Sumner v. Darnell

• Decision Date: 03 April 1891
• Docket Number: 14,651
• Citation: 27 N.E. 162,128 Ind. 38
• Parties: Sumner et al. v. Darnell
• Court: Indiana Supreme Court

27 N.E. 162

128 Ind. 38

Sumner et al. v. Darnell

No. 14,651

Supreme Court of Indiana

April 3, 1891

From the Wayne Circuit Court.

Judgment affirmed.

J. B Julian and J. F. Julian, for appellants.

H. C Fox and J. F. Robbins, for appellee.

OPINION

Miller, J.

This was an action by the appellants against the appellee to recover certain real estate in Centreville, Wayne county. The complaint was in four paragraphs. A demurrer was sustained to the second paragraph, and the cause was put at issue by an answer in denial.

The errors assigned in this court relate only to the overruling of a motion made by the appellants for a new trial, and to exceptions to the conclusions of law upon the special findings of fact.

The motion for a new trial was predicated upon the alleged insufficiency of the evidence to sustain the finding. We have read the evidence carefully and find that it fully and without conflict sustains the finding of facts made by the court.

The special finding, omitting the description of real estate, is as follows, viz.:

"Having been requested by the plaintiffs in said cause to make a special finding of facts herein, and conclusions of law thereon, now find that William Sumner was a resident of Centreville, Wayne county, Indiana, from the year 1813 to the year 1840, at which last named date he removed to Hamilton county, Indiana, where he died, intestate, in the year 1868; that he left surviving him, as his sole heirs, four children, the plaintiffs in this suit, and Thomas Sumner, who died in 1883, leaving surviving him, ----- Sumner, his wife; that between the years 1813 and 1820 the said William Sumner was the owner in fee simple of ----- acres of real estate in the town of Centreville, and in the vicinity thereof, and was interested in the development of the town; that prior to the year 1816 the county-seat of said Wayne county was fixed at Salisbury, and subsequently, by an act of the General Assembly of the State of Indiana, approved December 21st, 1816, it was enacted that from and after the 1st day of August, 1817, the seat of justice in and for said county should be removed to and permanently fixed in the town of Centreville, in said county, and on the 1st day of August, 1817, said seat of justice was, pursuant to said act, removed to said town of Centreville; that afterwards, to wit, on the 18th day of May, 1819, the said William Sumner, being the owner of the following real estate, to wit: (* * *), did, in consideration of the seat of justice having been permanently established in the town of Centreville, within and for said county, and for no other consideration, execute to Thomas J. Worman, Enos Grave and Beah Butler, the commissioners of said county, and their successors in office, for the use of said county forever, a warranty deed for the same; that said deed was duly recorded on the 18th day of May, 1819, in the recorder's office of said Wayne county, Indiana, in deed record "B," page 140; that, on the ----- day of August, 1820, the new court-house at Centreville was completed and accepted by the said county commissioners of said county, and by them taken possession of, and on said date they consented to be entered their approval and acceptance of the deed of said William Sumner of May 18th, 1819, in the record of their proceedings of said date in the following words, to wit: 'William Sumner produced a deed for the public square in the town of Centreville, given by said Sumner and wife to and for the use of Wayne county, which deed was recorded in Book B, page 140, which deed was approved and accepted by the board;' that said real estate, so conveyed by the said Sumner and wife to said county commissioners, was thenceforward continuously used by said county for the purpose of a public square until the year 1873, at which date the county-seat was removed from said town of Centreville to the city of Richmond; that on the 7th day of March, 1874, the commissioners of said county, for a valuable consideration, sold and conveyed the west half of the same to one Sabra Jones, which deed was recorded in the recorder's office of Wayne county, Indiana, in deed record 59, page 480, and, on the 15th day of June, 1874, for a valuable consideration, they sold and conveyed the east half of the real estate to the said Sabra Jones, which deed was recorded in the recorder's office of Wayne county, Indiana, in deed record 59, page 478; that said Sabra Jones took possession of said real estate on said dates, respectively, and that after various transfers by deeds duly executed and recorded, the following part of the real estate included in the land conveyed by said William Sumner to the said county commissioners, by deed of May 18th, 1819, was conveyed, on the 4th day of March, 1884, to defendant, William J. Darnell, who now holds possession of the same; that said deed was duly recorded in the recorder's office of said Wayne county, Indiana, in deed record No. 80, at page 121; that, prior to the commencement of this suit, the plaintiffs demanded of the defendant the possession of the same; and as a conclusion of law on the foregoing finding of facts the court finds for the defendant."

