Wilkes-Barre v. Wyoming Historical Soc.

Opinion, Me. Justice Geeen: We quite agree with the learned referee and court below that the act of 5th April, 1870, was a valid exercise of legislative power, and entirely free from the objection that it is unconstitutional. The reasons for thus holding are so satisfactorily set forth in the report of the referee that we deem it unnecessary to repeat them here. But we find ourselves unable to agree that the defendant’s title is void for breach of condition. The deed from the burgess and town council of the borough of Wilkes-Barre to the defendant is the deed of the corporation itself, and not of its officers, executed under the corporate seal and with all due formalities, and it passed to the defendant the fee-simple title to the land in question, if the corporation had [631] the lawful power to convey such a title. The omission of the words, successors and assigns, does not defeat the title. It is true that the resolution of council did impose upon the defendant the condition for the erection of a building to cost not less than forty thousand dollars, and, in general terms, made that condition operative upon the lot No. 46 as well as upon the other lots named in the deed. But when the deed was executed and delivered to the defendant the lot No. 46 was set free from this condition, and it was applied only to the other lots. Passing by questions of subsequent ratification and consent to the title actually conveyed by the deed, it is only necessary to recur to the fifth section of the act of 1870, to ascertain the authority upon which the defendant was entitled to have a conveyance of the. lot in question from the borough. The previous sections of the act had conferred upon the borough power to make sale of lots in the old graveyard, and convey the same in fee-simple, upon a vote of the people to that effect; and then, in the fifth section, the act provided that, “ before any sale of the lots provided for by this act shall be made, a lot not less than thirty feet in front on Washington street,, and one hundred feet deep from said street, shall be set off and conveyed by the burgess and town council of the borough of W ilkesBarre to the Wyoming Historical and Geological Society, for the erection of a hall for the use of said Wyoming. Historical and Geological Society.” The first section ratified a contract made in 1869 between the borough and the trustees of the borough in relation to the old graveyard, and a certain lot of twenty-five acres which had been purchased outside the borough limits for cemetery purposes, and as to which some confusion and doubt had arisen .touching the rights and powers of the contracting parties, and authorized conveyances to be interchanged according to the terms of the contract. The powers conferred by this legislation were exercised by the parties, and the borough, in execution of the condition imposed by the fifth section, passed a resolution on January 21, 1871, to convey to the defendant not merely a .lot of thirty feet by one hundred, but a lot of one. hundred feet in front and one hundred and eight and one half feet in depth, consisting of lots number 46, 47, 48, and part of 49, but upon condition that the defendant should erect thereon within two years .a building to cost not less than forty [632] thousand, dollars. On the 28th of January, 1871, the deed was executed, but with the condition applying only to the lots 47,48, and 49, and expressly stating that the lot 46 represented the minimum quantity of thirty feet front which the borough was required by the act to convey to the defendant. ■ The question arising is, whether the condition in regard to the erection of the building applies to the lot 46. By the terms of the deed, it does not. By the terms of the act, the lot was to be conveyed without consideration, and as the borough accepted the benefits of the law, it must be held to have agreed to perform its conditions. It was not at liberty, therefore, to impose any more onerous conditions or terms upon the grantee than such as were authorized' by the act. There was no authority conferred by the act upon the borough to exact the erection of a building to cost forty thousand dollars, and doubtless the borough authorities so understood, because they granted three times as much land as the act directed, and annexed the condition to the whole grant. The resolution of the council does not say explicitly that it was intended to subject the lot No. 46 to the performance of this condition, though the generality of the language used would require such a construction to be placed upon it. But. the necessity for holding such a construction is dispelled by their deliberate act in conveying the land only one week later, in pursuance of their statutory obligation. It is perfectly manifest that it was their intention to convey the lot No. 46 free of the condition, because they expressly say so, and say that the-lot No. 46 represents the minimum quantity required to be conveyed by the act. There was no intention to violate the terms of the resolution, and there was no evidence of any such purpose. They were best competent to interpret their own resolution, and, as a fair reading of it is