Thomson v. Hart

• Decision Date: 20 November 1909
• Citation: 66 S.E. 270,133 Ga. 540
• Parties: THOMSON et al. v. HART.
• Court: Georgia Supreme Court

66 S.E. 270

133 Ga. 540

THOMSON et al. v. HART.

Supreme Court of Georgia

November 20, 1909

Syllabus by the Court.

A deed will not be construed as a grant on condition subsequent unless the language used by express terms creates an estate on condition, or unless the intent of the grantor to create a conditional estate is manifest from a reading of the entire instrument.

In the present case, under the principles stated in the first headnote, the language employed by the grantor in those clauses of the deed which it is insisted made the deed a grant upon condition subsequent cannot be so construed as having that effect.

And the plaintiff's right to recover being dependent upon giving the deed such a construction as would render it a grant upon condition subsequent, the court did not err in dismissing the case upon general demurrer.

Error from Superior Court, Bibb County; W. H. Felton, Judge.

Action by Thomas F. Thomson and M. E. Whitehead against Jesse B Hart. Judgment for defendant, and plaintiffs bring error. Affirmed.

Thomas F. Thomson and Mrs. M. E. Whitehead brought their petition against Jesse B. Hart for the recovery of certain property situated in Bibb county, Ga., and described in the petition. The petition contained two counts; one alleging that, by reason of the breach of a condition, the estate created by a certain deed from Methvin S. Thomson to certain church trustees, and the estate created by a deed from plaintiffs who were the children of said Methvin S. Thomson, to the same trustees, had been defeated. The second count alleged that the estate created by the two deeds above mentioned was simply and plainly a restricted use, and that, the property described in said deeds having ceased to be used for said restricted use, the property reverted to the plaintiffs as the heirs of Methvin S. Thomson as to the property in one deed, and to the plaintiffs as the grantors in the other deed. The property described in the petition was embraced in two deeds: (1) From Methvin S. Thomson to certain trustees dated July 26, 1870; (2) from plaintiffs who are the children of Methvin S. Thomson, to the same trustees, dated April 1, 1884. In these two deeds the consideration for the grant is expressed as follows: "For the furtherance of the cause of religion and good morals in the community, and the sum of one dollar." In the petition it is alleged that the real consideration was for the furtherance of the cause of religion and good morals in the community; the said Methvin S. Thomson having in 1870 considerable other property in the same neighborhood. Both said deeds contained also a clause providing that the premises should be used, kept, and disposed of as a place of divine worship for the use of the ministry and membership of the Methodist Episcopal Church, So. In addition, the deed of Methvin S. Thomson contained the following language: "And the said Methvin S. Thomson the said bargained premises unto the said trustees as aforesaid for church uses only *** shall and will warrant and forever defend," etc. The deed made by petitioners to the trustees recites that the property is given upon the same conditions of trust and for like purposes as the original deed given in 1870. The defendant claimed the property by successive conveyances, starting with the trustees of said church and ending with said defendant. Petitioners are the reversioners and heirs at law of Methvin S. Thomson. There has never been any administration of his estate or any necessity therefor. It is also averred that, not only by the terms and conditions expressed in said deed, but by the terms and conditions necessarily implied from the language of said deeds, the grants were made upon the distinct condition that the property should be used for church uses only; that the trustees of the church have moved the church building on said property and conveyed it to the defendant, who is not now using said property for church uses and has no intention of so using it; but is now using it and intends to use it for purposes entirely secular, though legal.

The clause creating the trust in the first deed is as follows "In trust, nevertheless, that said premises shall be used, kept, maintained, and disposed of as a place of divine worship for the use of the ministry and membership of the Methodist Episcopal Church, South, subject to the discipline, usage and ministerial appointments of said church as from time to time authorized and declared by the general conference of said church and the annual conferences within whose bounds the said premises are situate. To have and to hold said lot of land, with all and singular the rights, members, and appurtenances thereto appertaining, to the only proper use, benefit and behoof of them, the said trustees and their successors in office, in fee simple; and the said Methvin S. Thomson the said bargained premises unto the said trustees as aforesaid for church uses only, and their successors, against the...