
"In Miller v. Cramer, 48 S.C. 282, 26 S.E., 657, the Court decreed specific performance where the plaintiff's title rested on adverse possession, the Court saying: That while `the law does not compel one to take a doubtful title,' yet it acts on moral certainties and that a person `will not be permitted to object to a title on account of a bare possibility.'
"See also the following cases: Webb v. Chisolm, 24 S.C. 487; DeSaussure v. Bollmann, 7 S.C. 329; Laurens v. Lucas, 6 Rich. Eq., 217; Thompson v. Dulles, 5 Rich. Eq., 370.
"So that the practical question in this case is whether H.B. McManaway is possessed of a good marketable title to the lot of land in question.
"After searching the authorities very closely, I am convinced that the plaintiff H.B. McManaway has a marketable, fee simple title to the lot of land in question and is entitled to have specific performance of his contract with the defendant.
"I therefore recommend, That a decree be made requiring the defendant George W. Clapp to comply with his contract of purchase by paying plaintiff, H.B. McManaway, $750.00 in cash and executing his note and purchase money mortgage over the lot conveyed, for $2,000.00, $1,000.00 payable one year after date and $1,000.00 two years after date, deferred payments to bear interest from date at the rate of 7% per annum, and thereupon the plaintiff deliver to the defendant a deed conveying in fee simple with general warranty, and dower renounced, the lot of land as described in the complaint. And that said decree provide further that if the defendant should fail to comply with said terms within thirty days from the date of said decree that said lot of land be sold by the Master on the next succeeding sales day or at some subsequent sales day and the proceeds of said sale after paying the costs and expenses be applied to said indebtedness with leave to the said H.B. McManaway to enter up judgment for any deficiency, should there be such deficiency."
The defendant duly excepted to the report of the Master on the following grounds:
"You will please take notice that the defendant herein excepts to the report of E. Inman, Master, in this case and moves to reverse his report for the following prejudicial errors of law.
"1. That the Master erred in holding that under the trust provisions set forth in the deed that Furman University had a right to convey the property.
"2. That the Master erred in holding that said trust provisions did not create a condition subsequent.
"3. That the Master erred in holding that no trust was created.
"4. That the Master erred in holding that the plaintiff in this action is possessed of a good fee simple, marketable title to the lot of land in question."
The matter was heard before Hon. M.L. Bonham, presiding Judge of the Thirteenth Circuit in September, 1927. His decree was filed on October 3, 1927, confirming the report of the Master. His decree is as follows:
"This action was brought to enforce the specific performance of a written contract for the sale by plaintiff and the purchase by defendant of a lot of land situate on Howe Street in the City of Greenville, S.C. The matter was referred to the Master to take the testimony and decide all issues of law and of fact, with leave to report any special matter. The case was heard by him upon an Agreed Statement of Facts, and certain testimony taken by him. Defendant admits the execution of the contract of purchase and sale and defends the action on the ground that he is advised that Furman University, a predecessor in title to plaintiff to the lot of land involved in the case, had no title to the land, and could not convey to plaintiff a valid title; hence plaintiff could not give to defendant a good marketable title. The Master has filed his report, in which he finds against the contentions of the defendant, and concludes that plaintiff is entitled to have specific performance of the contract. The matter is before me on Exceptions to this report, on behalf of the defendant.
"It appears from the Agreed Statement of Facts, and the testimony taken by the Master, that in the year 1851 Vardry McBee conveyed to the State Convention of the Baptist Denomination in South Carolina, a corporation (which for the sake of brevity, I shall call the Baptist State Convention), certain real estate, of which the lot involved in this case was a part. The present controversy arises over the construction of the following provisions of the deed from Vardry McBee to said the Baptist State Convention:
"`In trust and to use of Furman University for educational purposes connected with the said Furman University and for no other purpose whatsoever. That is to say that the said the State Convention of the Baptist Denomination in South Carolina shall henceforth and forever permit and suffer the said Furman University to hold, possess and enjoy the said tract or parcel of land as a site and location for all colleges, academies, school houses, professors' houses and other buildings or matters of any kind whatsoever necessary for or in connection with the educational purposes of the said Furman University.'
