Lawyers Trust Co. v. City of Houston

• Decision Date: 25 July 1962
• Docket Number: No. A-8567,A-8567
• Parties: LAWYERS TRUST COMPANY, Petitioner, v. CITY OF HOUSTON, Respondent.
• Court: Texas Supreme Court

Page 887

359 S.W.2d 887

LAWYERS TRUST COMPANY, Petitioner, v. CITY OF HOUSTON, Respondent.

No. A-8567.

Supreme Court of Texas.

July 25, 1962.

Rehearing Denied Oct. 3, 1962.

Red, Kemp & Fahey, Houston, (James Wyckoff, Houston, with firm), James R. Lewis, Tyler, for petitioner.

R. H. Burks, City Atty., Houston, Homer Bouldin, Senior Asst. City Atty., for respondent.

SMITH, Justice.

This is a trespass to try title suit. On the 12th day of August, 1926, W. T. Carter Lumber & Building Company, executed an instrument wherein it was recited that the company had acquired title to certain lands in the H. B. Prentiss, Blas Berrera and Joseph Kopman Surveys in Harris County, Texas, and had plotted the several tracts so acquired into lots and blocks, to be known as 'Garden Villas'. The instrument, subject to certain reservations, dedicated unto the public certain described portions of such tracts for park and other purposes, all of which was delineated upon a map attached to and made a part of the dedicatory instrument. Among the rights reserved unto W. T. Carter Lumber & Building Company, its successors and assigns, was that expressed in reservation four (4), which reads;

'If, on or after the expiration of twenty-five (25) years from date hereof, any tract or tracts dedicated for parks, civic centers, schools or community places as shown on said plat, cease to be used for the purpose or purposes indicated thereon, the fee title to any such tract or tracts shall vest and be in W. T. Carter Lumber & Building Company.'

Lawyers Trust Company, hereinafter designated as Lawyers Trust, successor in title to W. T. Carter Lumber & Building Company, filed this trespass to try title suit against the City of Houston, hereinafter referred to as the 'City' and R. N. Ferguson. Thereafter, Ferguson died and Mrs. Minnie Lucille Anderson was substituted as party defendant. Lawyers Trust based its suit upon the contention that the City, the representative of the public, had on and after August 12, 1951, the expiration date of the twenty-five (25) year term provided in the reservation, ceased to use the land described in its petition for park purposes, and, therefore, Lawyers Trust was the owner of the land and vested with all rights reserved by W. T. Carter Lumber & Building Company. The City answered the suit by filing a general denial. Mrs. Anderson filed a general denial and claimed title to the land involved under the Ten Year Statute of Limitations of the State of Texas. An instructed verdict was granted against Mrs. Anderson in the trial court and the case as between Lawyers Trust and the City was submitted to a jury upon two special issues. ¹ The jury in response thereto found: (1) that on and after August 12, 1951, the land involved had ceased to be used for park purposes, and (2) that the land in question was abandoned as a public park on or after August 12, 1951.

The trial court entered judgment against the City and Mrs. Anderson and awarded to Lawyers Trust the title to and possession of the tract of land sued for and described as follows:

'A tract of land lying in and being within the confines of Garden Villas, a subdivision described and depicted in the declaration of dedication recorded in Vol. 655, page 258 of the Deed Records of Harris County, Texas, and in map thereof recorded in Vol. 8, pages 3, 4, and 5, Harris County Map Records, and more particularly described as follows, to-wit: An irregularly shaped parcel of land bounded on the South by Santa Fe Drive, on the East by Park Drive, on the northeast by lot S35, on the Northwest by lot S34, and on the West by Sims Drive, all according to the above mentioned map, and on said map marked 'Park', to which map reference is here made in aid of description. Also described as 'Second Tract' in deed from the Carter Investment Company to Lawyers Trust Company recorded in Volume 3409, page 311, of the Record of Deeds for Harris County, Texas, to which deed and the record thereof reference is also made in aid of description.'

The City alone appealed to the Court of Civil Appeals and that court reversed the judgment of the trial court and rendered judgment for the City. 348 S.W.2d 26.

The pertinent facts are these: On April 12, 1926, the date of dedication, the land was situated outside the city limits of Houston, Texas, and was owned by the dedicator, W. T. Carter Lumber & Building Company. The land involved here was designated on the map or plat as Park No. 1 and was used by the public for park purposes from the date of dedication through the year 1944. The city limits of Houston were extended in 1949 so as to include Park No. 1.

The record shows that sometime in the middle 1930's Mr. Ferguson was placed on the park property as an employee of the W. T. Carter Lumber & Building Company. The reason for this was that the residents of Garden Villas were complaining that the park was being used for improper purposes. As an accommodation to the public, Mr. Ferguson was placed on the property partly to police the same. In this connection, we point out that at no time after the execution of the deed of dedication was W. T. Carter Lumber & Building Company under a duty to furnish police protection to the public.

In 1947 the W. T. Carter Lumber & Building Company conveyed to the Carter Investment Company all of its rights to the property. Thereafter, in 1957, the Carter Investment Company conveyed to the Lawyers Trust Company its interest in the property. Although Ferguson continued to live on the property from 1947 until the time of his death in 1959, he was never at any time an employee of either the Carter Investment Company or the Lawyers Trust Company.

Lawyers Trust Company contends that a conditional limitation was created by the deed of dedication and that consequently upon cessation of use of the property for park purposes on and after August 12, 1951, the estate created by the deed of dedication automatically terminated. Lawyers Trust makes the further contention that even though it may be held that the language of the deed of dedication was sufficient to create a condition subsequent, it had a right of re-entry from and after August 12, 1951, nevertheless, by virtue of the broken condition, and that it exercised such right of re-entry by the filing of this suit in trespass to try title in 1959.

The City contends that the language of the deed od dedication conclusively shows that a condition subsequent was created, but that a forfeiture resulting from the breach of the condition subsequent was waived, and that Lawyers Trust had forfeited its right to claim a forfeiture prior to the filing of this suit on February 18 1959. The City makes the further contention that it was excused from using Park No. 1 for park purposes by the acts and conduct of Ferguson, the agent of the W. T. Carter Lumber & Building Company.

In view of the vigorous contention presented by Lawyers Trust that a conditional limitation was created by the language of the deed of dedication and that consequently cessation of use of the property for park purposes automatically terminated the estate, we deem it necessary to briefly state our reasons for holding to the contrary. The City contends that the deed of dedication imposed upon the estate a condition subsequent. We agree.

It is a cardinal rule in determining from the language of deeds whether a conditional limitation or a condition subsequent was intended by the parties that the instrument as a whole must be considered. Stevens v. Galveston H. & S. A. Ry. Co., 212 S.W. 639 (Tex.Comm.A...