Pickle v. McKissick

• Decision Date: 01 May 1853
• Citation: 21 Pa. 232
• Parties: Pickle versus McKissick.
• Court: Pennsylvania Supreme Court

21 Pa. 232

Pickle versus McKissick.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Lancaster county.

COPYRIGHT MATERIAL OMITTED

Stevens, for plaintiff.—It was said that McKissick, the plaintiff, was not only a trustee, but was one of the original contributors. That the trustees had the management of the property. It was contended that the declarations and admissions of a party to the suit relative to the subject-matter of the controversy, whilst he was interested in the title, were evidence, whether he sued in his own right or in the right of another: 3 W. & Ser. 373, Harrisburg Bank v. Tyler; 4 Ser. & R. 317, Magill v. Kauffman; 2 Barr 371, Rossiter's Appeal; 7 Term Rep. 664; 1 Ph. Ev. 90-91; 1 Greenl. Ev. sec. 172.

It was said that on the former trial the main question was whether the sheriff's deed conveyed any title. The evidence of misuser was not so extensive as given on this trial. On this trial it was proved that the whole building, except the walls, had been changed. That it had been converted into a dwelling-house; that portions of the lot had been fenced and cultivated. The Court erred in supposing the evidence on the two trials to be similar. Though conditions in law or implied conditions may not be sustained in Pennsylvania, yet conditions in fact or express conditions are to be sustained. Contracts are not to be violated. The condition in this case is plain, and it was proved that for seven years the property granted had been used as a dwelling-house, &c. Though this is a charity, yet contracts are not to be violated in favor of a charity.

Frazer, for defendant.—The declarations of the trustees could not affect the beneficiaries: 5 Watts 493, Martin v. McCord; 4 Harris 149, a former report of this case.

It was said that the mode and manner of the enjoyment of the building, was permitted merely from motives of humanity; the tenancy at will subsisting. Reference was made to the argument of the case in Supreme Court, 4 Harris 144-5.

The opinion of the Court was delivered by BLACK, C. J.

The land in dispute was conveyed in 1819 to trustees, to be used as a school-house and place for religious meetings, and a burying-ground. The deed contained an express condition that if it should be converted to any other use, the estate should revert to the grantor. The present plaintiff is the surviving trustee, and the defendant, alleging the condition to have been broken, claims under the grantor.

The cause was here before on a state of facts very nearly similar to that which appears now, the only difference being that the evidence of conversion is somewhat stronger. This Court then held that the grant being a charity on which the law looks with favor, could not be forfeited by nonuser, and not for misuser unless it was strictly proved; that the condition could only be broken by a permanent conversion of it to purposes not mentioned in the deed; and that the occasional use of it for other purposes would not work a forfeiture. We go as far as this, and further too. It might have been added that no improper use of the property could be taken advantage of as a breach of the condition, unless such use was...