Lacer v. Navajo County, I-X

• Decision Date: 25 January 1983
• Docket Number: I-X,No. 1,D,I-,CA-CIV,1
• Parties: Mary Zuck LACER, Plaintiff-Appellant, v. NAVAJO COUNTY, a body politic; Norman H. Turley, Johnny L. Butler and Charles H. Patterson, as members of and constituting the Board of Supervisors of Navajo County; the State of Arizona, a body politic; the Holbrook Chamber of Commerce; John Does; Jane Does; and Black and White Corporations, Defendants-Appellees. 5508.
• Court: Arizona Court of Appeals

Page 404

687 P.2d 404

141 Ariz. 396

Mary Zuck LACER, Plaintiff-Appellant, v. NAVAJO COUNTY, a body politic; Norman H. Turley, Johnny L. Butler and Charles H. Patterson, as members of and constituting the Board of Supervisors of Navajo County; the State of Arizona, a body politic; the Holbrook Chamber of Commerce; John Does I-X; Jane Does I-X; and Black and White Corporations I-X, Defendants-Appellees.

No. 1 CA-CIV 5508.

Court of Appeals of Arizona Division 1, Department A.

Jan. 25, 1983.

Reconsideration Denied March 4, 1983.

Review Denied April 5, 1984.

Verkamp & Verkamp by John G. Verkamp, Flagstaff, and Fleming, Pattridge, Hacking & Gardner by Conrad E. Gardner, Golden, Colo., for plaintiff-appellant.

Jay V. Flake, Navajo County Atty. by Dale K. Patton, Jr., Deputy County Atty., Holbrook, for defendants-appellees.

OPINION

KLEINSCHMIDT, Judge.

This is an action on a claim for the land upon which the old Navajo County Courthouse sits. The appellant is the sole surviving heir of the original grantor to the county. Following trial the court found that the appellant had no interest of any kind in the land and entered judgment for the defendants. The action is based upon a number of theories which we will consider separately below. It arises out of the following facts.

The plaintiff's father, Frank A. Zuck, a prominent citizen of Navajo County at the turn of the century and the original owner of the land, deeded it to Navajo County by an instrument dated January 31, 1898, which read, in its granting clause, as follows:

Know all men by these presents that I, Frank A. Zuck, of the county and territory aforesaid, for and in consideration of the sum of One (1) Dollar, lawful money of the United States, in hand paid by said County of Navajo, Territory of Arizona, the receipt of which is hereby acknowledged, have granted, sold and conveyed and by these presents, do grant, sell and convey unto the said County of Navajo, Territory of Arizona, the following described lot or parcel of land, lying and situate on the townsite quarter ( 1/4) SEction [sic] of the Town of Holbrook in the said county and territory and more fully described as follows, to wit: [legal description omitted] the title to which said foregoing described tract or lot of land shall vest in said County of Navajo, Territory of Arizona at any time, said county shall or may begin the erection the erection [sic] of a courthouse and jail for use of said county, on said tract or lot of land and shall be used for no other purpose. (Emphasis added.)

Thereafter, in the habendum clause, the instrument reads:

to have and to hold the said described premises for the purposes hereinstated ........ unto the said County of Navajo ........, their heirs, assigns and successors, forever. And I do hereby bind myself, my heirs, executors and administrators to warrant and defend ........ the said premises unto the said County of Navajo ..... their heirs, assigns and successors .... (Emphasis added.)

There was evidence that before the turn of the century several communities in Navajo County were vying to be the county seat and it can easily be inferred that one of Frank Zuck's purposes was to secure that advantage for Holbrook.

After receipt of the deed Navajo County constructed a county courthouse and jail on the site and the property was used for those purposes until 1976 when a new courthouse and jail were constructed at another location in the county. Thereafter, the building was used as offices for the county health department and for the storage of superior court case files, court reporters' notes, about one-third of the county law library, jail records, election materials and records of the county assessor and treasurer. It also housed some offices of the State Department of Economic Security. Located on the same grounds is an office of the Holbrook Chamber of Commerce. Both the Presiding Judge of the Superior Court of Navajo County and a member of the county board of supervisors testified that the building could still be and might be used for court purposes and that the jail could be used to detain overflow prisoners.

There is no evidence as to what actual consideration passed for the deed but the record does show that on April 5, 1898, the board of supervisors canceled property taxes for the preceding year on the parcel in question in the amount of $177.97. There was evidence that this was done in consideration for the conveyance of the land to the county although the same was less than the fair market value of the property.

