Board v. Nevada School Dist.

• Court: Missouri Supreme Court
• Writing for the Court: DALTON
• Citation: Board v. Nevada School Dist., 251 S.W.2d 20, 363 Mo. 328 (Mo. 1952)
• Decision Date: 14 July 1952
• Docket Number: No. 42873,No. 1,42873,1
• Parties: BOARD et ux. v. NEVADA SCHOOL DIST

Page 20

251 S.W.2d 20

363 Mo. 328

BOARD et ux. v. NEVADA SCHOOL DIST.

No. 42873.

Supreme Court of Missouri, Division No. 1.

July 14, 1952.

Rehearing Denied Sept. 8, 1952.

J. B. Journey, Nevada, for appellants.

Lynn M. Ewing, Nevada, for respondent.

DALTON, Judge.

Action in ejectment to recover possession of one acre of described real estate in Vernon County and for other relief, with a cross action to determine title and declare the rights of the parties with reference to certain improvements. The cause was tried to the court without the aid of a jury and, from an adverse judgment, the plaintiffs have appealed.

The described real estate was conveyed to School District No. 119, in Vernon County, by A. S. Board and Permelia A. Board, his wife, by a general warranty deed dated December 11, 1883. The deed (hereinafter referred to as the Board deed) recited that the grantors granted, bargained and sold to the grantee the described real estate and further provided: 'It is expressly understood by this conveyance that the grantors herein convey the above for a school house site and whenever it is abandoned by the directors and ceases to be used for that purpose the title shall immediately revert to the grantors herein.'

Both plaintiffs and defendant claim under this deed as their common source of title. Plaintiffs claim under the reversionary clause and defendant as successor to the grantee. Plaintiffs alleged that the described real estate 'together with all improvements thereon has been abandoned for school purposes'; and that the school district had been dissolved and its territory attached to the defendant school district. Plaintiffs further alleged that they were the owners of the described real estate by the entirety in fee simple; that they were entitled to possession thereof; and that defendant had entered and was unlawfully withholding possession of the premises and had 'wrongfully removed and converted part of the building to their own use.' Plaintiffs asked for damages and to recover monthly rents and profits.

Defendant admitted the alleged provisions of the Board deed; and that School District No. 119 had been annexed to the defendant district, but it denied that the described real estate and improvements had been abandoned for school purposes, and it denied that plaintiffs had 'acquired title to the right to any reverter under said deed.' In a cross action defendant realleged the facts stated in its answer and further stated that, after the execution and delivery of the said deed, School District No. 119 erected a school building on the described land; that defendant may in the future determine that the said real estate and the improvements thereon are no longer needed for school purposes, but 'that as yet the cessation of such use and abandonment has not occurred.' Defendant alleged a dispute between the parties 'as to the right of the defendant to remove the school building erected on the land conveyed by the said A. S. Board and wife in the event your defendant does determine to cease using the land and building for school purposes and does determine to abandon same.' Other allegations need not be reviewed. Defendant claimed the right to the possession of the property and the right to remove the building and improvements from the described premises, or to sell the same, and alleged that plaintiffs had no right or title thereto. Declaratory and other relief was prayed.

Plaintiffs' evidence (together with certain admissions by defendant) tended to show that plaintiff Emard F. Board is a grandson of the grantors in the Board deed; that plaintiffs had obtained a warranty deed to the described property from other heirs at law of the grantors in the Board deed; that plaintiffs had been trying to get possession of the described property, but had been prevented from doing so; that the real estate had been conveyed to School District No. 119 'for a schoolhouse site'; that a school building, known as the 'Board School', had subsequently been erected thereon; that defendant accepted the annexation of School District No. 119 on October 13, 1949; that from and after May 1, 1950, no school had been conducted in the school house on the described premises; that the pupils in 'old District No. 119' had been transported to other buildings within the defendant school district; that a part of the school building on the described real estate, to wit, the back steps and back porch, had been removed by the defendant to another school in the defendant district; that the building had not been occupied, except for certain community or organization meetings; that the keys to the school building had been carried by the Nevada superintendent of schools; that defendant district was in possession of the real estate and improvements, to wit, a school building (32' X 24'), a coal house (10' x 12'), two toilets and one pump; that all the seats remained in the school building and the building was served by electricity; that 'when the annexation was completed School District No. 119 went out of existence under the law'; that plaintiffs had never been in possession of the described property; and that the rental value of the property was $25 per month. On request defendant admitted that 'the old District No. 119 became an integral part of the school district of Nevada subject to the same taxes as paid on other property in the district'; and that 'all of the assets of District No. 119 were turned over to the School District of Nevada.'

