City of Portland v. Terwilliger

• Decision Date: 15 February 1888
• Citation: 16 Or. 465,19 P. 90
• Parties: CITY OF PORTLAND v. TERWILLIGER.
• Court: Oregon Supreme Court

19 P. 90

16 Or. 465

CITY OF PORTLAND v. TERWILLIGER.

Supreme Court of Oregon

February 15, 1888

Appeal from circuit court, Multnomah county.

Ejectment by the city of Portland against James Terwilliger, to recover a tract of land known as the "Old City Cemetery." Judgment for defendant, and plaintiff appeals.

W.H Adams, R. & E.B. Williams, and A.H. Tanner, for appellant.

Gearin & Gilbert, for respondent.

STRAHAN J.

This is an action of ejectment commenced by the city of Portland to recover a tract of land within the corporate limits of said city, containing about five acres, and known as the "Old City Cemetery." A trial in the circuit court resulted in a verdict and judgment for the defendant from which the plaintiff has appealed. Numerous exceptions were taken upon the trial and the same have been argued on this appeal. Such of them as appear to require it, I will now proceed to examine. The plaintiff, to prove title, introduced in evidence a deed dated February 26, 1855, from James Terwilliger and wife and Finice Carruthers and Elizabeth Thomas, by the terms of which 10 acres of land was conveyed to the city of Portland one-half of which was on the claim of the defendant, being the land in controversy, and the other half being a part of the land claim of Elizabeth Thomas. After the granting and descriptive clauses in said deed, it proceeds as follows: "But upon these further expressed terms, conditions, and reservations, to-wit: That one-fourth part of said ten acres of land shall be set apart and reserved forever, and used for and as a public burial ground; that the said tract of land shall be laid off into such lots as the said city of Portland, by its proper officers, may elect to do, and shall be sold and disposed of from time to time to purchasers, and that the proceeds arising from the sale of lots by said city of Portland shall be applied in the first place to the inclosure of said ten acres of land, with a good and sufficient fence, and the remainder to clearing, adorning, and ornamenting said cemetery grounds; and that, as a further condition, the said city of Portland shall and will, immediately after the execution in full of these presents, make and deliver, without costs or charge to the grantors of this deed, a deed of conveyance to said James Terwilliger of one family burial lot in said cemetery, and to Finice Carruthers of one family burial lot therein." And in another part of said deed it is recited that it is made "for and in consideration of the covenants, promises, and agreements contained in a certain instrument of writing, dated August 24, 1854, made and entered into between the aforenamed parties of the one part and the city of Portland, a body corporate and politic in fact and in law, on the other part, and in consideration of the same, on the part of the city of Portland, having been done, performed, and concluded, and in further consideration of the sum of one dollar to us in hand paid, etc." So much of the operative part of said agreement as is necessary to a proper understanding of the questions presented is as follows: "Now, therefore, the said James Terwilliger and Finice Carruthers, in consideration of the premises and agreements of the city of Portland hereinafter named, do hereby, for themselves, their heirs, executors, administrators, and assigns, covenant and agree to, and with the city of Portland, a corporation as aforesaid, that they will well and truly make, execute, acknowledge, and deliver, or cause so to be, all and every such deed or deeds, conveyance or conveyances, whatsoever, which shall be needed for conveying and confirming unto said city of Portland, a corporation as aforesaid, a good, absolute, and clear estate and title, free of all incumbrances of, in, and to ten acres of land, to be in square form, for the purpose of a city cemetery, and said land to be situated on a line between the said Terwilliger's and Carruthers' land claims, five acres of which shall be taken from the north side, and five acres from the south side of said division line, and all to be on the west side of and next to the territorial road from said Portland to Brown's Ferry; and that said deed or deeds, conveyance or conveyances, shall be by them so made, executed, acknowledged, and delivered when the said city of Portland shall have expended the sum of four hundred dollars in building a road between said city and said cemetery land, and shall have laid off said land into such lots as they may elect to do; and that, until said deed or deeds shall be executed as aforesaid, the said city of Portland shall peacefully and quietly hold, enjoy, and use the said land as a cemetery. And the said city of Portland, a corporation duly established by law as aforesaid, for and in consideration of the premises