Daggett v. City of Ft. Worth

• Decision Date: 29 May 1915
• Docket Number: (No. 798.)
• Citation: 177 S.W. 222
• Parties: DAGGETT v. CITY OF FT. WORTH et al.
• Court: Texas Court of Appeals

Page 222

177 S.W. 222

DAGGETT v. CITY OF FT. WORTH et al.

(No. 798.)

Court of Civil Appeals of Texas. Amarillo.

May 29, 1915.

Appeal from District Court, Tarrant County; R. H. Buck, Judge.

Action by E. J. Daggett against the City of Ft. Worth and others. Judgment for the defendants, and plaintiff appeals. Affirmed.

Bryan, Stone & Wade, of Ft. Worth, for appellant. Sidney L. Samuels, of Ft. Worth, for appellees.

HENDRICKS, J.

The property in controversy, a block of ground 200 feet square, situated in the Daggett's addition to the city of Ft. Worth, was owned by Mrs. Daggett, the appellant, as her separate property. On July 17, 1884, she conveyed the same, joined by her husband, E. B. Daggett (since deceased), to the city of Ft. Worth, by a general warranty deed, containing the recitation:

"In consideration of the sum of $10.00, to us in hand paid by the city of Ft. Worth, * * * and the further consideration hereinafter mentioned, have granted, sold, and conveyed"

— to said city the described property, and containing the further recitation, immediately following the description of the property:

"And the further consideration above mentioned is that said premises shall be used for free school purposes, and that said city of Ft. Worth will erect a suitable schoolhouse or schoolhouses thereon, or the above-described premises shall revert to said E. B. and E. J. Daggett, but we will allow said city of Ft. Worth twelve months from this date to finish said schoolhouse or schoolhouses."

The recited nominal consideration, "$10.00," was never paid, nor intended to be paid. It was admitted at the trial that the grantee performed the condition relating to the erection of a school building within the period of 12 months stipulated in the deed.

Appellant, pleading her cause of action specially, in addition to trespass to try title, undertook to recover the property by virtue of the reversionary clause in the deed, on the ground that the same had been abandoned for school purposes.

The trial court found:

"That said city of Ft. Worth and its successor in charge of the public schools, the independent school district of the city of Ft. Worth, for a period continuously of more than 26 years, did actively conduct a public school in said building, teaching and educating the children of the city therein"

— which finding was supported by the testimony. The city of Ft. Worth discontinued the use of the particular building for the purpose of conducting the school therein, upon the erection of another new school building in the same ward, costing about $30,000. We are unable to determine the exact date, but from the record we infer that this occurred some time in 1910. The appellant filed her original petition in July, 1911, thereafter amending in November, 1912, alleging, in said amendment, that the old building had not been used for school purposes "during the past two years," from which, according to the presentation by the pleading, the discontinuance of the use of said building occurred a comparatively short time — a few months — previous to the institution of this suit.

At the time of the conveyance of this block to the city Mrs. Daggett was the owner of a great deal of the surrounding property in the Daggett's addition, consisting partially of whole blocks, and of lots in different blocks, and, so far as this record presents, has sold only one lot out of her holdings since that time. She testified:

"The real consideration I expected to receive in return for the conveyance of this lot to the city was the benefit which would come from the erection and maintenance of a school; I thought this would enhance the value of my property."

Appellant's son, who is the manager of her holdings, testified that she had from 40 to 70 lots, and also owned from 50 to 60 houses, in that community; the houses rented about equally to negroes and whites. It is inferable, however, from other testimony, that the proportion of negro tenants and residents upon her property is considerably more. It is also deducible that this particular section of the city began to be stamped as a negro community by the action of appellant and other property owners renting to them before the discontinuance of school in the building, and Smith, one of the appellant's witnesses, said "that, where negroes begin to encroach upon a white community, the white people move away."

