Farmer's High School Consol. Dist. No. 3, Johnson County v. Parker

• Decision Date: 16 June 1947
• Citation: 203 S.W.2d 516,240 Mo.App. 331
• Parties: Farmers High School Consolidated District No. 3, Johnson County, Missouri, Respondent v. Dr. H. F. Parker, Appellant
• Court: Kansas Court of Appeals

203 S.W.2d 516

240 Mo.App. 331

Farmers High School Consolidated District No. 3, Johnson County, Missouri, Respondent v. Dr. H. F. Parker, Appellant

Court of Appeals of Missouri, Kansas City

June 16, 1947

Delivered

Appeal from Circuit Court of Johnson County; Leslie A. Bruce, Judge.

Affirmed.

Max D. Aber and Ike Skelton for appellant.

(1) Enclose with a good and lawful fence, as used in the condition subsequent contained in the deed under which respondent claims, means entirely surrounded on all four sides with a good and lawful fence. 42 C. J. S. 523. (2) Respondent must recover upon the strength of its own title and not upon the weakness of its adversary's. Cox v Arnold et al., 129 Mo. 337, 31 S.W. 592; Chaput et al. v. Pickel, 250 Mo. 578, 137 S.W. 613; Akins v Adams, 256 Mo. 2, 164 S.W. 603; McVey v. Carr, 159 Mo. 648, 60 S.W. 1034. (3) Limitations will not run against a condition subsequent. An entry for condition broken is essential. Bredell et al. Kerr et al., 242 Mo. 317, 147 S.W. 105; Sebree et al. v. Patterson et al., 92 Mo 451, 5 S.W. 31; Butler et al. v. Carpenter et al., 163 Mo. 597, 63 S.W. 823. (4) Instruction One, given by the Court at the request of respondent, is in conflict with and contradicts Instruction "A" given by the Court at the request of appellant. Neuhaus v. United Neighbors, 150 S.W. 2d 590; State ex rel. Ins. Co. v. Trimble, 29 S.W. 2d 418; Bouligny v. Power and Light Co., 33 S.W. 2d 1094, 1097; Fay v. Power and Light Co., 33 S.W. 2d 1056, 1058; Griffith v. Delico Co., 145 S.W. 2431-2434. (5) Instruction One, given by the Court at the request of respondent assumes that respondent was the successor of said School District No. 66. Frost v. Jensen, 155 S.W. 2d 553; Baird v. National Health Foundation, 144 S.W. 2d 850; Beyerson v. General Insurance Co. of America, 148 S.W. 2d 812, 235 Mo.App. 806.

Gayles R. Pine for respondent.

(1) Plaintiff and its predecessors had been in full, complete and adverse possession of the premises in question from July 1, 1881, until July 28, 1945, during which time their title and right of possession was never questioned. Section 1529 R. S. Mo. 1939; Love v. Love, 250 Mo. 491, 157 S.W. 590. (2) Estate in fee granted by a deed cannot be cut down to a lesser estate by a repugnant provision. Triplett v. Triplett, 60 S.W. 2nd 13; Gannon v. Albright, 183 Mo. 238, lc 251, 81 S.W. 2nd 1162, lc 1164; Elsea v. Smith, 273 Mo. 396, 202 S.W. 1071; Schee v. Boone 243 S.W. 882, 295 Mo. 212. (3) A condition subsequent reciting a possibility of reverter of title to real estate is not favored in law and does not enure to the benefit of a purchaser under Sheriff's sale in partition. 21 C. J. 1017, Section 180; 26 C. J. 482, paragraph 147; Davis v. Austin, 156 S.W. 2nd 903, 905; University City v. Chicago R. I. & P. Ry. Co., 149 S.W. 2nd 321, lc 324; Catron v. Scarritt Collegiate Institution, 175 S.W. 571, lc 573, 264 Mo. 713, 723. (4) Condition subsequent waived by failure to re-enter for condition broken and is barred by Statute of Limitations. 26 C. J. S. 498, paragraph 158; Bredell v. Kerr, 242 Mo. 317; Tower v. Compton Hill Imp. Co., 192 Mo. 379; Section 1002 R. S. Mo. 1939; Section 1008 R. S. Mo. 1939; Robinson v. Cannon 145 S.W. 2nd 146, 346 Mo. 1126. (5) Possibility of reverter of title to real estate within the rule against perpetuities. 21 C. J. 1017, paragraph 180; Loud v. St. Louis Union Trust Co., et al. 249 S.W. 629, 298 Mo. 148; Schee v. Boone et al. 243 S.W. 882, 295, Mo. 212; Koehler v. Rowland 205 S.W. 217, 275 Mo. 573; St. Louis Union Trust et al. v. Bassett et al. 85 S.W. 2nd 569, 337 Mo. 604; Trautz v. Lemp et al. 46 S.W. 2nd 135, 329 Mo. 580; Bozworth et al. v. Wabash Ry. Co., 58 S.W. 2nd 448, 332 Mo. 277. Rutherfurd v. Farrar, 118 S.W. 2nd 79, 72 F. 2nd. 644. (6) A condition subsequent providing for reverter of title for failure to maintain fence along public road adjoining premises conveyed, served no useful purpose and is oppressive and inequitable for modern use of the premises, when construing the real intention of the grantors to convey the premises for school purposes. Koehler v. Rowland, 205 S.W. 217, 275 Mo. 573. (7) Where no definite time is provided within which a broken condition in deed must occur for forfeiture of title to real estate, then forfeiture and broken condition and re-entry of the premises must occur within the life time of the grantors to defeat an estate in fee conveyed in deed. Schee v. Boone, 243 S.W. 882, 887, 295 Mo. 212. (8) Court will take judicial notice of corporate capacity of the plaintiff as successors of the directors of School District No. 66; District v. Holmes 53 Mo.App. 487; Section 10406 R. S. Mo. 1939. (9) 'Instruction one', given by the Court at the request of respondent properly covered the law in the whole case. 'Instruction A', given by the court at the request of appellant was erroneous and incorrect and appellant cannot complain. Cleveland v. Laclede-Christy Clay Products Co. 113 S.W. 2nd 1065, 1071. Green v. Baum, 132 S.W. 2nd 665, 667; King v. City of St. Louis, 155 S.W. 2nd 557, 563; Williams v. Excavating & Foundation Co., 93 S.W. 2nd 123, 127, 230 Mo.App. 973.

