Soria v. Harrison County

Smith, J., delivered the opinion of the court. In 1845 appellee, being in possession of the land in controversy and having built thereon a courthouse and jail, obtained from W. H. Tegarden the following deed to his interest therein: “This indenture, made and entered into this thirty-first day of March, A. T>. 1845, between William 31. Tegarden, of the first part, and the board of police of Harrison county,, state of Mississippi, of the second part, witnesseth: That the said Tegarden, for and in consideration of the sum of one dollar in hand paid by the said board of police, and in further consideration that the land hereinafter described shall be kept by said board of police for the use of a courthouse and jail for the benefit of said county, hath bargained and sold, and by these presents does hereby •grant, bargain, sell, and convey, to the said board of police, in trust as aforesaid, all his right, title, and interest in and to the north half of square two hundred and thirty-two (232), in Mississippi (City), to have and to hold the same to the said board of police, and their successors in office, for the use of said county as aforesaid, for and from me, my heirs, and all persons claiming through, by, or under me. In testimony whereof, the said Tegarden hath hereunto set his hand and seal the day and date first above written. W. H. Tegarden. [Seal.]” Appellee continued to use and occupy this land maintaining thereon a courthouse and jail, until the year 1903, when it removed its courthouse and jail therefrom, ceased to use the land for any county purpose, and offered same for sale. This sale [114] was prevented by appellant asserting title by reversion under the deed from W. H. Tegarden to a four-fifths undivided interest therein. Thereupon appellee filed its bill of complaint in the court below, praying that it be decreed to be the owner of the land and that appellant be enjoined from asserting any claim thereto.- Appellant filed an answer and cross-bill, alleging in effect that the deed from Tegarden conveyed the land to appel-lee upon condition that it be used for a courthouse and jail, and that upon its ceasing to be so used the title would revert to the said Tegarden. She further alleged that she was the owner of this reversion, alleged to be an undivided four-fifths interest under a deed to the land in controversy, executed, and delivered to her by Tegarden in 1876, and prayed for a partition. From a decree dismissing the cross-bill, decreeing that appellee was the owner of the land, and enjoining appellant from asserting any claim thereto, this appeal is taken. This deed does not contain any language such as is usually employed to create a condition subsequent, the breach of which would cause the land to revert to the grantor, such as an express provision to that effect, or apt technical words, such as “provided,” “so long as,” “until,” etc. In order that a condition subsequent may be created, the breach of which will cause the land conveyed to revert to' the grantor, it must clearly appear that such was the grantor’s intention. Thornton v. Natchez, 88 Miss. 1, 41 South. 498. See also Thornton v. Natchez, 129 Fed. 84; Thornton v. Natchez, 197 U. S. 620, and Thornton v. Natchez, 212 U. S. 559. The words in this deed, “that the land hereinafter described shall be kept by said board of police for the use of a courthouse and jail for the benefit of said county,” and the words “to have and to hold the same * * * for tire use of said county as aforesaid,” are quite as consistent with an intent to repose a trust and confidence as they are with an intent to impose a condition which would compel the county, .on pain of forfeiture, to maintain on the land for all time a [115] courthouse and. jail. Since under the maxim "Verba. fortius accipiuntur contra proferentem,” we must construe the words of this deed most strongly against the grantor, it follows that no condition subsequent, the breach of which would cause a reversion, was thereby created. The foregoing views are supported by many authorities, among which is First M. E. Church v. Old Columbia Public Grant Company, 103 Pa. 608, approved by the supreme court of the United States in Stewart v. Easton, 170 U. S. 401, 18 Sup. Ct. 657, 42 L. Ed. 1084, wherein the court said: “Whatever words are relied on as creating a condition must not only be such as of themselves would create a condition, but must be so connected with the grant as to qualify or restrain it. Laberee v. Carleton, 53 Me. 211. It was said by Mr. Chief Justice Bigelow in Packard v. Ames, 16 Gray (Mass), 327; ‘We know of no authority by which a grant declared to be for a special purpose, without other words, can be held to be a condition. On the contrary it has always been held that such a grant does not convey a conditional estate, unless coupled with a clause for the payment of money or the doing of some act by the grantee, on which the grant is clearly made to depend.’ To make the estate conditional the words must clearly show such intent. Cook v. Trimble, 9 Watts (Pa.), 15. Turning to the writing executed by Wright, we see that he absolutely and unconditionally covenanted to convey the premises in fee simple, clear of all incumbrances, to the vendees, their heirs or assigns^ whenever requested by them. 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 con [116] sideration and a statement of the purpose for which, the land is to be used are wholly insufficient to create a conditional estate.” Affirmed.