Rudolph v. Bennett

• Decision Date: 03 September 1918
• Docket Number: 4288
• Citation: 168 N.W. 753,41 S.D. 24
• Parties: O. A. RUDOLPH and E. Wendt, Plaintiffs and appellants, v. MILLARD BENNETT, et al., Trustees of the Lincoln County Agricultural Society, Defendants and respondents.
• Court: South Dakota Supreme Court

41 S.D. 24

168 N.W. 753

O. A. RUDOLPH and E. Wendt, Plaintiffs and appellants,

v.

MILLARD BENNETT, et al., Trustees of the Lincoln County Agricultural Society, Defendants and respondents. South Dakota Supreme Court Appeal from Circuit Court, Second Judicial Circuit Court, Lincoln County, SD Hon. Louis L. Fleeger, Judge #4288--Affirmed A. B. Carlson Attorneys for Appellants. Brown & Brown, Kennedy & Kennedy Attorneys for Respondents. Opinion filed Sept. 3, 1918. Rehearing denied November 4, 1918

POLLEY, J.

Defendants are the trustees and successors in interest of the Lincoln County Agricultural Society, a domestic corporation, whose charter had expired by limitation of time, prior to the commencement of this action. On and prior to the 30th day of March, 1895, plaintiffs were the owners of a 20-acre tract of land situated within or adjoining the city of Canton. On said 30th day of March, 1895, plaintiffs executed a certain deed by which they conveyed said tract of land to the said Lincoln County Agricultural Society. The 'portions of said deed that are material to a determination of the questions presented, on this appeal are as follows:

"For and in consideration of the sum of one dollar to them in hand paid by the Lincoln County Agricultural Society, ... and the covenants, restriction's, and limitations, hereinafter mentioned, which covenants, restrictions, and limitations from the base of the consideration of the grant hereinafter mentioned, and govern and control the vesting of the title to the land hereinafter described, to hereby grant, bargain, sell, and convey, subject to the restrictions and limitations hereinafter specified as aforesaid, unto the said party of the second part, its successors and assigns, the following described real estate: ... To have and to hold the same, together with all the hereditaments and appurtenances thereunto belonging or in any wise appertaining, excepting as hereinafter expressly excepted, reserved, restricted, and limited, to the said party of the second part, its successors and assigns, forever. And the said parties of the first part ... covenant with the party of the second part: ... Provided, always, and this grant or deed of conveyance is made subject to the exceptions, reservations, restrictions, and limitations herein specified, to wit: ...

"2. The said Lincoln County Agricultural Society, the said party of the second part, shall use the premises hereinafter described, for the purposes of an agricultural fair or other legitimate amusements under the direction of the board of directors of said association only, and shall further cause to be held once in each year for twenty consecutive years from the date hereof an agriculture exhibition fair upon said premises.

"3. That in the event of the failure of said second party to have such agricultural exhibition fair upon said premises for five consecutive years during said period of twenty years, then and in that event the title to the above-described land and premises shall vest absolutely in the city of Canton, Lincoln county, South Dakota, immediately upon the happening of the aforesaid event as fully and effectually to all intents and purposes as if this grant had originally been made to the said city of Canton, subject only to the restriction that the city of Canton shall hold and use the said premises for a public park forever."

It is admitted that an agricultural exhibition was held upon the said premises by the said society as prodded for in paragraph 3 above set out, but it is alleged in the complaint that the defendants, as the trustees of the above-named agricultural society now threaten to, and are about to, divert the said property from the uses for which it was...