OPINION

Bland, J.

This is an action in ejectment. There was a verdict in favor of plaintiff, finding that it was entitled to the possession of the real estate in controversy, assessing its damages at $ 5.00, and the monthly rents and profits at $ 5.00 per month. Defendant has appealed.

The suit involves the possession of an acre of ground, which was conveyed to School District No. 66, in Johnson County, by one Jacob S. Neff, by a general warranty deed, in which his wife joined, dated July 1st, 1881. The deed recites that the grantor granted, bargained and sold to the grantee the land in question. The deed contains the following clause: "In the Conveyance of the above described acre of Ground for the purpose of erecting a school building, for the benefit of the above school district, I do require as a condition to within deed, that the Directors of said school district to enclose the same with a good and lawful fence, and keep the same in repair, and for a failure on the part of said directors to maintain a good and lawful fence around the same will forfeit the title to the above described acre of land and will fall back to the said Jacob S. Neff and to his heirs".

A school house was erected on the land known as the Neff School. The building now stands thereon.

Jacob S. Neff died on January 1st, 1909. Plaintiff absorbed School District No. 66 by consolidation in 1916. Defendant took possession of the tract in July or August 1945, under a Sheriff's deed in partition. The deed purports to convey land including a 60 acre tract in which the acre in controversy is located. The deed recites that it was made in pursuance to a judgment in a partition suit between certain parties who acquired the 60 acres by descent; said real estate having descended "to them as heirs and devisees under the will of William J. Pollock". There is nothing in the record to show how Pollock acquired title to the land. The Sheriff's deed recites that the land was conveyed "subject to the rights of School District".

Plaintiff's title to the acre of ground in controversy had never been questioned prior to the time defendant took possession of it. The evidence shows that the acre in question was under fence at various times, the fences remaining in a more or less state of disrepair. It was admitted at the trial that there had been no fence along the west side of the tract adjacent to the public road since the year 1906.

Defendant insists that the court erred in refusing to sustain his motion for a directed verdict, because it is claimed that plaintiff failed to prove a superior title to the land in controversy. In this connection defendant says: "Can a grantee, claiming under a warranty deed containing a condition subsequent oust one holding possession of land under a Sheriff's Deed in partition, wherein the interest of all the parties litigant in a partition suit was conveyed to him, when respondent admits and the record shows that prior to appellant's entry said condition subsequent had been breached and broken by respondent. Appellant urges that this question must be answered in the negative because, when respondent admits that it breached and broke said condition subsequent, it confesses that it has no title or claim to the land described in said deed as against anyone in possession".

There is no question but that the provision in the Neff deed in reference to the enclosing by and maintaining of a lawful fence around the land in controversy amounts to a condition subsequent, and there is no contention but that said condition was breached prior to the time defendant took possession of the land. However, the breach of the condition...