Toole v. Christ Church, Houston

• Decision Date: 09 May 1940
• Docket Number: No. 10986.,10986.
• Citation: 141 S.W.2d 720
• Parties: TOOLE v. CHRIST CHURCH, HOUSTON, et al.
• Court: Texas Court of Appeals

Page 720

141 S.W.2d 720

TOOLE v. CHRIST CHURCH, HOUSTON, et al.

No. 10986.

Court of Civil Appeals of Texas. Galveston.

May 9, 1940.

Rehearing Denied June 20, 1940.

Appeal from District Court, Harris County; Allen B. Hannay, Judge.

Action originally brought as an ex parte action by Christ Church, Houston, to remove dedication for cemetery purposes from land, pursuant to ordinance wherein Emily T. Toole filed answer and cross-action in trespass to try title, and plaintiff filed cross-action against Emily T. Toole and others. From a judgment for plaintiff, Emily T. Toole appeals.

Affirmed.

Bracewell & Spiner and Lawrence P. Gwin, all of Houston, for appellant.

Baker, Botts, Andrews & Wharton, William M. Ryan, and Hugh M. Patterson, all of Houston, for appellee Christ Church, Houston.

Joe Entzminger, of Houston, for persons cited by publication and the unknown heirs.

MONTEITH, Chief Justice.

This is an appeal in an action originally brought in the form of an ex parte action by appellee, Christ Church, Houston, to remove the dedication for cemetery purposes from 2.2 acres of land located in the City of Houston.

The action was brought pursuant to an ordinance passed by the City Council of Houston abating the property in controversy as a public nuisance and ordering the removal of all bodies, headstones, etc.

Appellant, Emily T. Toole, filed an answer in said cause, including a general demurrer and general denial. By cross-action in trespass to try title she set up title to the land in controversy in herself and by special plea she attacked the ordinance of the City of Houston abating said property as a nuisance.

Appellee, Christ Church, Houston, answered the cross-action of appellant by general demurrer and general denial. By cross-action complaining of Emily T. Toole and others it set up title to said property in itself. It pled specially the 3, 10 and 25 years' statutes of limitation, R.S. arts. 5507, 5510, and art. 5519, Vernon's Ann.Civ.St. art. 5519, and a plea of res adjudicata based on a prior judgment of the district court of Harris County in its favor against Emily T. Toole involving the 2.2 acres of land in controversy.

An attorney appointed by the court answered for the defendants named in appellee's cross-action who were cited by publication who did not appear in person or disclaim.

In answer to the one issue submitted, the jury found that Emily T. Toole was not a blood relation of Ann West. No other issues were submitted to the jury or requested, and no objections were made to the court's charge by any of the parties to the suit.

Judgment was rendered by the court removing the dedication of said property for cemetery purposes and decreeing that Christ Church, Houston, have and recover title to and possession of the land in controversy as against all parties in the case, subject to a right of way easement of the City of Houston, and that appellant, Emily T. Toole, take nothing by her cross-action.

The court found in its decree that due notice had been given in the action for the removal of said dedication; that the further maintenance of a cemetery on said property had been abated by an ordinance of the City Council of the City of Houston; that all bodies, monuments, etc., had been removed therefrom, and that the land in controversy was no longer required for, or suitable for, cemetery purposes.

The record shows that by deed dated June 5, 1850, James West conveyed the property in controversy to Ebenezer B. Nichols, James Reily and Peter W. Gray, "as Trustees of the Protestant Episcopal Congregation known as Christ Church, Houston, * * * and their successors in office as trustees."

The granting clause in said deed reads: "That I, James West of the City of Houston, for and in consideration of the sum of One hundred and ten dollars to me paid by Ebenezer B. Nichols, James Reily and Peter W. Gray as Trustees of the Protestant Episcopal Congregation known as Christ Church, Houston, have bargained, sold, released and conveyed, and do bargain, sell, release and convey unto said Nichols, Reily and Gray and their successors in office as Trustees aforesaid a certain tract of land situate in the County of Harris * * *."

