Calhoun v. Hays
| Decision Date | 27 September 1944 |
| Docket Number | 912 |
| Citation | 39 A.2d 307,155 Pa.Super. 519 |
| Parties | Calhoun et al., Appellants, v. Hays et al |
| Court | Pennsylvania Superior Court |
Argued April 28, 1944.
Appeal, No. 212, April T., 1944, from judgment of C. P Allegheny Co., Oct. T., 1942, No. 835, in case of David Reid Calhoun et al. v. Abram P. Hays et al.
Ejectment. Before Soffel, J., without a jury.
Findings and judgment for defendants. Plaintiffs appealed.
M M. Edmundson, for appellants.
H A. Robinson, with him Ralph L. Smith, for appellees.
OPINION
This was an action of ejectment tried in the court below without a jury, under the Act of April 22, 1874, P. L. 109, as amended by the Act of July 10, 1935, P. L. 640.
The facts, as found by the court -- and they are sustained by the evidence -- may be summarized as follows:
(1) David K. Calhoun, the common source of title of both parties, by deed from Robert Hays, dated July 17, 1867 and duly recorded, acquired title, inter alia, to the one-half acre of land involved in this action.
(2) By deed dated July 25, 1882 and duly recorded, David K. Calhoun and wife granted and conveyed this half-acre lot to the Board of School Directors of Mifflin Township, its successors in office and assigns, "to be used for the establishment and maintenance of the common schools of said district only and for no other purpose or purposes whatever, said lot to revert to the grantors, their heirs and assigns, as soon as said parties of the second part or their successors in office cease to use it for said purpose." [1]
(3) The said David K. Calhoun by various deeds dated respectively April 17, 1891, May 21, 1891, December 15, 1891 and January 3, 1893, and duly recorded, granted and conveyed to W. Seward B. Hays, in fee, the land and acreage immediately surrounding the said 'school lot.'
(4) Under date of March 19, 1895 David K. Calhoun and his wife, being unable to convey said school lot by reason of their prior deed, entered into an agreement under seal with the said W. Seward B. Hays, which recited the above mentioned deed to the School District of Mifflin Township and the provision that the therein described real estate should revert to the said David K. Calhoun and wife whenever the property should cease to be used for school purposes, the school building to become their property, but subject to the payment of a sum of money to be agreed upon by arbitrators [see note 1], and further recited, "Whereas said authorities of the school district of Mifflin Township are about to discontinue the use of said described property for school purposes"; and it was then covenanted and agreed: First: That the said David K. Calhoun and Alice P. Calhoun, his wife, will grant and convey unto said W. Seward B. Hays by good and sufficient deed, all the foregoing described real estate, free of encumbrances, whenever they may be requested to do it -- provided, however, they shall not be required to make and execute such conveyance until such time as the aforesaid Mifflin Township school district shall discontinue the use of said property for school purposes -- the consideration for said conveyance to be the sum of three hundred dollars to them paid. Second: The said W. Seward B. Hays, the second party, covenants and agrees to pay the said first parties the sum of three hundred dollars upon the execution and delivery ofthe aforesaid deed.
The agreement also contained the following receipt duly signed by D. K. Calhoun and Alice P. Calhoun:
"Received the day of the date of the above indenture of the above named W. Seward B. Hays the sum of three hundred dollars ($ 300) being the consideration money in full when a good and sufficient deed is made, sealed and delivered to the party of the second part."
An inspection of the original paper shows that the receipt was signed by the same persons who executed the agreement as first parties.
The agreement was acknowledged on June 7, 1895, with a separate married woman's acknowledgment, and was duly recorded on June 13, 1895.
(5) The said David K. Calhoun died April 6, 1904 and the plaintiffs claim title to said 'school lot' as his devisees. The said W. Seward B. Hays died October 13, 1924 and the defendants claim an equitable title to said lot as his devisees.
(6) Subsequent to the execution of said agreement of March 19, 1895 the said W. Seward B. Hays, and, after his death, the defendants, used in their business of buying and selling coal and builders' supplies such portions of said school lot as were not in the actual use of the school board for school purposes.
(7) Upon the organization of the Borough of West Homestead, the school district of said borough succeeded to the rights of the school district of Mifflin Township under said above recited deed -- see finding (2) above.
(8) By resolution dated September 3, 1941, and adopted in accordance with the Act of May 18, 1911, P. L. 309, Art. VI, sec. 603, the said school district of the Borough of West Homestead formally abandoned said school lot for school purposes.
(9) That in pursuance of said resolution and in reliance upon the executory contract of sale made by the said David K. Calhoun with the said W. Seward B. Hays, said school district of West Homestead Borough by quit-claim deed, dated September 6, 1941 and duly recorded, quit-claimed all its interest in said lot to the defendants herein.
(10) That in reliance upon said executory contract and the quit-claim deed of the school district, the defendants entered into possession of said 'school lot' and erected a building thereon for use in their business.
(11) At or about the same time the defendants requested a deed from the plaintiffs for the legal title to said lot and offered to pay to the plaintiffs the sum of $ 300 in accordance with the terms of said executory contract of sale, but the plaintiffs refused to execute and deliver such deed and refused to receive the consideration therefor, and filed this action in ejectment for the possession of said 'school lot.'
While not specifically found as a distinct finding of fact, the court in its discussion stated that the school district continued to hold said lot for school purposes and did not formally give up possession until 1941, although the property ceased to be used for common school purposes in February, 1927. That it exercised ownership over the lot until it formally abandoned the same pursuant to section 603 of the School Code (Act of May 18, 1911, P. L. 309) is seen from the testimony of plaintiffs' witness, Rev. J. B. Westley, pastor of the First Baptist Church of West Homestead, to the effect that by permission of the School Board his church occupied the school building on the lot for church purposes on September 26, 1931 and thereafter, until the school board abandoned the lot. Under the law, as declared in the above section of the School Code, no land acquired by or conveyed to any school district for school purposes shall be considered as abandoned until the board of school directors shall pass by a vote of the majority of its members a resolution declaring it to be the intention of such district to vacate and abandon the same, whereupon all right, title and interest of such district in such premises shall be fully terminated. Accordingly the interest of said school district in said lot did not cease until its resolution of September 3, 1941 was adopted.
The court held that the agreement of March 19, 1895 was not an option, but an executory contract of sale; that under it the said W. Seward B. Hays acquired an equitable title and right of possession to said lot, which passed to the defendants as devisees under his will.
In the court's clear and comprehensive discussion it laid down, inter alia, the following principles, citing the authorities supporting them:
A possibility of reverter is any reversionary interest which is subject to a condition precedent. Restatement -- Property, sec. 154 (3).
The owner of any reversionary interest in land has the power by an otherwise effective conveyance inter vivos, to transfer his interest or any part thereof: Restatement -- Property, sec. 159(1).
Where an estate is conveyed in fee for a specified purpose, "and no other," the fee is a base fee determinable upon the cessation of the use of the property for that purpose. The possibility of reverter is capable of transmission to his grantees and will pass to them under a conveyance of the reversion: Slegel v. Lauer, 148 Pa. 236, 23 A. 996.
Where a person conveys to a religious society, with reversion to his heirs upon the grantee ceasing to use the property for religious purposes, upon the happening of such event the reversion passes to the grantor's heirs at law and not to the devisees under his will: Hanby v. Bailey, 51 Pa.Super. 244.
Such reversion,...
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