The trial court also found:

"That the inducing cause to grantors in conveying the property to the city of Ft. Worth was the enhancement in value to contiguous property owned by them that would result from the location of said school building; and I further find in this connection that such enhancement as would accrue from such cause has already been enjoyed and reaped, and that the continuance of school in such premises would not contribute to enhancement in values of adjacent property, nor would its removal therefrom reduce or injure the values thereof, and that the suspension of school in such building did not affect the value of grantors' adjacent property, nor would the removal of the school therefrom preclude such enhancement, or even tend to reduce the rental or sales value of such property, for that long prior to the suspension of school in such building values in said neighborhood had fallen and will continue to fall because of the encroachment of the negro population thereon and a steady exodus of whites therefrom, with which condition the suspension of the school had nothing to do."

It is true that:

"To constitute a condition subsequent, upon which a forfeiture may be declared, because of a failure of its performance, the language must be clear, and the condition must be created by express terms, or by clear implication, and it must be strictly construed." South Texas Telephone Co. v. Huntington, 104 Tex. 353, 136 S. W. 1053, 138 S. W. 381.

We think, however, the particular instrument creates the condition: First, for the erection of a suitable school building within the period stipulated; and, second, that the premises should be used for "free school purposes." The collocation of the language in the clause defining the subsequent conditions may not be as appropriate, nor as fully expressive, as desired, but we think a fair interpretation bespeaks such meaning and intention.

As to the rule of construction applicable to conditions subsequent, Justice Kent also expresses it:

"Conditions subsequent are not favored in law, and are construed strictly, because they tend to destroy estates; and the vigorous exaction of them is a species of summum jus, and in many cases hardly reconciliable with conscience." 4 Kent, 130.

And the Supreme Court of Massachusetts said, in Merrifield v. Cobleigh, 4 Cush. (Mass.) 178, 184, in speaking of a condition subsequent:

"Such a condition, when relied upon to work a forfeiture, is to be construed with great strictness; the demandant shall have his exact legal right, and no more."

Of course, the principle of interpretation, evidenced by the above quotations is more often referable to the language of the instruments, whether from its phraseology, bearing in mind the rule of construction against the condition and in favor of an indefeasible estate, the intention is sufficiently expressed, or clearly implied, that a defeasible condition exists; and, again, where it is difficult to distinguish whether a language expresses a subsequent condition or a covenant, it will be declared a covenant, and not a condition, not upon a process of reasoning satisfactory as to the real intention of the parties, but more in deference to the rule that the law leans against the condition. Byars v. Byars, 11 Tex. Civ. App. 568, 32 S. W. 925. It is said, when the attempt is made to imply a condition subsequent by interpretation:

"If the instrument will bear any reasonable construction that will defeat the springing of an implied condition subsequent, at law as in equity, that construction will be adopted. Estates upon implied conditions * * * cannot be created by deed, except where the terms of the grant will not admit of any other reasonable construction." Ryan v. Porter, 61 Tex. 109.

It is familiar that, unless the heir is named, he cannot re-enter, though the condition is breached; the estate does not inure to his benefit. And the Supreme Court of New Hampshire (Emerson v. Simpson, 43 N. H. 475, 80 Am. Dec. 184, 82 Am. Dec. 168) holds the converse, that where a deed is made upon condition that the grantee shall "forever" keep up and maintain a fence between the land conveyed and the land of the grantor, the neglect by the widow to repair and keep up the fence after the grantee's death will not forfeit the land.

The inculcation of this doctrine, rather abstractly reproduced by us, becomes concrete to the extent as pointing the path universally traveled. Of course, if the deed in question had used more definite language that the premises should be "forever" used for free school purposes, the performance would then not have been extended longer than the life of the grantor. The question is, however, under the language of the instrument, and the conditions as presented, does the instrument mean "forever," limiting the use of the word to the longest time which, under the law, performance could have been exacted? The deed does not in terms stipulate that the premises shall be a permanent site for free school purposes, nor use language of an indefinite duration for the establishment of the premises for the use of the school indicating the longest length of time the law would permit. It does not say that the...