"In 1920 Furman University conveyed to plaintiff the lot of land which he contracted to sell to defendant, and which is embraced in the land conveyed by Vardry McBee to the Baptist State Convention. Defendant declined to accept the deed which it is agreed that plaintiff tendered him, for the reasons already stated, to-wit: that Furman University could not convey to plaintiff a fee simple title, hence plaintiff could not convey a marketable title to defendant. The Master, in an able report, decides these issues against the contentions of defendant. His report is so well reasoned, and so fully sustained by the authorities which he cites that I shall adopt it as the judgment of this Court. It is sufficient that I say this: It is always the purpose of the Courts to ascertain the intent of the grantor in a deed of the nature of that under review. In my opinion we shall have reached a solution of this question when we have ascertained the intent of Vardry McBee when he conveyed this property to the Baptist State Convention. Did he intend to make a conditional conveyance, reserving an interest to himself if the conditions were violated, or did he intend to divest himself fully of the title? If he did divest himself in fee of the title, then no one claiming under or through him can question the title. The question of the intention of the grantor, Vardry McBee, is settled conclusively, to my mind, by the admitted fact that twenty years after he had conveyed to the Baptist Convention he purchased from Furman University a portion of the very land he had conveyed, and paid for it a greater price that he had sold it for. There can be, I think, no more convincing manifestation of the fact that the grantor intended to and did part with the fee unconditionally. I am satisfied with the conclusion of the Master that the Statute executed the trust, and that the title is in Furman University.
"It is, therefore, adjudged: That plaintiff has and can convey to defendant a good marketable title, and that he is entitled to have the specific performance of the contract of purchase and sale.
"And it is ordered and decreed: That the Exceptions to the report of the Master be, and are overruled.
"Ordered further: That the defendant George W. Clapp comply with his contract of purchase and sale by paying to the plaintiff, H.B. McManaway, the sum of seven hundred and fifty dollars in cash, and by executing and delivering to him his note and purchase money mortgage of the premises in the sum of two thousand dollars, conditioned for the payment of one thousand dollars one year from date, and one thousand dollars two years from date, with interest from date at the rate of seven per cent. per annum. And that thereupon the plaintiff shall deliver to the defendant a deed conveying to him in fee simple with general warranty and dower renounced the lot of land described in the complaint in this action, and the contract of sale and purchase.
"Ordered further: That if the defendant shall fail to comply with the terms of this order within thirty days after notice of the filing thereof the said premises be sold by the Master of Greenville County at public outcry, at the usual place of public sales in said County, and after due advertisement, on the salesday next succeeding the filing of this order if there be sufficient time to advertise such sale; if there be not sufficient time then the sale shall be on some succeeding salesday, and shall be for cash. After paying the costs and expenses of this action the balance of the proceeds of sale shall be applied to the said indebtedness; and if there be any deficiency after making such applications, the plaintiff is hereby given leave to enter up judgment therefor.
"Let defendant pay the costs of this action."
It was then discovered that the word "Sons" after "grantor" had been left out of the agreed statement of facts, and that instead of the grantor having repurchased the property, it was repurchased by two of his sons, whereupon the attorneys amended the agreed statement of facts as follows:
"It is agreed by the attorneys representing the parties in this action that the second sentence in the last paragraph of the agreed statement of facts should be amended to read:
"`Furman University conveyed three and one-fourth acres of this land to the grantor's sons Vardry McBee and Alexander McBee at $200.00 per acre in 1871.'"
The Master thereupon amended his report as follows:
"On account of the amendment to the agreed statement of facts hereto attached, I beg to submit an amended report as follows: That the second sentence of the last paragraph on page 3 be amended to read thus:
"`This is further evidenced by the fact that in 1871 two of the sons of the original grantor, Vardry McBee, purchased a portion of said land at $200.00 per acre.'
"This amendment does not affect the result of the report nor the recommendations therein."