aforesaid, and of the covenants and agreements of the said James Terwilliger and Finice Carruthers, as hereinbefore recited, does hereby promise and agree to and with said Terwilliger and Carruthers that it, the said city, will expend the sum of four hundred dollars in the building of a road from said city to said cemetery; and that one fourth part of said ten acres of land shall be reserved as and for a public burial ground; and that the proceeds of all lots which may be sold from and out of said cemetery grounds shall be expended in inclosing said ten acres of land with a good, substantial fence, and otherwise improving and adorning said cemetery lands; and that to said Terwilliger and to said Carruthers, each, the city of Portland shall and will convey one family burial lot; and that said conveyances shall be made by said city upon the execution of said Terwilliger and Carruthers of their deed or deeds of said land to said city of Portland as aforesaid." Upon the trial in the court below the respondent contended that the stipulations in the deed to the city of Portland were conditions subsequent, and the failure on the part of the city to keep and perform any or either of them defeated its estate in the lands granted, and that the defendant might re-enter as for condition broken. The respondent introduced evidence tending to prove that said land had not been used as a cemetery and burial ground since 1879; that the inclosure had been allowed to fall into decay, and that the land was no longer inclosed at the time the respondent re-entered, in 1885; that a large number of bodies, which had been buried there, had been taken up and removed, and that there were but few bodies buried there now; that the ground had never been laid off in lots for burial purposes; that none of said lots had ever been sold, and that no deed for a family burial lot had ever been delivered by the city to respondent. To all of this evidence the plaintiff objected, but its objections were overruled, and exceptions duly taken. The respondent then offered in evidence section 12 of ordinance No. 3983, which punishes, by fine or imprisonment, any person who shall inter the body of any deceased person in any lot, place, or premises within the corporate limits of said city, to which also objections were made, which, being overruled, exceptions were duly taken. The court, in instructing the jury, undertook to construe the deed to the city, which was its duty, and in construing it particularly pointed out each one of the specifications in said deed, called "conditions subsequent," and in effect instructed the jury that each one constituted a condition subsequent, and that if such conditions, or any of them, were broken, the estate of the city in said property might be terminated by the re-entry of the respondent. This is the general effect of the instructions, to which exceptions were duly taken. The court further instructed the jury: "If you find from the evidence in this case that the city authorities, by an ordinance, prohibited the burial of the dead there within these grounds, then those two conditions are broken." To which also an exception was duly taken. The court further instructed the jury as follows: "Some time in 1885 the legislature took in the Terwilliger portion of this cemetery into the corporate limits. This ordinance (section 12, of ordinance No. 3983, supra) remained unrepealed, and operates on the Terwilliger portion as it had before operated upon the Carruthers portion, and from the passage of this act, in 1885, taking that portion of the Terwilliger land into the city limits, it became unlawful for anybody to bury the dead in that portion. I instruct you that this prohibition is a breach of the conditions of this deed." An exception was also duly taken to this instruction on the part of the city. Counsel asked the court to instruct the jury as follows: "The terms, conditions, and reservations mentioned in the deed from James Terwilliger and wife and Finice Carruthers and Elizabeth Thomas to the city of Portland, and in evidence in this case, are not conditions subsequent, but must be construed as covenants merely, and a breach of them would not entitle the grantors in said deed to re-enter said premises as of first estate therein."

In Raley v. Umatilla County, 13 P. 890, we had occasion to consider the doctrine of estates upon condition, and particularly upon condition subsequent, and reached the conclusion that courts will not favor the forfeiture of estates, and that the rules of the common law that estates upon condition may be defeated by non-performance of the condition subsequent, is to be construed strictly, and that if there is any other reasonable construction which can be given to a deed, so as to avoid a forfeiture, it ought to receive such construction. In Wier v Simmons, 55 Wis. 637, 13 N.W. 873, the language of the deed was "upon the express condition," etc., but the court held that such...