Tillman v. Melton

• Decision Date: 10 November 1942
• Docket Number: 38177
• Citation: 165 S.W.2d 684,350 Mo. 155
• Parties: James E. Tillman, Appellant, v. James M. Melton, James B. Melton, Dillard Melton, U.S. Melton, Wm. Fowler, Wilda Fowler, Frank Wilkerson, Elmer Melton, Eliza Fowler, James Hacker, Amanda Hacker, Roscoe Hacker, Bert Hacker, Higdon Melton, Maude Melton and Lucy Caudle, if they be living, and if they be dead, then the unknown heirs and devisees of said parties, being all the heirs of B. B. Melton and M. C. Melton, Defendants, Sparta Consolidated School District No. 3, Intervenor, Respondent
• Court: Missouri Supreme Court

165 S.W.2d 684

350 Mo. 155

James E. Tillman, Appellant, v. James M. Melton, James B. Melton, Dillard Melton, U.S. Melton, Wm. Fowler, Wilda Fowler, Frank Wilkerson, Elmer Melton, Eliza Fowler, James Hacker, Amanda Hacker, Roscoe Hacker, Bert Hacker, Higdon Melton, Maude Melton and Lucy Caudle, if they be living, and if they be dead, then the unknown heirs and devisees of said parties, being all the heirs of B. B. Melton and M. C. Melton, Defendants, Sparta Consolidated School District No. 3, Intervenor, Respondent

No. 38177

Supreme Court of Missouri

November 10, 1942

Appeal from Christian Circuit Court; Hon. Tom R. Moore Judge.

Affirmed.

Omer E. Brown for appellant.

(1) Performance or breach of a condition in a deed, must, when controverted, be established as a fact by a preponderance of the evidence. 18 C. J. 450, sec 558. (2) Title to the property in dispute was vested in respondent, Sparta Consolidated School District No. 3. R. S. 1939, sec. 10403; School District of Oakland v. School District of Joplin, 102 S.W.2d 909, 340 Mo. 779. (3) The premises in dispute were still being used for "school purposes." North St. Louis Gymnastic Society v Hudson, 85 Mo. 32; McCullough v. Swifton Consolidated School Dist., 155 S.W.2d 353; Board of Ed. of Appling County v. Hunter, 190 Ga. 767, 10 S.E 92d) 749; People v. Catholic Bishop of Chicago, 311 Ill. 11, 142 N.E. 520. (4) Abandonment of premises used for school purposes involves two necessary elements: (a) The intention to abandon, permanently; (b) The quitting of the actual occupancy and non-user for the purpose granted. 1 C. J., pp. 6, 8, secs. 7, 11; 56 C. J., p. 463, sec. 463; Hickman v. Link, 116 Mo. 123, 22 S.W. 472; Strother v. Barrow, 246 Mo. l. c. 250. Out-State decisions: West Paterson Board of Ed. v. Brophy, 90 N.J.Eq. 57, 106 A. 32; Town of E. Greenwich v. Gimmons, 84 A. 1008; McCullough v. Swifton Cons. School, 155 S.W.2d 353. (5) If an abandonment had actually occurred, the building would not revert to the original grantors. R. S. 1939, sec. 10419; School Dist. of Oakland v. School Dist. of Joplin, 102 S.W.2d 909, 340 Mo. 779; Hatton v. Kansas City, C. & S. Ry. Co., 253 Mo. 660, 162 S.W. 227. (6) Though equity cases are decided de novo, where evidence of each party supports his contention as to disputed questions of fact and credibility of witnesses was determining factor, Supreme Court will defer to finding of Chancellor. Finley v. Williams, 326 Mo. 148, 29 S.W.2d 103; Friedel v. Bailey, 329 Mo. 22, 44 S.W.2d 9; Blackiston v. Russell, 328 Mo. 1164, 44 S.W.2d 22; Dimity v. Dimity, 62 S.W.2d 859.

Andrew J. Howard and Joe Crain for respondents.