Proper exceptions were taken to the foregoing conclusions of law by the plaintiffs, and this presents for our consideration the question discussed by counsel in their elaborate briefs.

The conclusions of law deduced by the court from the special findings are assailed upon several different grounds, one of which is the claim that inasmuch as the deed was to "Thomas J. Worman, Enos Grave and Beah Butler, commissioners of Wayne county, and their successors in office, for the use of said county of Wayne," it gave to the commissioners the legal title, to hold as trustees, and limited the county to the mere use of the premises, and that by the removal of the county-seat the use was lost and forfeited, and the title vested eo instanti in the grantor or his heirs.

As we construe the grant, it was in legal effect and contemplation a conveyance to the county. Nothing in the language used indicates a design on the part of the grantor to vest the legal title in the commissioners, and their successors, as individuals to act as trustees, rather than as the agents of the county, or to impose upon them any duties or obligations other than those required of them as public officers. The statute in force at that time did not, as does the present one, designate the corporate name and style to be assumed by boards of commissioners (act approved December 17, 1816), and the form used in this deed was, at that time, commonly used in conveying property to corporations and quasi corporations in this State. It is significant, also, that the entry made upon the county records by the board of commissioners, in accepting the deed, was for a deed "to and for the use of Wayne county." See, also, Carder v. Board, etc., 16 Ohio St. 353; Hayward v. Davidson, 41 Ind. 212.

Another position taken by the appellants is stated in their brief as follows:

"But this is not all we rely upon. The total failure of the consideration of the Sumner deed itself worked a loss of the county's claim and gave to the Sumner heirs the right to assert their title to the square, independent of the condition subsequent."

No authority is cited in support of this position, and we know of none that will sustain it. The duration or stability of the title to land does not ordinarily depend upon the certainty or stability of the consideration paid for it. But, independently of the legal question involved, the finding informs us that the county-seat remained at Centreville from the 1st day of August, 1817, until the year 1873, long after the grantor had removed from the county. We may reasonably suppose that, if the location of the county-seat at Centreville was of advantage to the grantor, he must have received some of the benefits during the half century it remained there, and that consequently there was not an entire failure of consideration. Hunt v. Beeson, 18 Ind. 380; Jeffersonville, etc., R. R. Co. v. Barbour, 89 Ind. 375.

The remaining, and principal, contention of the appellants is, that the conveyance of the land to, or for, the use of the county was conditioned on the seat of justice of Wayne county remaining permanently at Centreville, and that its removal to Richmond caused the land to revert to the appellants, as the heirs of the grantor.

The rule of strict construction applicable to conditions subsequent, usually expressed in the words, "Conditions subsequent are not favored in law, and are construed strictly," is elementary, and does not require the citation of authorities.

A condition subsequent that will defeat an estate created by a deed must be fairly expressed in the deed itself. The words used must create the condition. The court will not supply it, if the parties fail to express it. The rule is stated in 2 Dev. Deeds, as follows: "Section 976. Parol Condition.--Aside from the question of a reformation of a deed in cases where clauses have been omitted by mistake, it is certain that in an action to recover property conveyed by deed on the ground that a condition on which it was made has not been performed, the deed must speak for itself, and a condition can not be engrafted upon a deed absolute in form by parol evidence. The engrafting of a contemporaneous condition on a deed will in a proper action be allowed only on clear evidence of fraud, accident, or mistake."

A condition may be created by any words which show clear unmistakable, intention on the part of a grantor to create an estate on condition, regard being had to the whole of the deed in which they occur. The word "condition" need not be used, but words importing a condition must be used, or...