Defendant's evidence tended to show that the minutes of the Nevada School Board did not show any resolution for abandoning the property known as the 'Board School'; that the proposition voted on by District No. 119, in October 1949, was 'Shall District 119, Common School District 119, Vernon County, Missouri, annex itself to the Nevada School District'; that the matter of closing the 'Board School' had never been discussed with the school board of the defendant district; that the superintendent had recommended to the school board that the 'Board School' 'not be permanently closed at the present time'; that no steps had been taken to close it; that, merely as a temporary arrangement, the students residing within the limits of 'Old District 119' had been transported to other buildings in the enlarged district; that the superintendent of schools of the Nevada School District, who had the keys to the 'Board School' building, had visited the building some fifteen or twenty times since School District No. 119 had been annexed to the defendant district; that the superintendent 'made the arrangements to take the steps and part of the back porch to another school in this district'; that the building had been made available to the 4-H groups in that community at no charge; that no deed of conveyance had been executed conveying the described real estate to the defendant district; that the defendant district had 'tried to encourage the 4-H activities, the farm activities in that community, by making that building available'; that the defendant district had continued to carry insurance on the school building and had continued to furnish fuel for meetings when held; but that the support of the 4-H groups was not an official responsibility or on the educational program of the defendant district.

The trial court found the issues on plaintiffs' petition for the defendant and against the plaintiffs and found that there had been no abandonment of the premises for school purposes; and that plaintiffs were not the owners of the real estate and improvements and were not entitled to recover under the reversionary clause in the deed. The court further found that the real estate was acquired for a schoolhouse site; that there were no improvements on the property at that time; that the schoolhouse and improvements were made after the execution of the deed; and that, upon the annexation of School District No. 119 to the defendant district, all property and rights of every nature belonging to School District No. 119 passed to and became vested in the enlarged district by operation of law. The court further ordered that 'the plaintiffs' petition is dismissed at the cost of plaintiffs.'

On defendant's cross action, the court found the issues in favor of defendant and against plaintiffs and found in effect that the school building and improvements were made with the consent of the grantors in the Board deed; that by reason thereof the building and improvements placed upon the property by School District No. 119 were personal property and now belonged to the defendant district; that 'if and when defendant ceases to use the premises in question for a schoolhouse site and abandons the same, the defendant shall have the right, and now has the right, to cause the buildings and improvements to be removed from the land'; and that the 'plaintiffs have no right, title or interest in and to the improvements and buildings on the described real estate and do not own the improvements if the site be abandoned and no longer used for school purposes.'

As the cause was tried to the court without the aid of a jury, the procedure on appeal is governed by Section 510.310 (all references are to RSMo 1949, and V.A.M.S.), which provides that 'the appellate court shall review the case upon both the law and the evidence as in suits of an equitable nature. The judgment shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.'

This court has jurisdiction of this appeal since the judgment entered by the court expressly determined the title issue adversely to appellants and found that they were not the owners of the described real estate and improvements. State ex rel. Brown v. Hughes, 345 Mo. 958, 137 S.W.2d 544, 545. And see Cantrell v. City of Caruthersville, 359 Mo. 282, 221 S.W.2d 471, 479.

Appellants assign error on the findings...