His Honor, Judge M.L. Bonham, thereupon filed his supplemental decree, dated December 28, 1927, which is as follows:
"It appears by an amendment to the agreed statement of facts and by the amended report of the Master, that Furman University conveyed three and one-fourth acres of the land purchased from Vardry McBee to two of the sons of Vardry McBee, to wit: Vardry McBee and Alexander McBee, in 1871 at $200.00 per acre, and not to the grantor, the elder Vardry McBee as stated in the original report. The original decree filed in this case is modified to the extent that the intention of the original grantor, Vardry McBee, as set forth in said decree, should not be expressed as strongly on the point that it was repurchased twenty years later at a greater price in view of the fact that it was repurchased by two of his sons, and not by the grantor himself. However, the remainder of the decree is unaffected by the amendment to the facts, or by this supplemental decree, and the amended report of the Master is hereby confirmed."
Thereafter within due time, the attorney for the defendant served upon the attorneys for the plaintiff notice of defendant's intention to appeal to the Supreme Court from the judgment entered or to be entered in the case upon the decree and supplemental decree upon the case and exceptions thereafter to be served, and now for the purpose of appeal defendant makes the following exceptions:
"It is respectfully submitted that the Court committed reversible error in the decree and supplemental decree of this case in the following respects:
"(1) In holding that the provisions in the deed did not create a condition subsequent. It being submitted: That it was the intent of the grantor to create conditions subsequent by the provisions in his deed.
"(2) In holding that the Statute of Uses operated to give Furman University a good title. It being submitted: That a duty was imposed upon the trustee to see that the proper use was made of the property in accordance with the provisions in the deed.
"(3) In holding that the provisions did not create a trust so as to be a cloud upon the title. It being submitted: That even though there were no conditions subsequent, there is a trust created which would be a cloud on the title and the plaintiff in this case would not have a marketable title.
"(4) In holding that there was a waiver by the heirs of Vardry McBee, deceased, of any rights they may have because none of them had ever raised any question or attempted to re-enter and re-possess the property. It being submitted: That it would not be necessary for the heirs to re-enter in order to have an interest in the property if there were conditions subsequent.
"(5) In holding that the plaintiff had a good and marketable title to the lot of land in question. It being submitted: That the title is not free from reasonable doubt."
Mr. Hoke B. Black, for appellant, cites: As to condition subsequent created: 91 Atl., 951; 74 A.D., 500; 66 Pac., 10; 129 Pac., 794; 28 So., 7; 5 Atl., 415; 56 Md., 453; 116 Atl., 812; 53 N.W., 807; 56 S.E., 233. Trust created: 23 Pac., 98; 123 S.E., 493. As to waiver of forfeiture: 54 S.E., 968.
Messrs. Mann Plyler, for respondent, cite: Intention in will governs: 79 S.C. 166. Right granted: 105 S.C. 268. No condition subsequent created here: 16 Gray (Mass.) 327; 48 Am. Rep., 376; 57 Am. Rep., 59; 134 Pac., 616; 37 Ind., 505; 15 Or., 172; 129 Ind., 244; 43 Kan., 138. Conditions subsequent not favored: 10 R.C.L., 664; 153 Fed., 143; 83 N.E., 1072; 115 N.Y.S., 234; 92 N.E., 1085; 6 Am. Eng. Cyc. L., 501-512; 84 Me., 386; 17 Pa., 96; 47 S.W. 617; 5 A.L.R., 1495; L.R.A., 1918-B; 692; 130 S.E., 18; 109 S.E., 148. As to marketable title: 59 S.C. 342; 48 S.C. 282.
