Clarke v. Inhabitants of Brookfield

• Decision Date: 30 April 1884
• Citation: 81 Mo. 503
• Parties: CLARKE, Appellant, v. THE INHABITANTS OF THE TOWN OF BROOKFIELD.
• Court: Missouri Supreme Court

81 Mo. 503

CLARKE, Appellant,

v.THE INHABITANTS OF THE TOWN OF BROOKFIELD.

Supreme Court of Missouri.

April Term, 1884.

Appeal from Linn Circuit Court.--HON. G. D. BURGESS, Judge.

REVERSED.

Huston & Brownlee for appellant.

The terms of the deed create in form a valid condition subsequent. It declares a forfeiture and reverter. Gilbert v. Peteler, 38 N. Y. 168; Lowe v. Hyde, 39 Wis. 345; Hayden v. Sloughter, 5 Pick. 531; 2 Washburn on Real Prop., p. 3. The condition was not impossible at the time it was created. The impossibility to discharge a condition must be a physical one. 1 Swift, 93; 1 Hilliard on Real Prop., 309, note. The condition has not become impossible since its creation by the act of God or the grantor, nor has the condition been waived. The grantee cannot hold under the deed and at the same time repudiate it. Parker v. Lincoln, 12 Mass. 16; Garret v. Scouten, 3 Den. 334; Cross v. Carson, 8 Black 138; 1 Hilliard on Real Prop., 379. The grantor could impose his own conditions on the grant. The object expressed in the condition is a municipal one. Chambers v. St. Louis, 29 Mo. 572; Ketchum v. Buffalo, 14 N. Y. 356; Allen v. Taunton, 19 Pick. 488; Hardy v. Waltham, 3 Cush. 163; Dillon on Munic. Corp., § 432; Gen. St. 1865, p. 240. The power to provide a suitable town house is necessarily implied from the fundamental duties of a municipality. Beaver Dam v. Frings, 17 Wis. 409; French v. Quincy, 3 Allen 9; Rayden v. Stoughton, 5 Pick. 528; Allen v. Taunton, 19 Pick. 488; Stetson v. Kempton, 13 Mass. 278. The evidence showed that the grantor owned a costly hotel across the street from the land in question, and this fact was no doubt partly operative in inducing the conveyance by him to the city.H. Lander for respondent.

The clause in question in the deed from Clarke to the city, was not a condition subsequent. Rawson v. Uxbridge, 7 Allen 127; 2 Willard on Real Prop., p. 378; Bacon's Abridgment, Title “Conveyances;” Coke Litt., 203 a. b., 205 b.; 4 Kent's Com., pp. 229, 232; 2 Washburn Real Prop., p. 3; Shep. Touch., 123; Parish v. Whiting, 3 Gray 516; Laberee v. Carlton, 53 Me. 213. But conceding the clause in the deed to be a condition subsequent, it is void because the town had no power to erect the building mentioned therein. St. Louis v. Clemens, 43 Mo. 404; 1 Dillon Munic. Corp., § 55; Ruggles v. St. Louis, 43 Mo. 375; Ketchum v. Buffalo, 14 N. Y. 356. As between natural persons the acceptance of a deed with a condition binds the grantee as to the condition. Newell v. Hill, 2 Met. 180; Goodwin v. Gilbert, 9 Mass. 570; Nugent v. Riley, 1 Met. 117. But municipal corporations possess but limited powers to purchase, hold, use and dispose of real estate, and can so take, hold and dispose of such property only in the manner named in the charter. 2 Dillon Munic. Corp., (3 Ed.) §§ 562, 565; Ketchum v. Buffalo, 14 N. Y. 356, 360; Reynolds v. Stark Co., 5 Ohio 204. The town could only bind itself within the limits of its charter powers by ordinance in conformity with its charter. Leach v. Cargill, 60 Mo. 317. And the town never assented to any condition in the deed, and is not, therefore, bound by it. Thompson v. Boonville, 61 Mo. 282; 1 Dillon Munic. Corp., (3 Ed.) § 455. The clause in the deed in question is void as tending to abridge and surrender the governmental powers of the town trustees. Mathews v. Alexandria, 60 Mo. 119; Gale v. Kalamazoo, 23 Mich. 344; Melhan v. Sharp, 27 N. Y. 622; Webb v. Albertson, 4 Barb. 51; Palmer v. Plank Road Co., 11 N. Y. 376; 4 Kent Com., (11 Ed.) p. 142.

MARTIN, C.

This was an action of ejectment to recover possession of two lots of land in the town of Brookfield, which the plaintiff had conveyed to defendant, but which he claimed had reverted to him for breach of condition in the deed of conveyance.

