Wagner V. Wallowa County

Mr. Justice Burnett delivered the opinion of the court. A cognate question was before us in School District No. 21 of Wallowa County v. Wallowa County, 71 Or. — 460 — 337 (142 Pac. 320). in which it was decided that the conveyance from the plaintiff here to the school district, prior to any breach of the condition of the deed under which this defendant claims, was inoperative to confer title upon the grantee therein because the grantor had no estate at the time which he could convey. In the instant case the plaintiff proceeds upon the theory that his conveyance to the school district was void, and hence should be disregarded. This postulate is fallacious in a certain sense. The holding in the school district case was to the effect that upon the authority of Seeck v. Jakel, 71 Or. 35 (141 Pac. 211, L. R. A. 1915A, 679), ejectment is the proper remedy to be employed by the grantor of real property to recover the same for breach of a condition subsequent. The opinion goes on to state: “This remedy, however, does not inure to the one to whom the grantor in the original deed may afterward attempt to convey the premises either before or after breach of the condition. The reason is that by the first conveyance the whole estate went out of the grantor therein. He had nothing left to convey. True enough, there was a .possibility that some time the title might return to him; but until it does, through his assertion of his right arising from the breach and his actual recovery of the land, there is nothing upon which his conveyance to a stranger can operate. Because the grantor may waive his right to insist that the condition subsequent has been broken, his chose in action in the premises is classed as a personal privilege to be asserted only by himself or his heirs. It is not assignable, and, until he actually recovers the land as upon breach of the condition, his deed confers no right upon his subsequent grantee” — citing authorities. The effect of that decision must be limited to what was decided, namely, that, for want of an estate to convey, the so-called grantor could not pass title to — 461 — the property by the instrument in question there. It was not stated that the paper was utterly void for all purposes whatever, and hence entirely negligible. As we shall hereinafter show, it may operate for another purpose. 1. Counsel for the plaintiff contends with consummate skill in argument that the estate held by the defendant county under the deed to it from the plaintiff was subject to a conditional limitation, constituting a base, qualified, or determinable fee, and not merely an estate upon condition subsequent. The defendant joins issue on this contention and maintains precisely the opposite conclusion. The controversy is focused upon this language appearing in the deed under which the defendant claims : “And it is understood that this conveyance is made and accepted on condition that said described real estate is to be used for a site or portion of a site for a county high school, and buildings connected therewith, and for no other purpose; and, if not so used for such purpose, the title to said real estate shall revert to the grantors herein.” In Blanchard v. Detroit, Lansing & Lake Michigan R. R. Co., 31 Mich. 43 (18 Am. Rep. 142), it is said by Mr. Chief Justice Graves: “An estate upon condition is one which has a qualification annexed, by which, on the happening of a particular event, it may be created, enlarged, or destroyed. If set forth, the condition is express; and if it allows the estate to vest, and then to be defeated in consequence of nonobservance of the requirement, it is a condition subsequent” — citing authorities. In Austin v. Cambridgeport Parish, 21 Pick. (Mass.) 215, the plaintiff had conveyed to the defendant’s grantor— — 462 — “for the use and support of the first and all succeeding ministers, who shall he legally settled by a parish or religious society to preach in the meeting-house built by the corporation aforesaid, and all other meetinghouses which shall hereafter be built on the site where the meeting-house aforesaid stands.” The deed contained also this clause: “Provided always, and this grant is on this express condition, that the premises aforesaid shall forever henceforth be held by said corporation, or their assigns, for the use, benefit and support of the first and all succeeding ministers, who shall be settled by a parish or religious society, to preach in the meeting-house aforesaid, and all other meeting-houses which shall hereafter be built on the site where the meeting-house aforesaid stands, and for no other purpose whatever. And in default of the appropriation of the rents and profits thereof to that purpose, this deed shall be void, and the premises aforesaid shall be and remain in the grantors, and their heirs, as though this conveyance had never been executed.” Construing this clause of the deed, the court there said: “The terms used in this deed are those indicating, in the most direct and unequivocal manner, that the grantees were to take an estate upon condition subsequent.” Fall Creek Township v. Shuman, 55 Ind. App. 232 (103 N. E. 677), was a case depending upon the conveyance of land “containing about one-fourth of an acre, so long as the same is used for school purposes.” The court thus treated the question: “It is stated in Washburn on Real Property that the distinction between a condition subsequent and a conveyance with a limitation upon the title is technical, but clear. An example may be given by changing somewhat the language of the deed in controversy. If — 463 — the original grantor had stated in terms that the land was conveyed to the township to be used for school purposes, it would have been a condition subsequent, and, in order, to divest the township of title, there must have been a re-entry of the original grantor or his heirs. But the language in this deed, ‘so long as the same is