McManaway v. Clapp

• Decision Date: 29 April 1929
• Docket Number: 12647.
• Citation: 148 S.E. 18,150 S.C. 249
• Parties: McMANAWAY v. CLAPP.
• Court: South Carolina Supreme Court

148 S.E. 18

150 S.C. 249

McMANAWAY v. CLAPP.

No. 12647.

Supreme Court of South Carolina

April 29, 1929

Appeal from Common Pleas Circuit Court of Greenville County; M. L Bonham, Judge.

Action by H. B. McManaway against George W. Clapp. Judgment for plaintiff, and defendant appeals. Affirmed.

The master's report is as follows:

"The above entitled case was referred to me with directions to take the testimony and report my findings of fact and conclusions of law with leave to report any special matter.

"I held a reference and took the testimony which is transmitted herewith along with an agreed statement of facts.

"This is an action brought by the plaintiff against the defendant for the specific performance of a written contract for the purchase and sale of a certain lot of real estate on Howe Street in the City of Greenville, S.C. This lot is separated by Howe Street from the main portion of the campus of Furman University and extends back to a small creek. The defendant agreed to buy this lot of land at a consideration of $2,750.00; declined to accept a deed to said lot which was tendered to him on the ground that the plaintiff did not have a marketable title. The principal objection to the title is that under the trust provisions in the deed from Vardry McBee to The State Convention of the Baptist Denomination of South Carolina in 1851 defendant claims that Furman University had no right to sell the lot in question. The provision in said trust deed is as follows:

"'In trust and to use of Furman University for educational purposes connected with the said Furman University and for no other purpose whatsoever. That is to say that the said The State Convention of the Baptist Denomination in South Carolina shall henceforth and forever permit and suffer the said Furman University to hold, possess and enjoy the said tract or parcel of land as a site and location for all colleges, academies, school houses, professors' houses and other buildings or matters of any kind whatsoever necessary for or connected with the educational purposes of the said Furman University.'

"Defendant also raised the question that Furman University had no title to the property and that the title was in The State Convention of the Baptist Denomination in South Carolina.

"This case depends on the construction of the trust provisions set forth above. The object of the construction of a deed is to ascertain the intention of the parties; and the intention is to be gathered from a consideration of the language used in the entire instrument. Pope et al. v. Patterson, 78 S.C. 334, 58 S.E. 945; Crawford et al. v. Atlantic Coast Lumber Co., 79 S.C. 166, 60 S.E. 446; Atlanta & C. A. Ry. Co. v. Victor Mfg. Co., 93 S.C. 397, 76 S.E. 1091.

"The parties to a deed are presumed to intend that it grant all that is necessary to enjoy the right conveyed. Thomas v. Greenville-Carolina Power Co., 105 S.C. 268, 89 S.E. 552.

"Conditions subsequent in conveyances are not favored, because they serve to defeat estates and an unexpressed term will not be imported into such condition on which to claim a breach. Such conditions are construed strictly against the grantor and can only be created by apt language. 10 R. C. L. 664; Wilmore Coal Co. v. Brown (C. C. Pa. 1906) 147 F. 931, decree affirmed (1907) Brown v. Wilmore Coal Co., 153 F. 143, 82 C. C. A. 295; Fitzgerald v. Modoc County, 164 Cal. 493, 129 P. 974, 44 L. R. A. (N. S.) 1229; Central Christian Church v. Lennon, 59 Wash. 425, 109 P. 1027.

"An important consideration in determining whether a clause is a condition subsequent or something else is the presence or absence of a re-entry clause by the grantor or his heirs, or of forfeiture of the estate for breach of condition. Koch v. Streuter, 232 Ill. 594, 83 N.E. 1072; Freer v. Glen Springs Sanitarium Co., 131 A.D. 352, 115 N.Y.S. 734, judgment affirmed 198 N.Y. 575, 92 N.E. 1085, rehearing denied 198 N.Y. 602, 92 N.E. 1085.

"In Thompson v. Hart, 133 Ga. 540, 66 S.E. 270 in a deed where the consideration of the grant was expressed as 'for the furtherance of the cause of religion and good morals in the community, and the sum of One Dollar,' and a clause providing that the premises shall be used as a place of Divine Worship of a Methodist Church, it was held that this could not be construed as a grant on a condition subsequent. And in the case of Soria v. Harrison County, 96 Miss. 109, 50 So. 443 the provisions of the deed were: 'The land hereinafter described shall be kept by said board of police for the use of a courthouse and jail for the benefit of said county' and 'to have and to hold the same, *** for the use of said county as aforesaid.' The court held that these provisions did not create a condition subsequent, so as to cause the land to revert on the county removing the court-house and jail and exposing the property for sale.

