School Comm. of Providence Twp. v. Kesler

• Decision Date: 30 June 1872
• Citation: 67 N.C. 443
• Court: North Carolina Supreme Court
• Parties: THE SCHOOL COMMITTEE OF PROVIDENCE TOWNSHIP v. TOBIAS KESLER and others.

67 N.C. 443

THE SCHOOL COMMITTEE OF PROVIDENCE TOWNSHIP

v.TOBIAS KESLER and others.

Supreme Court of North Carolina.

June Term, 1872.

According to the Constitution and the legislation in reference to Common Schools, the school committees of townships are the successors of the school committees of the districts under the former system, and are entitled to all the property, and subject to all the liabilities of their predecessors.

A clause in a deed “as long as the system of Common Schools shall be continued at that place, or as long as it shall not be applied to any other purpose except for schools, of any kind,” is not expressed in apt and proper terms to create a condition, or qualification of the estate coaveyed, or even a covenant to run with the land.

A base or qualified fee has never been in use or in force in this State, or recognized by its laws; and a condition or qualification in a deed, conveying an estate to a school committee “as long as the system of common schools shall be continued, &c.,” is contrary to public policy, repugnant, and inconsistent with the nature of the grant, and therefore void.

If a grantee, although an illiterate man, executes a deed without demanding that it be read, or elects to waive a demand for the reading, the deed will take effect.

[ Carson v. Commissioners of Cleaveland, 64 N. C. 566; Blount v. Harvey, 6 Jones 186; Norfleet v. Cromwell, 64 N. C. 1, cited and approved.]

CIVIL ACTION, tried before Cloud, J., at Spring Term, 1872, of ROWAN Superior Court.

The action was brought to recover damages to a school house.

Plaintiff exhibited a deed from the defendant Kesler to the school committee of District 38, in Rowan county, dated Nov. 27th, 1848. This evidence was objected to, but received by the Court. This deed was made to Samuel Peeler and others, whose names are set out in the deed, School Committee of the 38th district of common schools and their “successors in office &c;” and the habendum clause is, “To have and to hold &c., as long as the system of common schools shall be continued at that place, or as long as it shall not be applied to any other purpose except for schools of any kind.”

Plaintiff proved that the deed embraced the locus in quo, and that it was within the limits of Providence township. The alleged trespass by the defendants was also proved.

Defendants introduced Tobias Kesler, the maker of the deed. He stated that he was an illiterate man, and at the time he signed the deed he could not read one-fourth of it, and he did not see any interlineation, “or schools of any kind.” That he requested Peeler, who brought the deed, to read it. Peeler said, he could not read it, but had heard it read, and it carried out the contract with the School Committee. Witness then signed. He was allowed to state what the contract was, independent of the deed, though objection was made by the plaintiff. It was, that the land to be conveyed was to be used for school purposes, as long as the present system of common schools should continue. Plaintiff proved that the school house had been used by the old School Committee for 25 or 30 years, and continuously up to the adoption of the new system. That in the year 1870, a free school had been taught in the house for two months. Defendants' counsel requested, in writing, special instructions. These special requests are eleven in number, but as the important exceptions are repeated, and discussed in the opinion of the Court, it is unnecessary to set out the others.

There was a verdict and judgment for the plaintiff and defendants appealed.

Henderson and Kerr, for the plaintiff .

Blackmer & McCorkle and Bailey, for the defendants .

PEARSON, C. J.

Many points were made in the Court below, but we will notice only the three that were urged on the argument here.

1. The deed, under which the plaintiff makes title, conveys the locus in quo, to the School Committee of the thirty-eighth district of common schools and their successors in office, of the county of Rowan. The deed was executed in 1848, and the plaintiff is not the successor of the school committee existing at that date.

We think it entirely clear, that the plaintiff is the successor of the School Committee of the thirty-eighth district of common schools of the county of Rowan, existing at the date of the deed, and as such successor, is entitled to all of the property, and is subject to all of the liabilities of its predecessor, according to the Constitution and legislation in regard to common schools; in the same way that the Commissioners of a county are the successors of the justices of the county, under the old system, in regard to the executive duties, rights and liabilities of such justices. Carson v. Commissioners of Cleaveland, 64 N. C. 566. Indeed, our case is stronger; for the functions of the Justices of the Peace, as a corporation, were divided; its judicial functions being transferred to the Superior Courts, and the Courts of Justices of the Peace, while only its executive functions are transferred to the Commissioners of the county: still it is held that the Commissioners of the county, although not the representative of the Justices of the Peace, are the successors of the Justices of the Peace, entitled to their property and liable for their contracts; whereas the functions of the school committees of districts, under the old system are all transferred to the school committees of the townships, and are incidental departures form the exact limits of the district. This can make no difference, provided the township includes the school house and is substantially the same territory or section of the county, as in our case.

2. The deed contains this qualification: “As long...