Kilpatrick v. Mayor of Baltimore

Page, J., delivered the opinion of the Court. This is an action of ejectment brought by the appellant to recover from the appellee a strip of land running through Perkins’ Spring property in the city of Baltimore. The case was heard below upon an agreed statement of facts, and from the pro forma judgment thereupon rendered, this appeal is taken. On the 16th day of October, 1872, the Mayor and City Council of Baltimore passed a resolution authorizing and directing the City Comptroller to lease “for public use” all that portion of the Perkins Spring property located within the bounds of Ogston, George and Chatsworth streets, (except a portion theretofore leased) “at a rate not to exceed four dollars and a-half per front foot, for the building lots contained within said bounds,” with the right reserved “to purchase at six per cent, capitalized, at the convenience of the city.” The land described in this resolution was conveyed to the city in separate parcels, by two deeds dated respectively the eleventh day of January, 1873, and the fourteenth day of January of the same year. These deeds were submitted to and approved by the City Solicitor at the same time, that is to say, on the fourth day of January. By the deed of the fourteenth day of January, the grantors, first having set out the resolution above cited, lease to the city for ninety-nine years, renewable forever, with the right reserved to purchase the fee, all of the ground mentioned in the resolution, except so much thereof as constituted Clark street, which was granted by the deed of the eleventh of January, to the city “in fee simple.” Clark street, thus referred to, did not in fact exist; it was only the strip of land running from Ogston to Chatsworth street, sixty-feet wide, which the grantors by the deed of the 11th of January had, in consideration of one dollar, granted unto the “Mayor and City Council of Baltimore and its successors,” with an habendum clause as follows : “To have and to hold the parcel of ground above described, with the appurtenances aforesaid, unto the Mayor and City Council of Baltimore, aforesaid, and its successors — 192 — forever, as and for a street to be kept as a public highway.” Upon the execution and delivery of these deeds, the city took possession of the property, and since then has used it as a part of Perkins’ Spring Square. It has expended large sums of money in improving it, by the construction of expensive paved ways for persons using the square, and of a large mound of earth in the centre, ornamented and embellished with receptacles for flowers. No ordinance or resolution was ever passed by the Mayor and City Council authorizing the purchase of the land mentioned in the declaration as a public highway, or accepting it as such ; on the contrary, if it should be used as a street, such use would render the triangular parcel incapable of improvement as a public square, as provided by the ordinance or resolution of 1872. It is. agreed by the parties that the Court shall draw such inferences of law or fact from the “statement of facts and exhibits as may be right and proper, and all questions of law, as well as inferences that might have been made in the Court below, shall be •open for consideration and decision by this Court.” Under these circumstances the appellant contends that the deed of the nth of January, 1873, was made for the purpose of opening and forever keeping open Clark street, from Ogston to Chatsworth, as a public highway; that the words, “as and for a street to be kept as a public highway,” found in the habendum, create a condition, and as the city has failed to use the land in accordance with this condition, a forfeiture has occurred, and the title has reverted to the grantors. To sustain this contention, it obviously is necessary to determine that the words in themselves import a condition, or when taken in connection with the whole deed, that they show a clear and unmistakable intention on the part of the grantor to grant an estate on condition. Technical words are not absolutely essential to create a condition, nor on the other hand does their use necessarily raise one; such words may be controlled by the context of the instrument in which they are used, so that sometimes they work — 193 — a limitation and condition, and sometimes a covenant or a trust only. Paschal v. Passmore, 15 Pa. St. 295 ; Bacon v. Huntington, 14 Conn. 92 ; Lessee of Worman v. Teagardeu, 2 Ohio St. 380; Waters v. Bredin, 70 Pa. St. 235; Laberee v. Carlton, 53 Me. 211. Conditions subsequent are not favored in law “because on breach of such conditions there is a forfeiture, and the law is adverse to forfeitures.” 4 Kent, 130; Stanley v. Colt, 5 Wallace, 119. Therefore it is, that a condition will not be raised by implication, from a mere declaration in the deed, that the grant is made for a special and particular purpose without being coupled with words appropriate to make such a condition. Packard v. Ames, 16 Gray, 327; Bigelow v. Barr, 4 Ohio, 358. And as- a further consequence of this rule, it has always been held that “ in doubtful cases the disposition of the Courts is to construe language as creating a trust or covenant rather than a condition. See Earle v. Dawes, 3 Md. Ch. Rep. 230 ; Brantly's note and authorities there cited; Scovill v. McMahon, 62 Conn. 378, 26 At. R. 481 ; Greene v. O'Connor, 18 R. I. 49, 25, At. R. 692; Rawson v. Inhabitants, &c., 7 Allen, 128, 129. In the elaborate and able opinion delivered in the last cited case by Bigelow, C. the Court said: “If it be doubtful whether a clause in a deed be a covenant or condition, Courts of Law will always incline against the latter construction. Conditions are not to be raised readily by inference or argument.” * * “We believe there is no authoritative sanction for the doctrine that a deed is to be construed a grant on-a condition subsequent, solely for the reason that it contains a clause declaring the purpose for which it is intended the granted premises shall be used when such purpose will not enure specially to the benefit of the grantor and his assigns, but is in its nature general and public, and where there are no other words indicating