Mayor v. Brenau Coll., (No. 1815.)
| Decision Date | 11 May 1920 |
| Docket Number | (No. 1815.) |
| Citation | 150 Ga. 156,103 S.E. 164 |
| Parties | MAYOR, ETC., OF CITY OF GAINESVILLE et al. v. BRENAU COLLEGE et al. |
| Court | Georgia Supreme Court |
(Syllabus by the Court.)
[Ed. Note—For other definitions, see Words and Phrases, First and Second Series, Building.]
(Additional Syllabus by Editorial Staff.)
Error from Superior Court, Hall County; J. B. Jones, Judge.
Suit for injunction by Brenau College and Brenau Association against the Mayor and Council of the City of Gainesville and others. Judgment for plaintiffs granting the injunction, and defendants bring error. Affirmed.
Brenau Association and Brenau College filed an equitable petition to enjoin the sale of certain real estate under an execution for taxes claimed to be due by the city of Gainesville for the year 1918, upon the ground that said property was not subject to taxation by the municipal authorities of Gainesville. The case was tried upon an agreed statement of facts. Brenau Association is a corporation, having a capital stock and power to declare and pay dividends. Brenau College is a corporation, but has no capital stock and no power to declare and pay dividends.
Under its charter it has the authority to establish and conduct 'a college for the education of females, to receive donations for that purpose, to hold such property as may be necessary or expedient for the legitimate execution of the purposes of the corporation, and to appoint a board of trustees for the college. Its charter provides that all the receipts from tuition or otherwise shall be applied exclusively to the maintenance of the institution, and that no profit shall be derived from the operation, business, or property of the college by the corporation or any of its officers or trustees. Brenau College has never and does not now conduct or carry on any of its operations or hold or own any of its property for the purpose of trade or profit, and it has no capital stock, and no dividends have been paid to any person whatsoever from the operation or business or property of the corporation.
On October 23, 1917, Brenau Association executed and delivered to Brenau College a deed to a certain tract of land. The granting clause of the deed is as follows:
"For and in consideration of the sum of one dollar (1.00) and in further consideration of the covenants and conditions hereinafter set forth, the said party of the first part has bargained, sold, conveyed, and by these presents does bargain, sell, and convey unto said party of the second part, forever, in fee simple, but in trust and for the purpose hereinafter set forth, the following described property" (describing the land).
The conditions enumerated in the deed are: (1) The property is to be held in trust by the grantee in perpetuity for educational purposes; (2) courses of study must be offered leading to the A. B. degree, and such standards maintained as will admit graduates into the graduate schools of the University of Georgia and institutions of similar grade; (3) the grantee is to assume the payment of the present bonded indebtedness of the grantor upon the property conveyed, amounting to $60,000 principal, with interest at 6 per cent, per annum, as the same matures annually from 1917 to 1926, inclusive; (4) the grantee is to raise an endowment of not less than $200,000 within a period of 10 years from the date of the deed, said fund to be held in trust in perpetuity by the grantee, and the interest therefrom to be used in the support of the college, in the discretion of its trustees. The deed contains a covenant that no profit it to be derived from the use of the property by any person or persons, corporation or corporations, but that all income shall be used by the grantee solely for educational purposes, Including the improvement of the property, payment of salaries of teachers, etc. The deed further provides that in the event the grantee should fail to pay the annual installments of principal and interest due on said bonded indebtedness, or should fail or refuse to raise the endowment of $200,000, then and in that event the "said title to said property heretofore granted shall revert to the said party of the first part [Brenau Association] or its assigns, and said title to said property shall reinvest in the said Brenau Association or its assigns of said reversion, and the said Brenau College hereby pledges itself in that event to reconvey said property to said party of the first part or its assigns." The concluding clause in the deed provides that the grantee shall not create any indebtedness upon the property conveyed, or give, lease, or make any other disposition of the same, without the written consent of the grantor, or its assigns, "until and after the conditions of this deed have been fulfilled." The deed, signed by both Brenau Association and Brenau College, was recorded on December 19, 1917. All land described in the deed is used exclusively as a college site by Brenau College, and was so used during the year 1918. The execution for ad valorem taxes was levied upon a portion of the land described in the deed. Brenau Association has paid all taxes for the year 1918 on all its property except the land described in the deed. Brenau College has in good faith complied with all the covenants, conditions, and obligations assumed by it in the deed from Brenau Association, and is not in default as to any of the same. The court granted the injunction as prayed, and the defendant excepted.
C. N. Davie, of Gainesville, for plaintiffs in error.
W. A. Charters and H. H. Perry, both of Gainesville, for defendants in error.
GEORGE, J. (after stating the facts as above). Two questions only are raised by this record, and we deal with them in the order made.
1. It is contended that the effect of the deed from Brenau Association to Brenau College, referred to in the statement of facts, is not to vest the title to the property in Brenau College; that it to say, it is contended that the conditions enumerated in the deed are to be construed as conditions precedent and not as conditions subsequent. Particularly it is insisted that the third condition, the assumption of the indebtedness on the property, is in the nature of a consideration, and hence is a condition precedent. If a condition subsequent, it is conceded that the mere possibility of reverter which remains in Brenau Association is not an estate in land and is not subject to taxation. See Moss v. Chappell, 126 Ga. 196, 54 S. E. 968, 11 L. R. A. (N. S.) 398; Wadley Lumber Co. v. Lott, 130 Ga. 135, 138, 60 S. E. 836; 1 Warvelle on Vendors (2d Ed.) 521. Under the Code:
"An estate may be granted upon a condition, either express or implied, upon...
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