Pickle v. McKissick

The opinion of the Court was delivered by Black, C. J. — The land in dispute was conveyed in 1819 to trustees, to be used as a school-house and place for religious meetings, and a burying-ground. The deed contained an express condition that if it should be converted to any other use, the estate should revert to the grantor. The present plaintiff is the surviving trustee, and the defendant, alleging the condition to have been broken, claims under the grantor. The cause was here before on a state of facts very nearly similar to that which appears now, the only difference being that the evidence of conversion is somewhat stronger. This Court then held that the grant being a charity on which the law looks with favor, could not be forfeited by nonuser, and not for misuser unless it was strictly proved; that the condition could only be broken by a permanent conversion of it to purposes not mentioned in the deed; and that the occasional use of it for other purposes would not work a forfeiture. We go as far as this, and further too. It might have been added that no improper use of the property could be taken advantage of as a breach of the condition, unless such use was with the acquiescence of those interested in the trust, and with the consent of those who had the management of it. The facts are that the property in question ceased to be used as a school-house in 1839, and no religious meeting was held in it after 1841. It was used as a dwelling-house from 1840 or 1841 until 1848, to the total exclusion of all teaching and preaching, and to the entire destruction of all accommodations for either. This was held not to be a breach of the condition. Now, while we reaffirm every principle of law laid down in the opinion of Mr. Justice Rogers, we cannot see our way clear to make the same application of those principles to the facts of this case. When the building was used as a dwelling-house, it was as much perverted from the purpose of the grant as if a factory had been erected on it; and surely if the land had been ploughed or pastured, the case would have been no worse. When such a misuser was continued for seven years without an interruption, how can we say that it was merely occasional ? It seems to us wholly immaterial that the tenant was poor and paid no rent, for although it was charitable in the trustees to furnish a shelter for the desti [236] tute and sick, that was not the sort of charity to which this property had been devoted. The grantor intended it for an almshouse no more than he did for a theatre. That the occupant was a tenant at will, strikes as an argument which might be used against the plaintiff with more force than for him. If a lease for years had been given, the excuse might be set up that it was a, thoughtless act, which though repented of could not be recalled. But putting in a tenant at will was a wrong which could be corrected at any moment, and yet was constantly persisted in while one generation was growing up without education, and another was dying without the religious instruction which this house was meant to afford. It is true the building itself does not appear to have been changed, except by the progress of decay. But what of that? Its occupation by a family made the teaching of a school as impossible as any change in the structure, could. On the whole, we are of opinion that these facts ought to have been submitted' to the jury; and if they could infer from them, and from all the other circumstances of the case, that the misuser was not merely accidental and occasional, but permanent and acquiesced in by the parties interested in the trust, the estate was forfeited,, and the verdict should have been in favor of the defendant. There is only one other point on which we have permitted ourselves to doubt the absolute correctness of the former decision, and that is- the admissibility of the plaintiff’s declarations, and those of his co-trustees, that they had abandoned the house and meant not to reclaim it under the deed. If this question had not been ruled, we might have been inclined to hold that such declarations were evidence of the quo animo with which the acts were done. But it is not perfectly clear, and respect for the authority of our predecessors is too strong within us to be overcome by any opposing considerations which are in the least degree doubtful. Judgment reversed and ven. fa. de nov.