April 29, 1929. The opinion of the Court was delivered by
This action by the plaintiff, H.B. McManaway, against George W. Clapp, defendant, was commenced in the Court of Common Pleas for Greenville County, November 5, 1926, for the purpose of requiring the specific performance of a written contract dated September 15, 1926, for the purchase and sale of a certain lot of land on Howe Street, in the City of Greenville, S.C. valued at $2,750. The defendant in his answer admitted the allegations of the complaint with reference to the execution of the contract in question, but denied that the plaintiff was entitled to the relief asked for, on the ground that the plaintiff was not the owner in fee of the land and could not convey a good marketable title to the same. The case was referred to E. Inman, Master for Greenville County, to take the testimony and pass upon the issues involved. The report of the Master was in favor of the plaintiff, recommending a specific performance of the contract. To the Master's report the defendant filed exceptions, and the cause was heard by his Honor, Judge M.L. Bonham, who confirmed the Master's report, holding that the plaintiff had a good and marketable title to the lot of land in question, and ordered a specific performance of the contract. From this decree the defendant has appealed to this Court, and asks a reversal of the decree of the Circuit Judge upon the grounds stated in the exceptions, which will be reported with the case.
The issues involved and the facts pertinent to the questions presented to this Court are stated in the "Agreed Statement of Facts" appearing in the Transcript of Record. This statement is as follows:
"This is an action brought for the specific performance of a written contract for the purchase and sale of a certain lot of real estate on Howe Street in the City of Greenville, S.C. The defendant declined to accept the deed tendered him on the ground that one of plaintiff's predecessors in title to-wit: Furman University, could not convey a fee-simple marketable title and that therefore plaintiff could not convey a marketable title to defendant. The objections raised by defendant arose out of the provisions in a deed from Vardry McBee to the State Convention of the Baptist Denomination of South Carolina a corporation in 1851."
The provisions are:
"In trust and to use of Furman University for educational purposes connected with the said Furman University and for no other purpose whatsoever. That is to say that the said the State Convention of the Baptist Denomination in South Carolina shall henceforth and forever permit and suffer the said Furman University to hold, possess and enjoy the said tract or parcel of land as a site and location for all colleges, academies, school houses, professors' houses and other buildings or matters of any kind whatsoever necessary for or connected with the educational purposes of the said Furman University.
"Defendant raises objections on two grounds:
"1. That under the trust provisions, Furman University has no right to sell this property.
"2. That the Statute of Uses did not operate to give Furman University good title.
"Defendant is ready, able and willing to carry out his agreement provided said title is a good and marketable one.
"Said tract of land was conveyed to the Baptist State Convention in 1851 at a consideration of $150.00 per acre. Furman University re-conveyed three and one-fourth acres of this land to the grantor at $200.00 per acre in 1871. Furman University also conveyed several lots from time to time along the edge of the campus to various parties and none of the heirs of Vardry McBee have ever raised any question or attempted to re-enter and repossess same. The proceeds of the sales of the various lots were put into the treasury of Furman University and used for educational purposes and other matters connected with said University."
An error having been discovered as to the wording of the second sentence in the above paragraph, it was agreed that the same be amended to read as follows: "Furman University conveyed three and one-fourth acres of this land to the grantor's sons, Vardry McBee and Alexander McBee at $200.00 per acre in 1871."
In his testimony the defendant stated that he was ready and willing to comply with the contract if the plaintiff had a good marketable title, and that he had refused to accept the deed tendered by the plaintiff because he had been advised by counsel that the plaintiff did not have a fee-simple, marketable title.
It appears from the exhibits that the deeds from Vardry McBee to the State Convention of the Baptist Denomination of South Carolina, conveying lands, included the lot of land in question at a consideration of $150 per acre, and contained the above-mentioned trust provisions. Further, the transcript shows that there is a record of a deed from Furman University to Vardry McBee and Alexander McBee (sons of the Vardry McBee who executed the deed in question) dated March ____, 1871, conveying 3 1/4 acres at a consideration of $200 per acre, which tract was part of the original tract sold by the said Vardry McBee to the State Baptist Convention.
We agree with the conclusion reached by the Master and the Circuit Judge, and for the reasons stated in the Master's report and the decree of the Circuit Judge the appellant's exceptions are overruled, and it is the judgment of this Court that the judgment of the Circuit Court be affirmed.
MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES COTHRAN, BLEASE and STABLER concur.