St. Peter's Church v. Bragaw

• Decision Date: 12 March 1907
• Citation: 56 S.E. 688,144 N.C. 126
• Parties: ST. PETER'S CHURCH v. BRAGAW.
• Court: North Carolina Supreme Court

56 S.E. 688

144 N.C. 126

ST. PETER'S CHURCH v. BRAGAW.

Supreme Court of North Carolina

March 12, 1907

Appeal from Superior Court, Beaufort County; McNeill, Judge.

Controversy between St. Peter's Church and John G. Bragaw, Jr. submitted without action. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Where part of the co-tenants of property unite in a deed, and the grantee retains possession claiming title for the statutory period, it acquires title as against the remaining co-tenants.

This is a controversy without action, submitted under Revisal 1905, § 803, to determine the validity of plaintiff's title to realty which it had contracted to sell to the defendant, and which is a part of two lots in Washington originally owned by Thomas A. McNair, deceased, and devised by him as follows "I require my executor to give to some religious denomination of good standing who will accept them, two lots adjoining two lots I gave my sister Pauline, one in the continuation of Main street, and one in the continuation of Second street, in the town of Washington, N. C., including the graveyard, on condition that they keep the said graveyard sacred. I appoint my nephew, William T. Tannahill, my executor." The executor died without having given or conveyed the lots to any one. On February 22, 1886, the heirs of Thomas A. McNair, other than W. G. Telfair and Ed Telfair, for the consideration of $1, conveyed the said two lots to the plaintiff by deed duly executed and sufficient for that purpose, with full covenants of seisin, warranty, and against incumbrances. The deed contained this provision, which was inserted after the covenants: "In the conveyance of this property to the parties of the second part, they are required, first, to inclose the tomb of Augustus Harvey and wife with an iron railing; second, they shall not allow this property to be used as a cemetery; third, in case the parties of the first part should abandon said property, it shall revert to the McNair heirs, parties of the first part." The plaintiff contracted to sell, and the defendant to buy, a part of the said two lots fronting 52 feet on Second street and extending back with that width and parallel with Academy street 175 feet; the consideration being $1,500. It is admitted that, "since the execution of said deed [by the heirs of McNair to it], the plaintiff has had continuous, open, actual, and adverse possession of the said land, claiming it as its own against all parties," and that it is a religious society or corporation, and is vested by law with full power to take, hold, and dispose of real and personal property. At the time of the execution of the deed from some of the heirs of McNair to the plaintiff, the two heirs who did not sign the deed, W. G. Telfair and Ed. Telfair, were of full age. The plaintiff has inclosed the tomb of Augustus Harvey and his wife, Susanna Blount, as directed in the will of Thomas A. McNair and in the deed of his heirs to the plaintiff, and has "kept and cared for" the same. The premises have not been used as a cemetery, but for a number of years were used by the board of school trustees of the town of Washington for public school purposes, under a lease from the plaintiff. The schoolhouse, which was built thereon, was destroyed by fire, and all of the lots are now vacant. The plaintiff has determined to use a part of said lots, including that part upon which is the tomb of Augustus and Susanna Harvey, for the purpose of building a rectory, "still reserving and keeping intact the said tombs." The defendant has refused to comply with his part of the contract with plaintiff, upon the following grounds: (1) That all the heirs of Thomas A. McNair did not join in the deed hereto attached, and marked "Exhibit B" (deed to plaintiff). (2) That the plaintiff cannot make him a good title by reason of the third of the clauses in said deed, which come after the covenants of warranty, for that the said clause is a condition subsequent, and that the making of the deed by the plaintiff would be an abandonment of the said property, and that, by the terms of the deed under which the plaintiff holds, the land would revert to the heirs of Thomas A. McNair. It is thereupon agreed by the parties that, if the plaintiff has and can convey to the defendant a good and indefeasible title free from all conditions, trusts, and equities, judgment shall be entered for the plaintiff; otherwise for the defendant. The court, upon consideration of the case, gave judgment for the plaintiff, and the defendant appealed.

Ward & Grimes, for appellant.

Bragaw & Harding, for appellee.

WALKER J. (after stating the case).

It is admitted that the plaintiff has fully complied with the stipulation in the deed as to the inclosure of the tomb of Augustus Harvey and his wife, and it is also admitted that there has not as yet been any violation of the second stipulation, that the premises should not be used as a cemetery. We will again refer to this clause in another connection. The two questions discussed in the briefs of counsel relate to the sufficiency of the adverse possession of some of the heirs of Thomas McNair to bar the right of their co-tenants, W. G. and Ed. Telfair. This subject has been so recently and so fully considered by us that it would seem to require no further discussion. We held, in Dobbins v. Dobbins, 141 N.C. 210, 53 S.E. 870, that adverse and exclusive possession of the common property by one of the tenants, such as that described in this case, will toll the entry and bar the right of his co-tenant, if continued for 20 years.

The other question, as to the abandonment, under the third stipulation, should present no insuperable difficulty. Conditions subsequent, especially when relied upon to work a forfeiture, are strictly construed. Woodruff v Woodruff, 44 N. J. Eq. 353, 16 A. 4, 1 L. R. A. 380. The word "abandonment" has a well-defined meaning in the law which does not embrace a sale or conveyance of the property. It is the giving up of a thing absolutely without reference to any particular person or purpose, and includes both the intention to relinquish all claim to and dominion over the property, and the external act by which this intention is executed--and that is, the actual relinquishment of it--so that it may be appropriated by the next comer. 1 Cyc. 4. "Abandonment must be made by the owner without being pressed by any duty, necessity or utility to himself, but simply because he desires no longer to possess a thing; and further it must be made without a desire that any other person shall acquire the same; for, if it were made for a consideration, it would be a barter or sale, and, if without consideration, but with an intention that some other person should become the possessor, it would be a gift." Stephens v. Mansfield, 11 Cal. 363. That case involved the very question we have in this one, to wit, whether a sale and conveyance of property was an abandonment of it within the meaning of the law. The same court has again said: "There can be no such thing as abandonment in favor of a particular individual or for a consideration, as such an act would be a gift or a sale." Richardson v. McNulty, 24 Cal. 339. When there is a sale or gift, or a transfer in any other mode provided by law, the continuity of the possession is preserved, and the idea of abandonment is necessarily excluded The authorities uniformly construe the word "abandon" as we have done, and distinguish it from a "sale" or "transfer." Black's Law Dict. p. 4; 1 Words & Phrases, pp. 4, 5, 11; M. C. Ditch Co. v. Henry, 39 P. 1058, 15 Mont. 558; Mitchell v. Carder, 21 W.Va. 285; Derry v. Ross, 5 Colo. 300. "There is a great difference," says the court, in Hagan v. Gaskill, 42 N. J. Eq. 217, 6 A. 880, "between abandon and surrender; between abandoning a right or thing and the surrender of such a right or thing to another; between giving it up because it is regarded as utterly useless or valueless, and surrendering, assigning, or transferring it to another as a valuable right or thing. When one surrenders a...