"At the time of the deed in question Greenville was only a village and the price of $150.00 per acre paid for the land in question was very probably an ample consideration at that time. This is further evidenced by the fact that in 1871 the original grantor Vardry McBee repurchased a portion of said land at $200.00 per acre. The grant is not upon condition of being void in case the land should cease to be used for the purpose mentioned. On the other hand, the conveyance expresses the purposes for which the land was purchased. The conveyance was to The State Convention of the Baptist Denomination in South Carolina (a corporation duly chartered by Act of the Legislature) in trust for the use of Furman University for educational purposes and for no other purpose, that is to say, to permit Furman University to hold and enjoy the said land as a site for its college and school buildings, professors' houses and other buildings or matters connected with the educational purposes of said University. The

deed then expresses the purposes for which the land was purchased and conveyed. The grant is not upon condition 'to be void in case the property should cease to be used for these purposes.' If this had been the intention, the parties would have so expressed it. Forfeitures are not encouraged, and will be allowed only where the intent is clear and no other reasonable construction is possible. It is manifest that Vardry McBee intended to part with all the title to the land; that he did not intend to reserve to himself and his heirs any interest, reversionary or otherwise. The purchase was being made with money which doubtless had been contributed by some person or persons for educational purposes. It was but proper that when this money was invested in land, the purpose for which it was contributed should be expressed in the deed of conveyance, and doubtless was inserted at the request of the purchasers. In fact, all property owned by the schools and colleges of our country is for educational purposes. They have no right to use this property for any other than educational purposes, but this fact does not involve any restrictions upon their control, or their power of disposition.

"The deed in question did not convey the land upon conditions subsequent but rather set forth the purpose of conveyance, that is to say, that Furman University has the right to use said property for educational purposes or any other similar matters connected with the University. There are numerous authorities which bear out this construction of the deed. In Packard v. Ames, 16 Gray (Mass.) 327, the court said that it knew 'of no authority by which a grant could declare to be for a specific purpose without other words and be held to be a condition.'

"And in Neely v. Hoskins, 84 Me. 386, 24 A. 882, a conveyance to a bishop of the Protestant Episcopal Church and his successors, made on a valuable consideration 'upon the condition that it shall be forever held for the use of the Protestant Episcopal Church,' was held to create a trust and not a condition subsequent.

"In Griffitts v. Cope, 17 Pa. 96, a devise in trust for a society of Quakers forever to build a meeting-house upon the premises if the members of that meeting shall agree to build a meeting-house but not else, was held not to create a condition subsequent as to the continuing use of the premises for that purpose.

"A deed in trust for the use of a religious society and for the benefit of the poor, and a place of worship and burial, made on a valuable consideration, was held not to limit the title. Brendle v. German Reformed Cong. of Jackson Twp., 33 Pa. 415.

"And a conveyance in trust to the grantees to build a house of worship for a religious society and at all times to permit members of that church to preach therein does not create a condition subsequent. Strong v. Doty, 32 Wis. 381, Re Sellers Chapel M. E. Church, 139 Pa. 61, 21 A. 145, 11 L. R. A. 282.

"And a deed for valuable consideration in trust to permit all the white religious societies and Christians in a certain place to use the land as a common burying ground, and for no other purpose, was held not to be made on a condition subsequent. Brown v. Caldwell, 23 W.Va. 187, 48 Am. Rep. 376.

"And a deed 'for the purpose of erecting a church thereon only' this clause following a description of the property, where there was no actual consideration paid, does not create a condition subsequent. Farnham v. Thompson, 34 Minn. 331, 26 N.W. 9, 57 Am. Rep. 59. Neither does a deed of land 'for the erection of a hall for the use of' a historical and geological society. Wilkes Barre v. Wyoming Historical & G. Soc., 134 Pa. 616, 19 A. 809.

"A deed in consideration of $1 and of affection, making an absolute conveyance in fee in trust to the use of certain congregation cannot be held to create a condition because of the lack of

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