Henry v. Etowah County

SOMEE.TILLE, J. The action is one of ejectment under the statute, instituted by the appellant, Henry, to recover a lot in the town of Gadsden, which he had conveyed by deed to Etowah county. The lot in controversy adjoins that upon which the court-house of the county is erected, and the deed recites that it is to be “ used by said county of Etowah as a public square for court-house purposes,” so long as the court-house remains where it then was. The conditions subsequent incorporated in the deed are, that the property shall revert back to the grantor, (1) whenever the county ceases to use the lot for courthouse purposes; and (2) whenever the court-house should be [540] removed from the adjoining lot, where it was then located and established. It is claimed that'the first of these conditions has been violated, by permitting the lot to be used for other than “court-house purposes,” and that a forfeiture has thereby accrued, entitling the plaintiff to recover for breach of condition subsequent. The alleged perversions of use are chiefly three: 1st, leaving a portion of the lot uninclosed by fencing ; 2d, allowing, by acquiescence, the town authorities of Gadsden to erect two hitching-posts for use by the public upon this uninclosed portion ; 3d, the erection of a structure for posting circus-bills, or pictures, which remained for about thirty days before removal. What is meant by the phrase “ court-house purposes,” within the intention of these parties, we need not attempt to define. The customs and usages of a particular State or locality might contribute largely in shaping such a definition. Some of these customs might also be matters so general, and of such common knowledge, as to be the subjects of judicial cognizance, without proof. However this may be, one point is very clear to our mind. No mere incidental and collateral use, to which the lot in question maybe temporarily devoted, which does not conflict or interfere with its use by the county for court-house purposes, can be construed to be a breach of the conditions of the deed. It is not said that the lot is to devoted solely and exclusively to court-house uses. The fact that it is denominated “ a public square ” rather lends color of construction to the contrary view. It is a settled rule, that such conditions are generally to be construed st/riotissioni juris, against the grantor in the deed creating them. The grantor evidently intended that the primary or principal uses, to which the property should be devoted, were those to which public squares around court-houses are usually dedicated. These uses may be periodical, and not incessant. Any collateral or secondary purpose, which does not interfere with these primary uses, can not be construed to be inhibited by the terms of the deed. It might be argued, with as much force, that allowing a political or religious meeting to be held upon the grounds would be a breach of the condition. The evidence shows that the county has never at any time ceased to use the lot for “ court-house purposes,” unless the facts above stated can be construed into such a perversion. The court properly charged the jury, that these incidental uses, under the evidence, constituted no ground of forfeiture. There are other reasons upon which we could base our conclusion, but these we need not discuss. Affirmed.