It appears in evidence that on the 21st of October, 1871, the board of trustees adopted an ordinance which provided “for the borrowing of $30,000 on bonds for the purpose of constructing an engine house and hall for the use and improvement of the town, and to purchase an engine and hose cart, hose and hook and ladders, and construct not less than three cisterns for the supply of the town with water for extinguishing fire.” It was also ordered “that a committee be appointed to inquire the different prices of the different town lots for sale for the erection of a town hall.” The committee appointed for that purpose reported four parcels of property as suitable for the building, along with the prices of each parcel. The plaintiff's lots were included in the report at the price of $750. The minutes recite that, on motion of A. K. Lane, the plaintiff's proposition was accepted, and that the auditor was instructed to issue an order in favor of plaintiff in the sum of $750. What the plaintiff's proposition was, does not expressly appear. But afterwards, on the 2nd of November, 1871, the board accepted a deed from the plaintiff for the lots in controversy, which contained the statutory covenants of grant, bargain and sale, as well as the covenant of warranty. It recited a consideration of $750, “““and other considerations herein named.”

Immediately following a description of the lots and preceding the habendum clause is this condition, which gives rise to this suit. “In consideration of the following object and purpose, to-wit: and no other; the erecting thereon a suitable building for public purposes, and the improvement of said town, embracing suitable room for fire engine, hose, and apparatus for extinguishing fires, a public hall, and such other rooms in said building as may be deemed expedient for the public good by the board of trustees of said town. It is expressly understood and intended that said land herein described reverts to said Clark or his heirs, unless said building is constructed thereon within five years.” On the next day, November 3, 1871, an injunction proceeding was commenced against the board of trustees for the purpose of restraining them from borrowing the funds, issuing the bonds, or in any manner carrying out the provisions of the ordinance. Due service of the suit was had. On the 6th of November, 1871, the board passed a resolution employing additional counsel to assist the city attorney in defense of the suit, and instructing the attorneys to take a change of venue from the court of common pleas in which the proceeding was instituted.

On the 9th of November, 1872, the board appointed a committee to confer with the parties who brought the suit in the the capacity of tax-payers, and submit to them a proposition, that the indebtedness to be incurred under the ordinance would be reduced to $15,000, if they would withdraw their suit. The committee after conference, reported that they would do nothing. Upon reception of this report the trustees on the 11th of May, 1872, repealed the ordinance providing for the issue of bonds. After this repeal of the ordinance, the injunction suit was dismissed. It does not appear that any trial of the issues contained in it took place.

It also appears in evidence that the town of Brookfield from 1871 to 1876 had no more money in its treasury than was sufficient to pay current expenses, and the interest on its outstanding indebtedness; and that its warrants for money were generally under par value for want of funds in the treasury. Evidence was produced by plaintiff tending to prove that the lots at the time of the conveyance were worth from $1,000 to $1,500. Evidence of an adverse character was produced by defendant tending to depreciate their value. It was admitted at the trial that defendant had not erected any town hall or improvements of any kind on the lots; that defendant was in possession having enclosed them with a fence, and that plaintiff, before suit, had made entry on the lots claiming them for condition broken. It was also admitted that at the time of the conveyance the plaintiff owned a large brick hotel, opposite the lots conveyed, worth $25,000, besides other valuable real estate in the vicinity; that Brookfield was a town containing 2,500 or 3,000 inhabitants; that it has no public buildings for meetings of its board of trustees, for fire apparatus, or for keeping its records, and that since the conveyance, it has been paying from $150 to $200 annually for the rent of rooms for such purposes.

The trial was before the court without a jury. No instructions were asked or given. The court found the issues for the defendant and rendered judgment accordingly.

I have not deemed it necessary to recite the various defenses and pleas, some of which there was no evidence to support. It is sufficient, for the purposes of this appeal, to say that the pleadings for defendant were broad enough to admit the foregoing evidence, and that it is entitled to whatever advantage or benefit the evidence can afford it, either in law or in equity. The plaintiff's case was sufficiently put in issue by the answer in its various defenses. It also contained a prayer for relief from the supposed forfeiture, which was supported only by the evidence recited. The motion of plaintiff to set aside the finding and judgment of the court, alleges that upon the evidence judgment should have been rendered for plaintiff, and that the finding for defendant is against the law and evidence. The only point for us to consider is, whether the plaintiff, upon this evidence, could maintain his action of ejectment.

The form and import of the disputed clause in this deed place it within the well known classification of conditions subsequent. The condition of reverter is not left to be inferred from the use of certain words indicating further contingencies. The clause terminates with language expressly declaring a reverter. “It is expressly understood, and intended that said land herein described reverts to said Clarke or his heirs, unless said building is constructed thereon within five years.” Neither is it objectionable on the ground of any possible...