Davis v. Skipper

• Decision Date: 05 June 1935
• Docket Number: No. 1783-6532.,1783-6532.
• Citation: 83 S.W.2d 318
• Parties: DAVIS et al. v. SKIPPER et al.
• Court: Texas Supreme Court

83 S.W.2d 318

DAVIS et al. v. SKIPPER et al.

No. 1783-6532.

Commission of Appeals of Texas, Section A.

June 5, 1935.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Action by E. D. Skipper and others against Wiley Davis and others. Judgment for defendants was reversed by the Court of Civil Appeals [59 S.W.(2d) 454], and they bring error.

Judgment of the Court of Civil Appeals set aside, and judgment of trial court affirmed.

Jarman & Brown and Stokes & Jarman, all of Oklahoma City, Okl., and Weeks, Hankerson & Potter, of Tyler, for plaintiffs in error.

C. E. Florence and E. M. Fulton, both of Gilmer, for defendants in error.

Banks & McLemore, of Longview, amicus curiæ.

GERMAN, Commissioner.

On October 1, 1909, H. T. Elder and wife executed and delivered a deed to the trustees of the African Methodist Episcopal Church of Kilgore, Tex., conveying one acre of land, which deed is as follows:

"The State of Texas, County of Gregg.

"Know all men by these presents: That we, H. T. Elder and his wife, Sarah E. Elder, of the County of Gregg, State of Texas, for and in consideration of the sum of Ten and No/100 Dollars, to us in hand paid by Curtis Booty, Frank Dodson, Poter Coxon, Wm. Baxter and Sam Moore, Trustees of the African Methodist Episcopal Church of Kilgore, Texas, and known as Butler Chapel, the receipt of which is hereby acknowledged, and the further consideration of agreement made that said premises shall be used for church purposes only and that in case the same is abandoned as such, that the title shall be revested in the said H. T. Elder, have Granted, Sold and Conveyed, and by these presents do Grant, Sell and Convey unto the said Curtis Booty, Frank Dodson, Poter Coxon, Wm. Baxter and Sam Moore, Trustees as aforesaid, and their successors in office, of the County of Gregg, State of Texas, all that certain tract, or lot, lying and being situated in Gregg County, Texas, and described as follows, to-wit: (Here follows description of `one acre of land be there more or less.')

"To have and to hold the above described premises, together with all and singular the rights and appurtenances thereto in anywise belonging unto the said Trustees and their successors in office, heirs and assigns forever; and we do hereby bind ourselves and our heirs, executors and administrators, to warrant and forever Defend, all and singular the said premises unto the said Trustees and their successors in office, heirs and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof."

The defendants in error here, who were plaintiffs in the trial court, and will be referred to herein as plaintiffs, are the heirs of H. T. Elder and wife, both deceased. The plaintiffs in error are the successor-trustees of the Methodist Church, known as Butler's Chapel, the pastor thereof, the presiding elder of the Jacksonville district of the Methodist Conference, and the holders of an oil and gas lease upon the one acre of land executed by the trustees of the church. They will be referred to as defendants.

It is agreed that after the deed mentioned was executed, the church went into possession of the one acre of land and erected a church building thereon, which is still standing; that the property has continuously been used by the church as a place of religious worship, and has never been abandoned for church purposes. It is further agreed that on February 29, 1932, the defendant trustees, acting for the church, executed to Carl Olsen an oil and gas lease on the one acre of land. and that under such lease an oil well was being drilled upon said land at the time of the institution of this suit.

Plaintiffs sought by this action to recover the title and possession of said acre of land, on the theory that the condition upon which the deed had been made had been breached, resulting in a termination of the title held by the church; and in the alternative sought an injunction to restrain the drilling of the oil well and the production of oil from the land, on the theory that the deed to the church contained a covenant restricting the use of the land to church purposes only, and that the drilling of an oil well on the land, with production of oil, was a violation of that covenant and would result in the destruction of the estate which they (plaintiffs) held therein.

The trial court denied plaintiffs a recovery of the land and also denied them any equitable relief. The Court of Civil Appeals held that as there had been no abandonment of the land for church purposes, and the condition upon which the deed was made had not been breached in that regard, plaintiffs had no interest in the land other than a "possibility of reverter," and were therefore not entitled to recover the land or the possession thereof. The court held, however, that the plaintiffs as the holders of a possibility of reverter had such a present interest in the land as entitled them to injunctive relief to prevent waste; it being held that the production of oil from the land would constitute a destruction of the estate and waste. The court therefore held that the trial court erred in refusing the injunction, and the case was reversed and remanded upon that issue. 59 S.W.(2d) 454.

It will be observed that the consideration for the conveyance in question is threefold in its nature: (a) The sum of $10; (b) an agreement that the premises should be used for church purposes only; and (c) that in case the same is abandoned as such, the title shall revest in H. T. Elder.

There are many authorities to the effect that a recital in a deed of conveyance that it is made upon a money consideration, and a further consideration that the grantee shall do certain things, or that only a certain use shall be made of the property, does not impose a condition and does not create an estate upon a condition subsequent. 8 R. C. L. 1101; 18 C. J. 353, 354; Board of Councilmen v. Capital Hotel Co., 188 Ky. 754, 224 S. W. 197; Adams v. First Baptist Church, 148 Mich. 140, 111 N. W. 757, 11 L. R. A. (N. S.) 509, 12 Ann. Cas. 224; Fraley v. Wilkinson, 79 Okl. 21, 191 P. 156. This being true, it is obvious that in this instance the condition subsequent is not created except by the additional language, "and that in case the same is abandoned as such that the title shall be revested in the said H. T. Elder." It has been found as a fact, and is not controverted, that the property has not been abandoned for church purposes, but is still used as such, and therefore there has been no breach of the condition subsequent. As the condition upon which the title to the land was conveyed has not been broken, it is manifest that all interest plaintiffs have in the land is a possibility of reverter. This is not such an estate as permits them to recover the title and possession of the land, and the Court of Civil Appeals correctly ruled upon this point.

The next question for decision is this: As plaintiffs have only a possibility of reverter, are they in position to maintain an action for injunction to prevent the drilling of the oil well and the production of oil from the land? The Court of Civil Appeals held that they had such an interest. We think the authorities are decidedly to the contrary. We are not particularly concerned with the technical definition of a "possibility of reverter," but with the practical question of the estate in the land held by the grantees until the happening of the condition upon which it will terminate.

So long as there is no abandonment of the land for church purposes, the trustees of the church have therein what has been termed a "base, qualified or determinable fee." Such an estate is a fee, because by possibility it may endure forever; but "as it depends upon the concurrence of collateral circumstances which qualify and debase the purity of the donation, it is therefore a qualified or base fee." The nature of such an estate is stated in 21 Corpus Juris page 923, as follows: "Until its determination such an estate has all the incidents of a fee simple, and while this estate continues, and until the qualification upon which it is limited is at an end, the grantee or proprietor has the same rights and privileges over his estate as if it was a fee simple. He has an absolute right to the exclusive possession, use, and enjoyment of the land and as complete dominion over it for all purposes as though he held it in fee simple. He is not generally liable for waste."

It follows, therefore, that the grantee under...