Ryan v. Porter

• Decision Date: 08 February 1884
• Docket Number: Case No. 1594.
• Court: Texas Supreme Court
• Parties: HILLARY RYAN v. M. H. PORTER.

61 Tex. 106

HILLARY RYAN

v.M. H. PORTER.

Case No. 1594.

Supreme Court of Texas.

Feb. 8, 1884.

APPEAL from Burleson. Tried below before the Hon. I. B. McFarland.

January 13, 1880, appellee brought trespass to try title against appellant and Dock Sharp, to recover twenty acres of land adjacent to the town of Caldwell. He claimed title as follows:

1st. Conveyance from L. L. Chiles to W. J. Hill and six others as trustees, enumerating the following trusts:

(1) That they should erect on said premises a dwelling-house and fixtures for the use and occupancy of the married itinerant preachers of the Methodist Episcopal Church South, who may from time to time be stationed on the circuit which includes the premises.

(2) That said trustees shall at all times permit such married itinerant preachers to occupy said premises during the term of their appointment.

(3) That trustees shall be appointed in the manner provided in the deed.

(4) That money for carrying out the trust, for which the trustees may have become responsible and have been obliged to pay, may be raised by a mortgage on the premises, or by the sale of the premises if such debt is not paid within one year after notice to the preacher in charge of the circuit.

2d. Deed from Phillip B. Scott and others as trustees to appellee, dated December 10, 1879.

Appellant claimed the land by deed from Emily Chiles and R. A. Higgins, executors of L. L. Chiles, deceased, dated June 6, 1877, claiming that the deed to Hill and others was a grant upon an implied condition subsequent which had not been complied with, and that therefore the estate had become forfeited, and vested in the estate of the grantor, who was then dead.

The trustees intervened, but asserted no right. Upon the trial the court rendered judgment for appellee for the land, etc., from which Ryan took this appeal.

The propositions discussed in the opinion are as follows:

1st. The deed under which Porter, the appellee, claimed title to the premises in controversy conveyed an estate upon condition, subject to be defeated by an abandonment of the premises for the purposes of the trust.

2d. The court erred in rendering judgment for the appellee, being plaintiff in the court below, against the defendant in possession, because it appeared from the agreed statement of the facts proven, that the pretended sale to him was collusively made in fraud of the trusts in the deed from Chiles to W. J. Hill and others.

Sayles & Bassett, for appellant, cited: 4 Kent's Com., 125-130; Hayden v. Inhabitants of Stoughton, 5 Pick., 528; Gray v. Blanchard, 8 Pick., 283; Austin v. Cambridgeport Parish, 21 Pick., 215;Guild v. Richards, 16 Gray, 309;Jackson v. Blanchard, 3 Cowen, 221; Police Jury v. Reeves, 18 Mart. (La.), 221; Pasch. Dig., 1373, 4621; McMullen v. Guest, 6 Tex., 275;Carder v. McDermett, 12 Tex., 552;Secrest v. Jones, 21 Tex., 121;Campbell v. Everts, 47 Tex., 102.

Hume & Shepard, for appellee, cited: Hart. Dig., art. 169; Pasch. Dig., art. 999; R. S., art. 551; Bell County v. Alexander, 22 Tex., 358;Guild v. Richards, 16 Gray, 309;Stanley v. Colt, 5 Wall., 119;Packard v. Ames, 16 Gray, 327-29; Perry on Trusts, § 744; Meade v. Ballard, 7 Wall., 290;Hadley v. Hopkins Academy, 14 Pick., 253; Sanderson v. White, 18 Pick., 233-34.

WATTS, J. COM. APP.

In the absence of constitutional provisions or statutory enactments the common law is the rule of decision in this state. And in construing written instruments the recognized canons of construction of the common law and chancery courts, when not abrogated or modified by statute, will be applied. There is no statute affecting the rules applied by the courts named to the construction of instruments, with a view to determine whether or not they are made upon implied conditions subsequent. Art. 551 of the Revised Statutes, cited by appellees, has reference to the quantity and not the quality of the estate granted.

Implied conditions subsequent in grants, devises, etc., are not the favorites either of the courts of law or equity, but are discouraged by both, as that doctrine is usually invoked for the purpose of securing a forfeiture of the estate. If the instrument will bear any reasonable construction that will defeat the springing of an implied condition subsequent, at law as in equity, that construction will be adopted. Estates upon implied conditions subsequent cannot be created by deed, except where the terms of the grant will not admit of any other reasonable construction. 2 Washb. on Real Prop., 4.

Chief Justice Bigelow observed, in Rawson v. Inhabitants, etc., of Uxbridge, 7 Allen, 127, “It is said in Shep. Touchstone, 126, that ‘to every good condition is required an external form,’ that is, it must be expressed in apt and sufficient words, which according to the rules of law make a condition; otherwise it must fail of effect. This is especially the rule applicable to the construction of grants. A deed will not be construed to create an estate on condition, unless language is used, which, according to the rules of law, ex proprio vigore, imports a condition, or the intention of the grantor to make a conditional estate is otherwise clearly and unequivocally indicated. Conditions subsequent are not favored in law.”

There is no condition subsequent expressed in the deed from Chiles to the trustees, etc.; nor does the grantor therein use any of the apt words or forms of expression that are considered in law as implying a condition subsequent; and there is no clause of nullity, or any declaration to the effect that the deed is to be considered void for the failure of the trustees or others to do, or not to do, any particular act.

The declared object is, that the property is to be used for a specific purpose; by the grant Chiles intended to accomplish that particular purpose. Those upon whom the benefit was intended to be conferred, as a class, are worthy of his generosity. Itinerant Methodist ministers, devoting, as they do, all their time and talents to the good of humanity, often regardless of physical comforts, and deprived of the pleasures of an established home, were intended to be benefited by the grant. The deed contains the following provision: “In trust that they shall erect on the said lot a dwelling-house and fixtures for the use and occupancy of the married itinerant preachers of the Methodist Episcopal Church South, who may from time to time be stationed on the Nashville circuit or that circuit or station which shall include said premises.”

It is here claimed that, as the grantor directed the property to be used in a particular way, and for the purpose named, and impliedly it was to be used for no other purpose or in any other mode than that specified, therefore a condition subsequent must be implied, to the effect, should the property ever cease to be used for the purpose mentioned, that it would then revert to the grantor or his representatives. Certain authorities are cited as sustaining that proposition. Of the adjudicated cases, most nearly in point and tending to that conclusion is Hunt v. Beeson, 18 Ind., 381. There, Hunt laid out a town upon his own land, and caused the plat to be recorded. The lot about which the controversy arose was thus marked upon the plat: “James Pugh's tan-yard lot.” In the notes explanatory of the plat, and forming part of it, was the following statement: “Lot No. 4, in square No. 1, is donated by Miles Hunt, Jr., to James Pugh, for the purpose of erecting a tan-yard on it.” Under the statutes of that state, this was held to be a grant to Pugh of the lot named. The statute provided “that every donation or grant to the public, or any individual, etc., marked or noted as such on the plat of the town, shall be considered to all intents and purposes a general warranty to the said donee or donees, grantee or grantees, for his, her or their use, for the purposes intended by the donor,” etc. And Pugh, having accepted the donation, it was also held that it operated as a grant to the latter of the lot in question, with a condition subsequent implied, and that he had a reasonable time in which to comply with that condition. And the use of the lot as a tan-yard for twenty-four years was a reasonable compliance with the condition.

The case of Hayden v. Inhabitants of Stoughton, 5 Pick., 528, cited by the court in Hunt v. Beeson, and also by counsel for ...