Glen Rose Collegiate Inst. v. Glen Rose I. S. Dist. No. 1

Citation125 S.W. 379
PartiesGLEN ROSE COLLEGIATE INSTITUTE v. GLEN ROSE INDEPENDENT SCHOOL DIST. NO. 1 et al.<SMALL><SUP>†</SUP></SMALL>
Decision Date08 January 1910
CourtCourt of Appeals of Texas

Appeal from District Court, Somervell County; W. J. Oxford, Judge.

Action by the Glen Rose Independent School District No. 1 against the Glen Rose Collegiate Institute and others. From a judgment for plaintiff against defendants T. O. Martin and others for the recovery of certain property and for defendants Martin and others, defendant the Glen Rose Collegiate Institute appeals. Reversed and rendered.

T. L. Stanfield and J. B. Haynes, for appellant. Lev. Hays, Jno. J. Hiner, and Lee Riddle, for appellees.

CONNER, C. J.

The following statement by appellant, which appellee concedes to be substantially correct, will sufficiently indicate the nature and result of this suit: "The Glen Rose Independent Free School District sued the Glen Rose Collegiate Institute, T. O. Martin, W. F. Martin, and Lizzie Martin, alleging that on the 16th day of July, 1889, H. F. Martin, who was the ancestor of the defendants Martin, made, executed, and delivered to the trustees of the Glen Rose Collegiate Institute, naming them, a deed to the land therein described, in consideration of $1 and for the purposes thereinafter mentioned and subject to the conditions therein mentioned, and containing the following clauses after the description: `Said college to be under the control and management of the Trinity Presbytery, and be ready for use by Oct. 1, 1889. And it is hereby especially agreed that said Trinity Presbytery shall incorporate and perpetually operate a college or institution of learning at said Glen Rose Collegiate Institute by their duly appointed trustees and their successors in office, and it is hereby especially agreed by the trustees herein mentioned and the grantor herein, that in event the said Trinity Presbytery shall fail to incorporate said Glen Rose Collegiate Institute under and by virtue of the laws of the state of Texas, and to furnish a principal in said college free of charge to the local patrons of said college for a period of five consecutive years from and after the acceptance and turning over the house by said Trinity Presbytery, then the said Trinity Presbytery shall forfeit all right to said college building and grounds hereby conveyed, and the same shall revert back to the grantor herein, and the said building shall constitute a public free school building for community No. 1 of Somervell county, Texas, and H. F. Martin hereby agrees to deed two acres in a square including the buildings and all apparatus and fixtures thereto belonging to the county judge or to the state of Texas, for public free school purposes. But in the event said Trinity Presbytery shall incorporate and perpetually maintain said Glen Rose Collegiate Institute on said grounds, in that event I the said H. F. Martin do hereby bind myself, my heirs and assigns to warrant and forever defend all and singular the property heretofore described in this deed to the trustees herein named and their successors in office against the lawful claims of any and all persons whomsoever claiming the same or any part thereof.' That said conveyance was made to said trustees and their successors in office upon the condition that the said college was to be under the control and management of Trinity Presbytery, and to be ready for use by October 1, 1889, and upon the further condition that the said Trinity Presbytery should incorporate and perpetually maintain and carry on an institution of learning at and in said Glen Rose Collegiate Institute by their appointed trustees and their successors in office, and upon the further condition and agreement between the trustees named in said instrument and grantor therein that in the event the said Trinity Presbytery should fail to incorporate said Collegiate Institute under and by virtue of the laws of the state of Texas, and furnish a principal in said college free of charge to the local patrons of same for a period of five consecutive years from and after the turning over and acceptance of said house and grounds by Trinity Presbytery, and further conditioned that said Presbytery should perpetually maintain an institution of learning in said institute, then, in either event, said Presbytery and institute should forfeit all right and title to said college building and grounds, and that the same should revert to the grantor, and should become a public school building and grounds for School Community No. 1, and that the said H. F. Martin agreed in the event of forfeiture to deed two acres, including the buildings, to county judge or to the state for public free school purposes, and that the Glen Rose Independent School District is the successor of School Community No. 1 and includes the same inhabitants. And alleged a breach of all the conditions contained in the deed. That said H. F. Martin died on the 1st day of August, 1902, and left surviving him the parties named above as codefendants, and that there had been no administration on his estate, nor no necessity for any."

Among other things that we think it unnecessary to notice appellant answered by a general denial. The heirs of H. F. Martin also answered for themselves, affirming substantially the allegations of the plaintiff in the suit, and admitted the right of the plaintiff to recover the two acres, but pleaded against appellant for the remainder. The case was tried on an agreed statement of facts, and judgment rendered against appellant for all the land described in the deed, and in favor of the Glen Rose Independent School District against the Martin heirs for two acres including the building, and for the Martins the remainder.

The first and second assignments go to the alleged action of the court in overruling certain demurrers, but the record fails to show that the demurrers were called to the attention of the court, or that the court made any ruling thereon. These assignments must therefore be disregarded.

Appellant's third and fourth assignments, however, we think are well taken. They are as follows: Third: "The court erred in finding against defendant because there were contained in the deed from H. F. Martin to the trustees of Glen Rose Collegiate Institute only two conditions of defeasance, to wit: First, and it is expressly agreed by the trustees herein mentioned and the grantor herein that in the event that said Trinity Presbytery shall fail to incorporate said Glen Rose Collegiate Institute under and by virtue of the laws of the state of Texas, and, second, to furnish a principal in said college free of charge to the local patrons of said college for a period...

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9 cases
  • Rosek v. Kotzur
    • United States
    • Texas Court of Appeals
    • 19 Noviembre 1924
    ...v. Huntington, 104 Tex. 350, 136 S. W. 1053, 138 S. W. 381; Robinson v. Faville (Tex. Civ. App.) 213 S. W. 318; Glen Rose v. Glen Rose, 58 Tex. Civ. App. 435, 125 S. W. 379; Carney v. Carney, 138 Tenn. 647, 200 S. W. 517; Shafer v. Shafer (Mo.) 190 S. W. 325; Anderson v. Gaines, 156 Mo. 664......
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    • 5 Enero 1949
    ...forfeiture, but gave rise to an action for damages for a breach of those obligations. Glen Rose Collegiate Institute v. Glen Rose Independent School Dist. No. 1 et al., 58 Tex.Civ.App. 435, 125 S.W. 379, writ refused; Chicago, T. & M. R. Co. et al. v. Titterington et ux., supra; W. T. Waggo......
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    ... ... Law of Property, Volume 1, Sec. 24, p. 59 ... The ... intent ... other reasonable construction. Glen Rose Collegiate ... Institute vs. Glen Rose ... v. Imperial Irr ... Dist., (9 Cir.) 85 F.2d 886. "The challenge to the ... ...
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    • 15 Noviembre 1923
    ...against such, where the language, as here, clearly manifests only an agreement to reconvey. Glen Rose Collegiate Inst. v. Glen Rose I. S. Dist., 58 Tex. Civ. App. 435, 125 S. W. 379 (writ denied); Kent v. Stevenson, 127 Miss. 529, 90 South. 241; Kohnke v. Kohnke (Mo. Sup.) 250 S. W. 53. It ......
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