Summary
concluding that a deed conveying property for "so long as said lot shall be used as a lot for a school house lot" created a determinable fee that terminated when the grantee decided against operating a school on the lot
Summary of this case from Arell v. PalmerOpinion
No. 4068.
Decided December 4, 1951.
By the terms of a deed which contained in the warranty clause the proviso "so long as said lot shall be used as . . . a school house lot" the parties intended, in the light of the surrounding circumstances, to create a determinable fee. In such case, when the grantee's successor in title decided not to use the lot as a schoolhouse lot the fee terminated and title to the premises with the building erected thereon by the grantee's successor reverted to the original grantor.
BILL IN EQUITY, to determine ownership of a certain tract of land situate in North Hampton and the building thereon known as Centennial Hall.
On October 29, 1875, the defendant conveyed by warranty deed to plaintiff's predecessor, The United North and Center School Districts, the following described tract of land, viz: "A certain piece or parcel of land, situate at said North Hampton Centre as the same is now run and marked, and to be fenced out for the lot of the new School House, bounded as follows: On the West by the highway, on the North by other land of the grantors, on the line as now marked out; East by other land of said grantors, on the line now marked out and to be fenced, on the South by the old School House lot, upon condition that all the space South of the Southerly side of the new school house, and South of a line running by the Southerly side of said school house to other land of said grantors, on the East shall remain open as a common forever and that no religious services shall ever be held in the Hall above the school room of said school house except by the grantors or by their permission, and that the grantees shall erect and maintain the necessary and suitable fences between the grantors and the grantees forever."
Following the habendum clause are the usual covenants of warranty except that the last of them reads as follows, viz: that grantor "will warrant and defend the same to the said grantees, their heirs, successors, and assigns against the lawful claims and demands of any person or persons whomsoever, so long as said lot shall be used as a lot for a school house lot as aforesaid."
Centennial Hall was built thereon in 1876 and was used as a schoolhouse until 1950 when a new school was constructed on another location. At the adjourned annual school meeting held on June 23, 1950, it was voted to sell Centennial Hall to be moved away or torn down and to turn over the land to the town of North Hampton for a public common.
By its petition the plaintiff asked the Court to decree that it was the owner of said land and building free and clear of any and all claims of the defendant. The defendant in its answer sought a decree that said land and building were owned by it in fee simple free from all claims of the plaintiff or the town of North Hampton.
The Court (Goodnow, C.J.) reserved and transferred the same without a ruling.
John W. Perkins and Everett P. Holland (Mr. Perkins orally), for the plaintiff.
Charles M. Dale and Ray E. Burkett (Mr. Burkett orally), for the defendant.
The main issue to be decided is the nature of the estate held by the plaintiff by virtue of the above deed. The defendant maintains that the proviso "so long as said lot shall be used as a lot for a school house lot as aforesaid" applies to the grant with the result that plaintiff acquired a determinable or qualified fee. The plaintiff on the other hand contends that said proviso applies only to the covenant of warranty and that consequently it acquired by said deed a fee simple, the proviso at most impressing a trust thereon, the purpose of which is set out by it.
In proceeding to construe this deed "it is the duty of the court to place itself as nearly as possible in the situation of the parties at the time the instrument was made, that it may gather their intention from the language used, viewed in the light of the surrounding circumstances." Weed v. Woods, 71 N.H. 581, 583; Therrien v. Therrien, 94 N.H. 66, 67.
Although the language used in the deed is not decisive of the issue of what type of estate is created thereby (Therrien v. Therrien supra) it is of importance in arriving at the manifest intention of the parties which is the determinative factor. Hogan v. Lebel, 95 N.H. 95, 97; Gagnon v. Pronovost, 96 N.H. 154, 159. The words "so long as" used here, as well as "while," "until" and "during" are the usual and apt words to create a limited estate such as a determinable fee which estate is recognized in this jurisdiction. Chapin and Wife v. School District, 35 N.H. 445, 450. Reed v. Hatch, 55 N.H. 327, 338; Weed v. Woods, supra, 584; Lyford v. Laconia, 75 N.H. 220, 225.
Plaintiff argues, however, that because this proviso comes at the end of the warranty clause instead of being in the granting or habendum clauses that it was intended merely to limit the warranty to the school district for use as a schoolhouse lot and that this was the only purpose of this limitation.
Viewing the language used "in the light of the surrounding circumstances" (Weed v. Woods, supra) the fact that this court on March 11, 1875, eight months previous to the execution of the deed in question, in the case of Reed v. Hatch, supra, held that a proviso substantially in the same language and placed in the identical part of the deed was not restricted to the covenant of warranty but must be applied to the grant, thus creating a qualified fee, is of the utmost importance in arriving at the intent of the parties in the case before us. As indicative of the intention of the draftsman to create an estate similar to that in the Reed case is the fact that there had been some discussion in that case of the fact that the limiting proviso although it followed a period after the last covenant of warranty nevertheless began with a small letter instead of a capital as would be the usual custom. The deed in this case contains a comma instead of a period after the last covenant of warranty thereby making the proviso which begins with a small letter more in conformity with the usual use of the English language.
It is our opinion therefore that the plaintiff's predecessor in title by the deed it received from defendant obtained a determinable fee which terminated when the plaintiff decided not to use said lot as a schoolhouse lot. When that event occurred the fee reverted to the defendant which holds title to it free from any claim of the plaintiff. Lyford v. Laconia, supra, 225.
The building thereon, Centennial Hall, was erected while the plaintiff was the owner of said land. The record reveals nothing which would prevent it from becoming part of the realty. It also became the property of the defendant free from all claims of the plaintiff when it ceased to use said lot as a schoolhouse lot.
Case discharged.
All concurred.