Gabert v. Olcott

• Decision Date: 16 November 1893
• Citation: 23 S.W. 985
• Parties: GABERT v. OLCOTT.
• Court: Texas Supreme Court

23 S.W. 985

GABERT v. OLCOTT.

Supreme Court of Texas.

November 16, 1893.

Error from court of civil appeals of first supreme judicial district.

Trespass to try title by F. P. Olcott against P. A. Smith and M. Gabert. There was a judgment in the court of civil appeals (22 S. W. Rep. 286) reversing a judgment in favor of plaintiff against Gabert, and he brings error. Reversed.

T. D. Cobbs, for plaintiff in error. H. H. Boone, for defendant in error.

GAINES, J.

This suit was brought in the district court of Grimes county by the plaintiff in error to recover of defendant in error and one Smith two certain lots in the city of Navasota. In the district court, Smith entered a disclaimer, and the plaintiff obtained a judgment against the other defendant. The latter having appealed, the court of civil appeals reversed the judgment of the district court, and rendered a judgment in his favor. Both parties claim title through the Houston & Texas Central Railroad Company as the common source. On the 13th day of February, 1872, that corporation conveyed the lots in controversy to C. M. Dubois, bishop of Galveston, "for the benefit of the Roman Catholic Church." On the 1st day of April, 1881, the Houston & Texas Central Railroad Company executed to the Farmers' Loan & Trust Company a mortgage upon its property to secure a certain bonded indebtedness. In the description of the property conveyed by the instrument was embraced, among other things, "all and singular, all town lots, acquired by gift, purchase, or otherwise, now owned, or that may be hereafter owned, on the line of railway now owned and operated by this company." In 1885 a suit was instituted in the United States circuit court for the eastern district of Texas to foreclose the mortgages upon the property of the railroad company, and receivers were appointed to take charge of the mortgaged effects. In that proceeding a decree of foreclosure was entered on the 4th day of May, 1888, and a sale was ordered. The sale was made in pursuance of the decree, and the plaintiff in error became the purchaser of the mortgaged property. On January 18, 1889, a deed was made to him as such purchaser. On the 30th day of May, 1889, N. A. Gallagher, bishop of the Roman Catholic Church of Galveston, and as attorney in fact of C. M. Dubois, conveyed the lots to the plaintiff. In 1890 the lots were levied upon and sold by the sheriff of Grimes county as the property of the Houston & Texas Central Railroad Company, by virtue of an execution issued against it, and at the sale they were purchased by defendant, to whom the officer executed his deed in due form. The evidence shows that, although a building for church purposes was placed upon the lots, it was never accepted by the Catholic Church, and that prospect for using the lots for the purposes of a church was entirely abandoned.

The first question arises upon the effect of the deed from the railroad company to Bishop Dubois. That conveyance purports to be in consideration of the sum of five dollars, and grants the property to C. M. Dubois, bishop of Galveston, and his successors in office, for the use of the Roman Catholic Church. The habendum clause is as follows: "To have and to hold, all and singular, the premises above mentioned, unto the said C. M. Dubois, bishop of Galveston, for the use aforesaid, and to his successors and assigns forever." We are of the opinion that the grantee took under the deed a fee-simple title in trust for the benefit of the church, whose officer he was. There are no conditions subsequent expressed, and, although they may be implied, they are not favored in law. It may be that the consideration expressed should be deemed nominal, and that the conveyance should be treated as voluntary, and it is true that a condition will be more readily implied in a deed of that character than in one which rests upon a valuable consideration. Yet the rule is well recognized that the mere declaration of the uses to which the granted premises are to be applied do not ordinarily import a condition. Where the declared purpose for which the property shall be used is a matter that will inure to the special benefit of the grantor, the courts are more inclined to treat the conveyance as conditional, than when, as in this case, the use is for the benefit of a special class of persons, or of the public at large. In this case it does not appear that the maintenance of a church upon the lots was a matter specially advantageous to the railroad company who made the grant. Upon these propositions the authorities are numerous, and in substantial accord. They are ably reviewed in Farnham v. Thompson, 34 Minn. 331, 26 N. W. Rep. 9, — a case directly in point, — and in the note to the report of the same case in 57 Amer. Rep., on page 63. There the words, "for the purpose of erecting a church thereon, only," followed the description of the property in the deed. Notwithstanding the word "only" excluded the idea that the property could be used for any other purpose, it was held not to create a condition. In the deed before us, the use of the word "assigns" in the habendum indicates that it was contemplated that the trustee should have power to sell the lots, and thus to divert them to a purpose other than that primarily intended.

The Houston & Texas Central Railroad Company having conveyed its entire interest in the lots, it follows that the mortgages upon its property subsequently executed, and the sale of all of its assets in pursuance of a decree foreclosing such mortgages, did not in any manner affect the title. Consequently, the plaintiff in error acquired no right to the property in controversy by reason of his purchase at that sale. Whether he have such title as enables him to maintain this action depends upon the validity and effect of the deed from Dubois, by attorney in fact, to him. In Blanc v. Alsbury, 63 Tex. 490, a similar deed executed by Bishop Dubois came up for consideration, and it was held that he had power to execute the...