Old Mission Peninsula School Dist. v. French

• Decision Date: 01 March 1961
• Docket Number: No. 93,93
• Parties: OLD MISSION PENINSULA SCHOOL DISTRICT, a municipal corporation, Plaintiff and Appellee, v. Frank A. FRENCH and Alice B. French, husband and wife, and/or their unknown heirs, devisees and assigns, and all persons who might claim under the persons named, or either of them, any dower or homestead right, whether vested or inchoate, defendants and Appellants.
• Court: Michigan Supreme Court

Page 758

107 N.W.2d 758

362 Mich. 546

OLD MISSION PENINSULA SCHOOL DISTRICT, a municipal

corporation, Plaintiff and Appellee, v. Frank A. FRENCH and Alice B. French, husband and wife,

and/or their unknown heirs, devisees and assigns, and all

persons who might claim under the persons named, or either

of them, any dower or homestead right, whether vested or

inchoate, defendants and Appellants.

No. 93.

Supreme Court of Michigan.

March 1, 1961.

Charles H. Menmuir, Traverse City, for appellants.

Williams, Griffin, Thompson & Coulter, by K. E. Thompson, Traverse City, for appellee.

Before the Entire Bench.

EDWARDS, Justice.

The subject of this litigation is a 50-year-old frame schoolhouse and the 1-acre plot of ground on which it stands. The land in question was sold to the predecessor of plaintiff school district by Frank A. and Alice B. French in 1893 for the sum of $50. The school was built thereafter and was used until consolidation of smaller districts into plaintiff district occasioned its abandonment in 1954.

When the plaintiff school district advertised this property for sale it received a bid of $4,300, conditioned upon its bringing a successful suit to quiet title. Thereupon plaintiff filed suit by publication under the unnamed parties defendant statute (C.L.1948, § 612.20 [Stat.Ann. § 27.672]) against the heirs of the grantors, Frank A. French and Alice B. French, both of whom had long since died.

The Frenches' 4 children, their sole heirs-at-law, then appeared and, basing their action upon a pre-emption clause in the original 1893 deed, tended into court $50 for the land, plus $50 salvage or the fail value of the buildings as found by the court. When this offer was not accepted by plaintiff they filed an answer and cross-bill seeking specific performance of the pre-emption agreement.

The relevant clauses in the 1893 deed relied upon by defendants are as follows:

'Provided that in case said school district should desire to sell said lot at any time said grantors shall have the right before all others to buy said lot at the same price now received for same, to-wit, $50, the buildings thereon to be also paid for by said grantors at a fair price in addition to said $50.

'Together with all and singular the hereditaments and appurtenances thereunto belonging or in anywise appertaining.

'To Have and to Hold the said premises as herein described, with the appurtenances, unto the said party of the second part, and to its heirs and assigns, Forever. And the said Frank A. French and Alice B. French, his wife, parties of the first part, their heirs, executors and administrators do covenant, grant, bargain and agree, to and with the said party of the second, part, its heirs and assigns, that at the time of the ensealing and delivering of these presents they are well seized of the above granted premises, in Fee Simple; that they are free from all encumbrances whatever; and that they will, and that their heirs, executors and administrators shall Warrant and Defend the same against all lawful claims whatsoever.'

At the hearing, the value of the building was variously estimated at between $1,500 and $2,500, and at the conclusion defendants tendered into court a total of $2,550.

The circuit judge rendered an opinion holding that the pre-emption clause was reserved to the grantors personally, and hence was extinguished on their death. He also held that plaintiff had had more than 15 years' adverse possession. A decree was entered quieting title in plaintiff school district and denying defendants' cross-bill, from which decree defendants appeal.

We agree with appellants that there could be no adverse possession until the pre-emption clause was invoked by a decision of the school district to sell the property. Hence, we view the decisive question as being whether or not the circuit judge erred in holding that the pre-emption agreement 'created an option right exercisable only by said Frank A. Franch and Alice B. French, or the survivor of them.'

A pre-emptive clause is one, generally found in a deed, which requires that before the subject property may be sold to others it must first be offered at specified terms to a particular person or persons who have the right to buy or reject it. 6 American Law of Property, § 26.64.

Such a clause obviously could be drafted so as clearly to express the intent of the parties to make the right of pre-emption either personal or descendible. In the latter instance, of course, the right would have to be weighed against the common-law prohibition on restraints on alienation (see 4 Restatement, Property, §§ 406, 413), and the rule against perpetuities (see Windiate v. Lorman, 236 Mich. 531, 211 N.W. 62; Windiate v. Leland, 246 Mich. 659, 225 N.W. 620; and compare P.A.1949, No. 38 [C.L.S.1956, §§ 554.51-554.53, Stat.Ann. §§ 26.49(1)-26.49(3)], effective September 23, 1949).

In the former instance, the right, of course, would terminate with the death of the person or persons possessing it.

No such clarity of purpose may be found in the express language of this deed. The directly relevant language of the deed provides, 'said grantors shall have the right before all others.' While these words, standing alone, appear to support the position of the appellee and the circuit judge as to the personal character of the right, they must be read with the Michigan statute eliminating the requirement of words of heirship in mind (C.L.1948, § 565.153 [Stat.Ann.1953 Rev. § 26.573], effective 1881).

See, also, C.L.1948, § 554.35 (Stat.Ann.1957 Rev. § 26.35), effective 1847, and C.L.1948, § 554.101 (Stat.Ann.1957 Rev. § 26.47), effective 1931.

Thus, in seeking the intention of the parties, we must turn to the nature of the transaction, and to the other provisions of the deed.

The deed before us is in basic purpose a warranty deed conveying a fee-simple estate from the former owners to a school district. It retains nothing in the grantors except the possibility of a pre-emption on the happening of a condition.

Significantly, twice repeated in the warranty clause which the drafter employed, we...