entirely consistent with all the terms of the deed, they cannot be considered as at all in conflict. The resolution, as can be well understood, was nothing more than the proper authorization of the conveyance, expressed in somewhat general language, but reciting explicitly that it was done in pursuance of the requirement of the act of 1870. They certainly did not intend to impose any condition applicable to lot No. 46 more onerous than was authorized by the act, and [633] the best proof of the absence of any such intention is found in the language of the deed executed and delivered almost immediately afterwards. The language of the deed would properly be much more formal and ceremonious than the language of the resolution, and, as there is ho essential conflict of meaning between the two, and they can be easily reconciled, it is the dutj1- of the courts to read them as the parties undoubtedly intended them. We therefore hold that the terms of the deed are not in conflict with the true meaning of the resolution, but were intended to be used as a literal compliance with it. As to the use of the lot expressed in the fifth section of the act, it is only necessary to say that it is not restrictive of the grant, and that the title is not dependent upon a literal compliance with the use expressed. The act simply says that the lot shall be conveyed to the defendant “ for the erection of a hall for the use of said Wyoming Historical and Geological Society.” No condition of any kind was imposed. The passage of the title was not made to depend upon the performance of any terms. No direction was given that a hall should be erected, and no penalty of any kind was established, whether by way of a reverter of the estate or in any other manner whatever, for the non-erection of the hall. In these circumstances, the authorities are uniform and very clear that no conditional estate is given, and the land can be held in fee-simple without performance of the consideration or purpose expressed. A very full treatment of this subject, and quite a full collection of the authorities, will be found in the opinion of this court in the case of Methodist Church v. Public Ground Co., 103 Pa. 608. Mr. Chief Justice Mercur, in delivering the opinion, said: “A mere recital in the deed that it is made upon a certain consideration will not raise a condition. Where a deed set forth that the estate thereby .conveyed was given to the commissioners of a county, in consideration of a county-seat’having been located on the premises, it was held that no condition was thereby created that the county-seat should be kept there: Harris v. Shaw, 13 Ill. 456. In Cook v. Trimble, 9 W. 15, it was held that the words ‘in consideration of §160 and a comfortable living to be given to the said grantor, his wife and his daughter, during their natural lives,’ by the vendee, might create a covenant, but not a condition. In Kerlin v. [634] Campbell, 3 Har. 500, a conveyance of land for a valuable consideration, in trust for the use of the inhabitants of the county of Delaware, to accommodate the public service of said county, was held not to be defeated on a sale and conveyance by the vendees, whereby the use for the public service ceased. Seebold v. Shitler, 10 Cas. 133, was the case of a conveyance to the commissioners of a county and their successors in office in fee-simple, for the purpose of erecting thereon a court-house, jail, and county offices. The county was subsequently divided, the seat of justice removed therefrom, the land sold and used for other purposes, and the proceeds thereof divided between the two counties. It was held that the title did not revert to the heirs of the original owners,” etc. Referring to the writing in the principal case, the Chief Justice proceeded to say: “No restraint was imposed on an alienation of the land. No construction of a reservoir, nor any work on the ground, was required to precede the right to demand a deed. No clause provided for a forfeiture or termination of the estate, in case the land ceased to be used as a reservoir. No right of re-entry was reserved by the grantor on any contingency. No technical word to create a condition was used. No other words were used equivalent thereto, or proper to create a condition. The authorities show that the recital of the consideration, and a statement of the purpose for which the land is to be used, are wholly insufficient to create a conditional estate.” All of the foregoing reflections are applicable to the present case, and they control its decision. We are clearly of opinion that no condition was annexed to the grant of the land which the borough was directed to make to the defendant, and the latter was guilty of no breach which would forfeit its estate. Therefore, if it were true that the borough had really imposed a condition when they made the grant, it would have been void for want of authority. But we are equally clear that the borough had no such purpose, so far as the lot No. 46 was concerned, and therefore they are not entitled to recover the land. Judgment reversed, and. record remitted, with directions .to the court, below to enter judgment in favor of the defendant for the land described in, the .writ, with costs.