Berger Et Ux. v. Santa F? Coll..

• Decision Date: 24 April 1923
• Docket Number: No. 2565.,2565.
• Citation: 28 N.M. 545,215 P. 825
• Parties: BERGER ET UX.v.SANTA FÉ COLLEGE.
• Court: New Mexico Supreme Court

28 N.M. 545

215 P. 825

BERGER ET UX.

v.SANTA FÉ COLLEGE.

No. 2565.

Supreme Court of New Mexico.

April 24, 1923.

Syllabus by the Court.

Where, in a condition subsequent in a deed, misuser of the premises is specified as ground of forfeiture and reverter, mere nonuser of the premises furnishes no basis for forfeiture.

Appeal from District Court, Santa Fé County; Holloman, Judge.

Action by William M. Berger and wife against Santa Fé College. From a judgment for plaintiffs, defendant appeals. Reversed and remanded, with instructions.

Where in a condition subsequent in a deed, misuser of the premises is specified as ground of forfeiture and reverter, mere nonuser of the premises furnishes no basis for forfeiture.

Frank W. Clancy, of Santa Fé, for appellant.

George W. Prichard, of Santa Fé, for appellees.

PARKER, C. J.

In 1882 the plaintiff conveyed the premises in controversy to the University of New Mexico in consideration of $1 and the “cause of Christian education.” Following the description of the property conveyed the deed provided:

“In trust, to be used and maintained by said University of New Mexico as a Christian educational institution of learning, and none other, and should any other use or disposition of said premises or any portion thereof be permitted, the same premises, * * * shall revert to the said parties of the first part, * * * the exclusive use of said premises for such purposes being a condition upon which this conveyance is made and agreed to by the said party of the second part and their successors in accepting the trust created by this deed.

And the said party of the second part hereby expressly agrees * * * that the premises shall be used for the use and purposes of establishing and maintaining a Christian educational institution of learning only, and that on any other use or disposition being made of the same, * * * said premises * * * shall revert to * * * the parties of the first part and their heirs.”

The habendum clause provided that the premises were held “conditioned that the conditions hereinbefore expressed are established and maintained.”

Counsel for both appellant and appellees treat the language above quoted as constituting a condition subsequent, and it will be so treated by us. The property was afterwards mortgaged by the University of New Mexico, which mortgage was subsequently foreclosed, and the appellant, Santa Fé College, is the present holder of the title. On April 18, 1914, the appellees brought suit to establish a forfeiture and consequent reverter to them of the title to the property by reason of a violation of the condition in the deed above set out. They alleged in the complaint the condition in the deed to the effect that the property was conveyed to the University of New Mexico “in trust to be used and maintained by it, or its successors in interest, as a Christian educational institution of learning, and for no other purpose, with the condition in said conveyance that should said property be used for any other purpose than for a Christian educational institution, or any other disposition be made of the same, the said premises, together with all of the improvements thereon should revert to the plaintiffs, or their heirs,” and that the said University of New Mexico “agreed at the time aforesaid that, on any other use or disposition being made of the same or any part thereof, said premises with all of its improvements should revert to and become the property of the plaintiffs, said conditions being contained in said conveyance.” They further alleged that neither the University of New Mexico nor the Santa Fé College had, since April 25, 1904, used, occupied, or maintained said premises for a Christian Educational institution of learning, and that each of said corporations has wholly, since said date, failed to comply with the conditions contained in the deed of conveyance. There was another party defendant in the cause who held under a tax title for taxes levied in 1904. In pleading the facts which it was deemed necessary in order to avoid the tax title, the appellees pleaded that the premises had never been leased to any one for pecuniary profit, and that therefore the premises were not subject to taxation, they being used for benevolent, educational, and religious purposes.

The answer filed is devoted largely to showing that the premises were not subject to taxation, and that therefore the tax title was void, and likewise alleges that no use of the premises had been made contrary to the terms of the condition in the deed, and denied any abandonment of the property. The case went to trial before the court, and was a triangular controversy, both the appellees and appellant combining against the holder of the tax title. At the trial the holder of the tax title offered to show the leasing of the premises to the school board of Santa Fé for a period of years between 1893 and 1899. Objection was made on the part of both appellees and appellant to this showing as against the holder of the tax title upon the ground that the proof was not within the issues in the case. Thereafter, however, during the trial, both the appellees and appellant seemed to abandon this objection, and the appellant, at least, proceeded to cross-examine one of the appellees, and to show by him...