Williams v. Box Ch. Baptist Church

ALEXANDER, Justice. The Box Church Baptist Church brought this suit against the surviving widow and heirs of P. O. Williams,, deceased, in trespass to try title to recover one acre of land situated in Limestone county. The case was tried before the court without a jury and resulted in judgment for plaintiff. The defendants appealed. On September 17, 1923, P. O. Williams and wife owned and resided on a fifty-acre tract of land in Limestone county. On that date they conveyed to the appellee church out of said tract the one acre of land here involved. The deed of conveyance contained the following material provisions: “That we, P. O. Williams and Frances Williams, wife of P. O. Williams * * * for and in consideration *135 of the sum of Fifty ($50.00) and 00/100 Dollars to us paid by The Box Church Baptist Church * * * and for the further consideration that there are not to be erected any building or buildings other than a Church House for worship on the land herein conveyed; And it is stipulated and agreed that a violation of the above agreement shall render this deed null and void and the title to this land shall go back to P. O. Williams and his heirs. And should this land or premises at any time be used for any purpose other than church the title to said land and premises shall go back to P. O. Williams and his heirs. % * * To have and to hold, the above described premises, * * * unto the said Box Church Baptist Church so long as said premises are used as agreed herein.” Ih March, Í933, the widow and children of P. Ó. Williams, deceased, extended their fence around the one acre of land in question and laid claim thereto on the theory that the church had breached the restrictions contained in the deed and as a consequence had forfeited title to the property. The trial court filed findings of fact in which it was found that after the execution and delivery of the deed in question the church went into possession of the property and erected a substantial church house thereon, which building is still on the premises; that no other kind or character of building has ever been erected on said premises; that said premises were used more or less regularly for church services until the early part of the year 1931; that on account of lack of funds with which to employ a pastor there had not been any preaching or other church services held on the premises during approximately eighteen months next prior to the trial of this case; but that the church organization was still intact with its officers and deacons, and said premises had not been abandoned by the church. It was further found that six or seven years prior to the trial a traveling show erected a tent on the premises and showed two nights, charging an admission fee and divided the proceeds thereof with the church; that a community play was held in the church building and the proceeds received from admission fees were divided with the church; that on rare occasions not more often than once every two years local candidates for political offices had been permitted to make their announcements in the church building, at which time they were afforded an opportunity to contribute to the support of the church; that funds received from the tent show and community play, as well as contributions from candidates, were used to discharge the financial obligation of the church; that five or six'years prior to the filing of suit there was conducted in said church house a singing school class for a period of ten nights, the members of the class using the song books belonging to the church; that since the death of P. O. Williams, which occurred in 1931, the girls home demonstration club of the community has held occasional meetings in the building. From the above facts the trial court concluded that there had not been any substantial breach of the restrictions contained in the deed. Hence judgment was rendered for the plaintiff. We are of the opinion that the trial court was correct in holding that there had' not been such a substantial breach of the restrictions contained in the deed above referred to as to authorize a forfeiture of the title. It will be noted that the deed does not expressly require that the property be used for any particular purpose, but merely forbids its use for any purpose other than church. Where it is sought to forfeit the title to property by reason of an alleged breach of a restriction limiting the use thereof, the evidence must establish that there has been an essential diversion of the property to a purpose not authorized by the grant as distinguished from a mere infrequent and temporary use thereof for such purpose at irregular intervals. The breach must be a material and substantial one and not a mere trivial or inconsequential one. 12 Tex. Jur. 134; 18 C. J. 371, 372, 399; Los Angeles University v. Swarth (C. C. A.) 107 F. 798, 54 L. R. A. 262; Hilton v. Central of Georgia R. Co., 146 Ga. 812, 92 S. E. 642. From the findings of the trial court it appears that said property was never used for any purpose other than strictly devotional, except on extremely rare occasions and for very short intervals only, and that even then the programs conducted on the premises were not materially different from those of the ordinary country church. Consequently, if there was ever any breach of the strict letter of the restrictions as contained in the deed, such breaches were trivial and inconsequential and not sufficient to authorize a forfeiture of the title to the property. We think this is the construction placed on the deed by the grantors themselves. The trial court found that they resided within approximately two hundred yards of the property in question from the time of the execution of the deed in 1923 until the death of P. O. Williams in 1931; that the premises were used for the tent show, church play, and other purposes as above indicated a number of *136 years prior to the death of P. O. Williams; that he knew of such uses; but that neither he nor his wife made any complaint thereof during his lifetime and that none of his heirs complained thereof after his death until the present controversy arose in 1933. Such long acquiescence on the part of the grantors indicates that they did not consider the holding of such programs on the premises as amounting to a broach of the restrictions contained in the deed. The judgment of the trial court is therefore affirmed.