In 1923 Frank A. Zuck filed a petition in bankruptcy in which he disclaimed any interest, reversionary or otherwise, in the land involved in the transaction.

There was no evidence that at the time of the conveyance Frank Zuck owned any other real property and appellant owns no real property in the State of Arizona at this time. We turn to the appellant's separate theories of recovery.

The plaintiff contends that as the sole surviving heir of Frank Zuck she has a reversionary interest in the property. She says that the conveyance created either a fee simple determinable or a fee simple subject to a condition subsequent. On this issue the trial court granted partial summary judgment in favor of the defendants and held that the plaintiff had no reversionary interest in the courthouse property.

FEE SIMPLE DETERMINABLE

The deed did not grant a fee simple determinable. A fee simple determinable is created by any limitation in a conveyance which creates an estate in fee simple and then provides that the estate shall automatically expire upon the occurrence of a stated event. Restatement of Property, § 44 (1936). Such an intent is usually manifested by a limitation which contains the words "until", "so long as", or "during". Restatement of Property, § 44, comment 1 (1936). The conveyance must express the intent of the grantor that the estate will automatically expire upon the happening of an event and a mere statement as to the purpose of the grant is not sufficient. Restatement of Property, § 44, comment m (1936) provides:

When a limitation merely states the purpose for which the land is conveyed, such limitation usually does not indicate an intent to create an estate in fee simple which is to expire automatically upon the cessation of use for the purpose named.

The Restatement illustrates as follows:

A, owning Blackacre in fee simple absolute, transfers Blackacre 'to B and his heirs to and for the use of the C church and for no other purpose.' B has an estate in fee simple absolute and not an estate in fee simple determinable.

A case in point is Stuart v. City of Easton, 170 U.S. 383, 18 S.Ct. 650, 42 L.Ed. 1078 (1898), in which the deed stated that the conveyance was "to and for the erecting thereon a courthouse for the public use and service of said county, and to and for no other use, intent, or purpose whatsoever." The county used the property for a courthouse for over a hundred years but then ceased to use it for that purpose. The sole heir of the original grantor, contending that the conveyance created a fee simple subject to a condition subsequent, entered the property alleging that the deed created a defeasible fee and that when the property ceased to be used as a courthouse, title to it reverted to him. The Supreme Court of the United States rejected this argument and in doing so pointed out that there was an absence of words such as "while", "so long as", "until", or "during". The court concluded that a grant for a special purpose, without other words, does not make an estate conditional and that in this case, the language used in the conveyance was a description of the reason the property was deeded to the county and reflected on what legal basis the county was authorized to pay consideration for it.

The appellant argues that Stuart v. City of Easton is distinguishable because the land had been conveyed pursuant to a statute that authorized certain trustees to accept a deed for the purpose of establishing a courthouse and that it was therefore necessary to recite a purpose in the deed to show by what authority the trustees were receiving the land. There are two reasons why appellant's argument fails. First, Stuart v. City of Easton, supra, is clearly, if partially, predicated on the absence of words in the conveyance like "while" or "until"; and second, there was good reason in this case, just as there was in Stuart, for the grantor to express the reason for the grant as a mere purpose. The conveyance was not to take effect until the construction of the courthouse and jail had begun. The deed which we construe here reflects no more intent to create a defeasible fee than did the deed construed in Stuart v. City of Easton.

In a somewhat similar case, City of Tempe v. Baseball Facilities, Inc., 23 Ariz.App. 557, 534 P.2d 1056 (1975), the city had refused to issue certain privilege tax permits to the appellee on the grounds, among others, that the land in question was subject to a reversionary interest in the county if a deed restriction were violated. The deed restriction provided:

Subject to the restriction that the ... real property shall be operated and maintained solely for park, recreational and public accommodation, and convenience purposes.

The City contended that the use appellee applied for would violate the restriction. This court noticed the absence of words like "while", "during", "until", or "so long as" in the restriction and concluded that the language could be considered merely precatory or as a restrictive covenant and declined to find that it created a fee simple determinable.

The appellant has cited five cases for the proposition that the language of the deed can be construed to create a determinable fee. We discuss each briefly.

In Papst v. Hamilton, 133 Cal. 631, 66 P. 10 (1901), the court held that a fee simple determinable may be created by language which states a condition upon which the grant...