an intent that the grant is to be void if the declared purpose is not fulfilled.” — 194 — These principles, which, so far as our researches have gone, seem to be of universal acceptance, are fully sustained by the decisions of this Court. Without undertaking to review the cases in which questions of this nature have been considered, we deem it quite sufficient to refer to the case of Newbold v. Glenn, 67 Md. 490, in which Judge Robinson, speaking for the Court, has succintly stated the whole law. There, in pursuance of an ordinance of the city the. trustees of the McDonogh Educational Fund and Institute, bought of Wolfarden, a lot of ground as a site for the proposed McDonogh Institute. The deed recited the ordinance and conveyed the property to the city “ in trust for the uses and purposes, and subject to the trusts, limitations, powers and provisions imposed, expressed and declared in and by the ordinance.” Subsequently the city sold the property to William W. Glenn, and bought another, on which the buildings were erected. One of the questions involved was whether the city acquired an indefeasible fee-simple title or only a fee on condition subsequent that the property was to be used as a site for the institute, and on failure so to use it, there was a reverter to the grantor. It was held, however, the words relied on to establish the condition were used only “ for showing the purpose for which the property was bought arid the character in which it was held, and not for the purpose of limiting the right of alienation.” It was also held there was nothing “to justify the inference that the property was sold or conveyed on condition that it was to be used as a site for the McDonogh Institute, and on failure thus to use it, the title was to revert to the vendor, * * * * and if such had been the intention, we must presume that it woidd have been expressed in clear and explicit terms, or in terms at least from which such intention could be fairly inferred.” The Court also distinguished that case from those of Reed, Howard et al. v. Stouffer, 56 Md. 236, and of the Second Univ. Soc. v. Dugan, 65 Md. 460, in which it was held “ on the express terms of the grant and the incapacity of the grantee to take — 195 — upon any other conditions ; that upon the failure to use the property for the purposes in consideration of which it was conveyed, the title reverted to the grantor.” Applying these principles to the case at bar, we cannot find anything in the deed of the eleventh of January to justify the inference that the property was conveyed oh condition that it was to be used as a public highway, and “on failure thus to use it, the title was to revert to the vendor.” In the granting clause the property is conveyed absolutely to the city, and in the hcibenclüm are the words, “to have and to hold, &c., as and for a street to be kept as a public highway.” These words do not exproprio vigore import a condition, nor are they so connected with the grant itself, as in any manner to qualify the general terms there employed; and there is no such language to be found in the deed, from which, when the context is taken into consideration, an intention to create a condition can be inferred. The lot was acquired by the city under the authority of a resolution, which directed a lease “for public use,” with the right reserved to purchase. It was part of the property included within what was called “the Perkins’ Spring property;’ ’ and inasmuch, as the whole of the property was immediately upon its acquisition, devoted by the city to the uses of a public square, it may reasonably be presumed that such was the “public use” had in view when the resolution was passed. Under these circumstances it is inconceivable, and it would require the plainest terms to enable us to determine that it was the intent of the deed ’that if the property was put to the public use contemplated by the resolution, and not to the use of a public street, the city should lose its title, and the property revert to the grantors. A glance at the plat, with which we have been furnished, will satisfy anyone that to use this parcel of land as a street would be profitless, both to the grantors and the public ; and it is agreed by the parties, that such use would render the property included in the resolution “incapable of improvement as a public square, as provided in the ordinance of 1872.” — 196 — (Decided March 27th, 1895.) We are disposed to place but little importance upon the fact, that the consideration in the deed is merely nominal. The whole of the Perkins’ Spring property (except a portion thereof) was transferred to the city by the same parties. The resolution authorized a lease at $4.50 per front foot of the building lots contained. Prior to the passage of the resolution Clarke street did not exist. It is obvious, that if Clarke street be taken into account, more front feet can be obtained than there would otherwise be possible, and thus a larger price could be realized for the entire property. The transfer to the city of the Spring property, although accomplished by two deeds, ought to be regarded as one transaction, and the real consideration for the conveyances must be taken to be the aggregate amounts received from the entire property. In view of all the facts of the case, and the terms of the deed, we think the words relied on to create the condition are quite as consistent with an intent to repose a confidence in the authorities of the city, that- they “would fulfil the purpose of the grant, so long as it was reasonable and practicable so to do, as they are with an intent to impose a condition which should compel it, on pain of forfeiture, to maintain the property as a public street, however inconvenient, impracticable or worthless it might become, either to the vendor or vendee.” “Language so equivocal cannot be construed as a condition subsequent, without disregarding the cardinal principle of real property * * * that conditions subsequent, which defeat an estate are not to be favored or raised by inference or implication.” Rawson v. Inhabitants, &c., supra, 131. From what we have said it follows that the judgment of the Court below must be affirmed. Judgment Affirmed.