used for school purposes,’ divests the title ipso facto upon the happening of that event, and appellee in this case, holding the legal title by conveyances from his grantors, is entitled to recover. ’ ’ In Pepin County v. Prindle, 61 Wis. 301 (21 N. W. 254), the deed of the land in question was given to the county by the defendant “upon the express condition and term that the said county of Pepin erect thereon within five years a courthouse for the use of said county and shall keep and maintain the same thereon for the space of ten years upon the express condition.” This was held to be a condition subsequent. The foregoing-are authorities cited by the plaintiff. He urges that the language of the deed makes the estate one upon conditional limitation operating to vest in the defendant something less than a fee-simple estate which automatically terminates at the time a certain thing happens. Most of the authorities which he cites, however, depend upon the particular ■ language used passing the property until an event happens, or as long as a use is maintained, or some such language. Such precedents are these: Board of Chosen Freeholders v. Buck, 79 N. J. Eq. 472 (82 Atl. 418), where the grant was for the purpose of building thereon public offices to hold so long as thus used and no longer; Universalist Society v. Boland, 155 Mass. 171 (29 N. E. 524, 15 L. R. A. 231), where the conveyance was to have and to hold so long as devoted to certain tenets of religious faith, otherwise to cease and vest in certain individuals; Aumiller v. Dash, 51 Wash. 520 (99 — 464 — Pac. 583), where the conveyance was for nse as a road and way for irrigation while so used and no longer. There are cases, indeed, which hold that language similar to that employed in the ease at bar amounts to a conditional limitation and not a condition subsequent; but the touchstone is found in the determination of whether the estate passed out of the grantor to be returned upon the happening of certain events or whether but part of the estate was separated from the owner. In the former instance the result is a condition subsequent, requiring some affirmative act of the grantor or those who represent him as heirs for the purpose of regaining the estate. In the latter, where less than the fee simple has gone from the grantor, it is denominated an estate upon conditional limitation, and contains within itself the elements of its own dissolution, so that it returns spontaneously to the grantor upon the happening of the event. Under a condition subsequent there remains in the grantor no estate whatever,' but only a chose in action which is personal to himself and cannot be granted to another. Section 7102, L. O. L., says: “A deed of quitclaim and release, of the form in common use, shall be sufficient to pass all the estate which the grantor could lawfully convey by a deed of bargain and sale.” Section 7103, L. O. L., states: “The term ‘heirs,’ or other words of inheritance, shall not be necessary to create or convey an estate in fee simple; and any conveyance of any real estate hereafter executed shall pass all the estate of the grantor, unless the intent to pass a less estate shall appear by express terms, or be necessarily implied in the terms of the grant.” — 465 — It is declared, in the condition of the deed that “this conveyance is made and accepted on condition”;,that is to say, the whole title of the grantor has passed from him and has been accepted by the grantee. Nothing is reserved. Under these sections of our Code already quoted, the language used operates to pass all the estate of the grantor, unless the intent to pass a less estate shall appear by express terms or necessarily be implied by the terms of the grant. He, himself, used the words “the conveyance is made.” It does not necessarily follow that, because a condition is appended, there passed less than all the estate which he had. The language of Mr. Chief Justice Graves in Blanchard v. Detroit, Lansing & Lake Michigan R. R. Co., 31 Mich. 43 (18 Am. Rep. 142), is peculiarly applicable to the instant case: “Where, however, the terms are distinctly and plainly terms of condition, where the whole provision precisely satisfies the requirements of the definition, and where the transaction has nothing in its nature to create any incongruity, there is no room for refinement,' and no ground for refusing to assign to the subject its predetermined legal character. In such a case the law attaches to the act and ascribes to it a definite significance, and the parties cannot be heard to say, where there is no imposition, no fraud, no mistake, that although they deliberately make a condition, and nothing but a condition, they yet meant that it should be exactly as a covenant.” So here it was competent for the grantor to employ either a condition or a limitation to effectuate his design. The granting clause, taken alone, operates to convey a fee-simple title. In the very words of the conveyance it passes “all our right, title and interest in and to the following described parcel of real estate.” Indeed, such must have been the contemplation of the — 466 — parties, for the instrument in question provides that “the title to said real estate shall revert to the grantors herein” upon condition broken. If it had not passed from them, it could not'well revert to them. As part of the conveyance, however, the grantor appended what he denominated a condition, and we cannot impart to his words a different signification. He chose to annex a condition and not a limitation; hence, we must respect his choice and hold that the clause in question is a condition subsequent. 