(1) In ruling that the house would not revert, and also in dismissing the suit, the court was clearly in error, because partition would lie in regard to the land, regardless of whether the building thereon reverted, and the court was in error in holding that the land would revert and the building would not, as the building was also "real estate." Sec. 3439, R. S. 1939; Glueck & Co. v. Powell, 61 S.W.2d 406; Climer v. Wallace, 28 Mo. 556. (2) Under a condition subsequent clause, absent an agreement to the contrary, the property shall revert upon the condition being broken. Koehler v. Koehler, 275 Mo. 573. (3) A grantee by accepting a deed, is bound by a condition of forfeiture contained therein imposed for violation of a condition subsequent. Bredell v. Kerr, 242 Mo. 317. (4) On breach of a condition subsequent in a deed after the death of the grantor, his heirs have a right to re-enter and consequently a right to maintain ejectment. Weinreich v. Weinreich, 18 Mo.App. 364; Adams v. Lindell, 5 Mo.App. 197. This case was affirmed in the 72 Mo. 198. University City v. Chicago, R. I. & P. Ry. Co., 149 S.W.2d 321. (5) Even if the building did not revert, the board should be limited to a reasonable time to remove the building, which they did not do. May v. Board of Education, 12 Ohio App. 456. (6) In this case, the court held that the board of education should not have more than one year to remove the buildings from the real estate to which the condition precedent in regard to the land had been forfeited. There is no difference in the application of a reversionary clause to a quasi public corporation than to an individual, made by our statutes, and the condition subsequent, so far as the laws of our State are concerned, applies with equal force to public and private individuals. New Hebron Consolidated School District v. Sutton, 118 So. 303. (7) School district forfeited title by abandoning land for school purpose, where deed provided for reversionary interest if abandoned. Webster County Board of Education v. Gentry, 24 S.W.2d 910.

Dalton, C. Hyde and Bradley, CC., concur.

OPINION

DALTON

Statutory action to partition one acre, more or less, of particularly described real estate in Christian County. None of the defendants mentioned or described in the petition appeared or answered, but Sparta Consolidated School District No. 3 of Christian County appeared, and upon its request was made a party defendant, and answered, claimed ownership of the described real estate and prayed the dismissal of the action. A jury was waived, the cause was tried by the court and judgment entered denying partition and dismissing the cause. Plaintiff has appealed.

On September 2, 1892, B. B. Melton and M. C. Melton, his wife, owners of the described real estate, by warranty deed conveyed said real estate to three persons described as directors of School District No. 1 of Christian County. The deed was duly recorded. Sparta Consolidated School District No. 3, was formed May 27, 1925, and embraces the territory formerly in School District No. 1. The warranty deed, supra, contained this provision: "The condition of this deed is such as to revert the ownership back to B. B. Melton and M. C. Melton when it ceases to be used for school purposes." In 1933 the attendance at the school maintained on said premises was so small that the school board of the consolidated district discontinued the school and transported the children by bus to Sparta. From 1933 to the date of the institution of this suit in November, 1940, no public school was conducted in the school building on the described premises, but religious services were held in the building, and the building was also used for pie suppers, all with the consent of the school board of the consolidated district. When not in use the building was kept locked. About 1938 the school board moved some of the seats from this school building to another school building in the district for use there, but no action was affirmatively taken by the school board to abandon the school property.

On October 11, 1938, plaintiff obtained a deed from some of the Melton heirs (the original grantors being dead). The deed purported to convey the interest of these heirs in the described premises to plaintiff. The wife of one of the Melton heirs had been superintendent of the Sunday School conducted in the school building. She had for this purpose obtained a key from a member of the school board and she turned this key over to plaintiff. Plaintiff then took possession of and moved into the school building. The school board immediately demanded the key and possession of the building from plaintiff, but he continued to reside in the school building. After plaintiff moved in the building, representatives of the consolidated district removed all personal property of the district from the building. About a year later, the school board appointed a committee to regain possession of the property and establish their right and claim thereto. The school board intended to use the building for the purpose of conducting a school therein during the school year of 1941-1942, pending the construction of a new school building at Sparta. The defendants originally named in the petition were the heirs of B. B. Melton and M. C. Melton. The petition was not amended after the Consolidated District was made a party defendant. No question is raised with reference to the right of Consolidated District to intervene in the cause.

In "a memoranda of opinion and conclusions of law" filed by the court prior to entering the judgment, the court found the facts to be that the school district had not abandoned the property for school purposes.

We must first determine whether this court has jurisdiction of this appeal. The petition, styled "Action in Partition," alleged that plaintiff "and the defendants are seized as tenants in common of the" described real estate; "that the exact interest of each of the parties, plaintiff and defendant, is unknown to this plaintiff herein, but . . . all the defendants have some interest in and to said real estate, except those who have deeded their interest to the plaintiff herein, and plaintiff prays the court to hear evidence and determine the title and interest of the plaintiff and defendant herein and to adjudicate the title therein of each of the defendants and the plaintiffs to this suit." This allegation is immediately followed by a prayer "for partition of said land according to the respective interests of the said plaintiff and defendants herein." There is a further allegation that "a division in kind would be impracticable" and a prayer that the land be sold by the sheriff and the proceeds divided according to the respective interests of the parties, as determined by the court.

The answer of Sparta Consolidated School District No. 3 of Christian County alleges that "the plaintiff and the other defendants are not seized of or the owners of the real estate described in plaintiff's petition because said property is owned by the Sparta Consolidated School District." The basis of said claim of ownership, to wit the Melton deed,...