Stuart v. City of Easton

• Decision Date: 04 June 1896
• Docket Number: 18.
• Citation: 74 F. 854
• Parties: STUART v. CITY OF EASTON et al.
• Court: U.S. Court of Appeals — Third Circuit

74 F. 854

STUART v. CITY OF EASTON et al.

No. 18.

United States Court of Appeals, Third Circuit.

June 4, 1896

C Berkeley Taylor and A. S. Freedley, for plaintiff in error.

Aaron Goldsmith and Edward J. Fox, for defendants in error.

Before SHIRAS, Circuit Justice, ACHESON, Circuit Judge, and BUTLER District Judge.

ACHESON Circuit Judge.

This was an action of ejectment by William Dugald Stuart, an alien and subject of the queen of Great Britain, against the city of Easton and county of Northampton, corporations of the state of Pennsylvania.

The county of Northampton was laid out and erected by an act of the general assembly of the province of Pennsylvania passed the 11th day of March, 1752. 1 Dall.Laws, 452. The sixth section of the act provided as follows:

'And be it further enacted, that it shall and may be lawful to and for Thomas Craig, Hugh Wilson, John Jones, Thomas Armstrong, and James Martin, or any three of them, to purchase and take assurance to them and their heirs, of a piece of land situate in some convenient place in the said town (Easton), in trust and for the use of the inhabitants of the said county, and thereon to erect and build a court-house and prison, sufficient to accommodate the public service of the said county and for the case and conveniency of the inhabitants.'

On the 9th day of July, 1762, Thomas and Richard Penn, the proprietaries of Pennsylvania, caused to be issued a warrant of survey, which, after reciting the above-mentioned act, proceeded thus:

'And whereas, on application and request of said trustees, and out of regard to encourage and promote the improvement of the said town, and general good and convenience of the inhabitants of the said county, we have condescended and agreed to grant to the said trustees a lot or piece of ground, of eighty feet square, to be laid out in the center of the great square in the middle of the said town of Easton, for the courthouse for the use and the accommodation of the inhabitants of the said town and county forever.'

And the warrant then directed and surveyor general to survey and lay out the said described lot of ground 'for the public use of a courthouse for the inhabitants of the said town and county.'

This warrant having been duly executed and returned into the land office, a patent was issued on the 28th day of September, 1764, by the proprietaries, to the named trustees for said lot. After reciting the act of assembly and the warrant of survey, the patent proceeds thus:

'Now, know ye, that for the further encouragement and better promoting the public benefit and service of the said town and country, and for and in consideration of the yearly quitrent (one red rose) hereinafter reserved, and of the sum of five shillings to us in hand paid by the said trustees, the receipt whereof is hereby acknowledged, we have given, granted, released, and confirmed, and by these presents do give, grant, release, and confirm, unto the said trustees, John Jones, Thomas Armstrong, James Martin, John Rinker, and Henry Allshouse, and their heirs, the said lot of ground, situate in the center of the great square in the said town of Easton, containing eighty feet in length, north and south, and eighty feet in breadth, east and west. * * * To have and to hold the said hereinbefore described lot of ground, with the appurtenances, unto the said John Jones, Thomas Armstrong, James Martin, John Rinker, and Henry Allshouse, their heirs and assigns, forever; in trust, nevertheless, to and for the erecting thereon a courthouse for the public use and service of the said county, and to and for no other use, intent, or purpose whatsoever.'

By virtue of an act of assembly approved April 15, 1834 (P.L. p. 538), the title of the trustees became vested in the county of Northampton. The Northampton county courthouse was erected upon the said lot of ground between the years 1763 and 1766, and remained upon the lot from that time until 1862, in which year it was removed, and no other buildings have been erected thereon since. On the 25th day of July, 1888, William Stuart, who was the heir at law of Thomas and Richard Penn, caused an entry to be made on the said lot of ground for breach of the condition subject to which, it is alleged, the lot was granted by the above-recited patent, and subsequently he brought this action of ejectment for the recovery of the lot. William Stuart having died after the commencement of the suit, his son, William Dugald Stuart, who succeeded to all the rights of the said William Stuart in and to lands in Pennsylvania, was substituted as plaintiff. Under the instructions of the court below, there was a verdict for the defendants, and afterwards judgment was entered in their favor.

The position taken by the plaintiff in error is that the grant of September 28, 1764, by Thomas and Richard Penn to John Jones and others, 'their heirs and assigns, forever; in trust, nevertheless, to and for the erecting thereon a courthouse for the public use and service of the said county, and to and for no other use, intent, or purpose whatsoever,' did not pass an estate in fee simple, but only a conditional estate, determinable on the cessation of the use of the lot of ground for the designated purpose. Is this a sound view of the conveyance?

It is to be observed that the deed from the Penns recites as the occasion of the grant the act of the general assembly under which, as we have seen, John Jones and others were empowered 'to purchase and take assurance to them and their heirs' of a piece of land 'in trust and for the use of the inhabitants of the said county,' and thereon to erect a courthouse 'for the ease and conveniency of the inhabitants. ' Undoubtedly, the act of assembly contemplated the acquisition of an estate in fee simple only, by the appointed trustees. Now, the conveyance by the Penns is to the named persons, 'their heirs and assigns, forever.' The succeeding words, 'in trust, nevertheless, to and for the erecting thereon a courthouse for the public use and service of the said county, and to and for no other use, intent, or purpose whatsoever,' define the relation between the grantees and the inhabitants of the county of Northampton, and restrain the grantees from any other application of the property than to the avowed object of the grant. The words of the deed are apt words to pass a fee-simple estate as between the grantors and the grantees, and to create a trust as between the grantees and the beneficiaries. There is here no express provision for forfeiting the estate for nonuser, nor is any right of re-entry expressly reserved to the grantors or their heirs in the event of the cessation of the use of the lot for the designated purpose. The object of the grant was the public benefit and service of a growing community, throughout all future changes in the condition and circumstances of that community, and the purpose of the grant could be subserved best by the conveyance of an absolute estate. In the absence, then, of express stipulation, is it to be supposed that the grant of a conditional estate determinable by re-entry upon nonuser was intended?

In Wright v. Linn, 9 Pa.St. 433, where land was conveyed to certain named persons and their successors, in trust to erect a schoolhouse for the perpetual use of the parties to the deed, and other designated persons, it was held that a charity was created, which was not determined by nonuser for more...