2. Conceding without deciding that the failure to maintain a county high school in the building which it had erected upon the premises, compelled though it was by the exercise of legislative authority, already mentioned, constituted a breach of the condition, it remains to consider the effect to .be given to the deed from the plaintiff to the school district. As held in School District No. 21 of Wallowa County v. Wallowa County, 71 Or. 337 (142 Pac. 320), this instrument did not operate to convey anything to the grantee named because the .grantor had then no estate which he could convey, especially as there had been no breach of the condition. On this point the rule is thus laid down in Section 207, Tiedeman, Real Property (3 ed.): ‘ ‘ Conditions are reserved only to the grantor and his heirs. They cannot be reserved for the benefit of third persons. As a general rule, therefore, only the grantor and his heirs have a right to enter upon condition broken, and they lose their rights if they should convey away the reversion in them. The right of entry is not an estate, not even a possibility, of reverter; it is simply a chose in action.” Almost identical language is used in 1 Tiffany, The Modern Law of Real Property, Section 75 of which says: — 467 — “The right to take advantage of a condition subsequent belongs, at common law, exclusively to the grantor or lessor and his heirs, and he cannot reserve such right to others, even by express stipulation. Nor can the right to enforce a forfeiture, or, as it is usually called, the right of re-entry, be, at common law, assigned or transferred by the grantor to a third person before entry for the breach; this being in conformity with the common-law rule that ‘nothing in action, entry, or re-entry can be granted over.’ These restrictions as to the persons able to take advantage of a breach and the inability to assign the right have been generally recognized in this country, and not only will an attempted assignment of the right of re-entry be void, but it will have the effect of destroying the grantor’s right to enforce the condition, which is thereafter in effect nonexistent.” We find this statement in 2 Reeves, Real Property, Section 721: “An express condition (or condition in deed) cannot be validity reserved, at common law, to anyone except the grantor and his heirs; and neither it nor any right to enforce a forfeiture for its infraction can ordinarily be assigned, or even devised away, unless the authority so to deal with it has been created by statute. Being incident to a particular estate, as if, for example, an estate for years or life were granted away on condition by the owner of the fee, if the latter attempted to assign his reversion and the right to enter for a breach, the condition was thereby destroyed entirely, for the assignor could not enforce it because he had parted with it, and yet the assignee acquired nothing in it that he could enforce, because it was not assignable.” Substantially the same language is used in Section 954 of 2 Washburn, Real Property (6 ed.). Indeed, the text-writers are in unison on this point: Berenbroick v. St. Luke’s Hospital, 23 App. Div. 339 (48 — 468 — N. Y. Supp. 363); Board of Education v. Baker, 124 Tenn. 39 (134 S. W. 863); Hooper v. Cummings, 45 Me. 359; Underhill v. Saratoga & Wash. R. R. Co., 20 Barb. (N. Y.) 455; Tinkham v. Erie Ry. Co., 53 Barb. (N. Y.) 393; Rice v. Boston etc. R. Co., 12 Allen (Mass.), 141; Attorney General v. Merrimack Mfg. Co., 14 Gray (Mass.), 586. 3, 4. The effect of the deed from the plaintiff to the school district was a renunciation by the plaintiff of his potential future right to re-enter the land for condition broken. It was the same as though he had said to the school district: “I do not care to enforce a possible forfeiture at any time. I wash my hands of the whole transaction; but, if you are able to recover the land, you have my permission.” As we have seen under the authorities, the plaintiff had nothing at the time which he could convey, because the estate had passed from him entirely, and there had been no breach of the condition upon which he could re-enter; and while in the aspect of affirmatively conveying an estate he accomplished nothing, yet as the waiver of the condition for once and all it has the effect to prevent his ever asserting a right of entry. 5. It is urged that only parties and privies are bound by an estoppel, but in this instance there is a privity of estate in the land which will give effect to the school district deed in favor of the defendant here as an obstacle to prevent the grantor from enforcing the condition subsequent which he has already waived. We do not find it necessary to consider whether the legislative action mentioned would operate to destroy the condition or whether the use by the county of the premises for the four years would satisfy the condition of — 469 — the deed, in the absence of any language therein compelling the defendant to maintain such a school there. As stated, the defendant expended $25,000 of the public funds in establishing the county high school, and without its fault, but in obedience to the mandate of the people in their legislative capacity, it suspended its support of the school. These circumstances present a suitable case for the application of the rule of strict construction of a condition which would work out a forfeiture, and the courts should hesitate long and apply the law strictly where the result would be to take $25,000 worth of property paid for by public funds and bestow it upon any individual for an alleged breach of condition. Something was said at the argument about what the plaintiff would do with the property if he regained the title as a result of this litigation; but we cannot give heed to such a statement. It is outside the record, and we must decide the case as it is laid in the pleadings. Moreover, as we have seen, he waived this right personal to himself and attempted to bestow it upon another. Failing to thus work out his purpose, he attempts to resume what he has laid down and to enforce a harsh forfeiture. Having once waived it, he can never take it up again. The conclusion is that the judgment of the Circuit Court must be affirmed. Aeeirmed. Rehearing Denied.