The habendum clause in said deed provided: "To have and to Hold the said land with the right of engress and egress over and through the land of said West as aforesaid and other appurtenances, to them the said Nichols, Reily and Gray and their successors as Trustees aforesaid forever, in trust however that said land, &c., shall be held, used and reserved for the benefit of the said congregation of Christ Church Houston as a cemetery, and for no other purpose. * * *."

Appellant contends that the stipulation contained in the habendum clause of the deed from James West to the trustees of Christ Church, conveying said property in trust for the benefit of said congregation as a cemetery and for no other purpose, created a conditional conveyance and that an abandonment of said property for cemetery use resulted in a reversion of title to the grantee or his heirs.

The deed in question recites and acknowledges the receipt of a valuable consideration, the sum of $110, as a consideration for the conveyance of said property to the named trustees and their successors in office. There are no words of condition, reverter or right of re-entry in the deed and there are no conditions in the deed with the exception of the provision in the habendum clause to the effect that the property was conveyed "in trust however that said land, etc., shall be held, used and reserved for the benefit of the said congregation of Christ Church Houston as a cemetery, and for no other purpose."

It has long been the settled law in this state that where a deed contains apt language denoting the grant of an unconditional fee estate in land, other language contained in the instrument which denotes that the land was granted for a particular purpose is not regarded as implying that the grant is conditional. Hughes et al v. Gladewater County Line Ind. School Dist. 124 Tex. 190, 76 S.W.2d 471; Texas & P. Ry. Co. v. Martin, 123 Tex. 383, 71 S.W.2d 867.

The facts in the case of Hughes v. Gladewater County Line Ind. School Dist., supra, are similar in practically all respects to those in the instant case, with the exception of the fact that in the Gladewater case the deed under consideration contained a statement, not only in the habendum clause, but also in the granting clause, that the land was to be used "for school purposes only", and following the description there was another clause which provided that the grant to the trustees was "for school purposes only." The Commission of Appeals, in an opinion which was adopted by the Supreme Court, held that the clauses in said deed denoting a grant of the property in question for school purposes only did not import either a condition subsequent or a limitation respecting the duration of the grant.

In the case of Stanbery v. Wallace, Tex. Com.App., 45 S.W.2d 198, 199, the court in its opinion says: "It will be observed that the granting clause of the deed under consideration does not purport to grant over this land a right of way for street purposes, but that it conveys the land itself. It is true such clause is followed by a recital restricting the use of the land for street purposes. Such restriction, however, does not operate to limit the grant to a mere easement, as it is generally held that, if the granting clause conveys a fee title to the property, subsequent recitals, which merely limit the use to which the same may be put, do not restrict the conveyance to an easement." (Cases cited).

In the case of Barker v. Hazel-Fain Oil Company, Tex.Civ.App., 219 S.W. 874, 875, writ refused, the court had before it a deed to the trustees of the Methodist Episcopal Church. The granting clause conveyed the described tract of land to the said trustees and their successors in office for the use and benefit of the church as a public cemetery. The habendum clause contained the following recitation: "To have and to hold above-described premises, together with all and singular the rights and appurtenances thereto in any wise belonging unto the said trustees of said church and their successors and their heirs and assigns forever."

The warranty clause made no reference to use. In response to a contention that such deed conveyed to the trustees only an estate upon a condition subsequent, subject to a right of re-entry in the grantors, the court said: "This deed we think, in effect vested in the church the fee-simple title to the burial lot free from any right of reversion to the grantors. The parenthetical expression in the grant, `for a cemetery,' is a limitation of the use to which the lot was to be put, and not a limitation of the title."

The facts in this case were similar in all respects to those in the instant case, with the exception of the fact that in the deed construed in this case the words "and for no other purpose" did not appear.

Under the above authorities we think that the granting clause in the deed under consideration conveys an unconditional fee title to the property in controversy and that the subsequent recital in the habendum clause limiting the use to which the property may be put, even though it contains a phrase prohibiting other use, falls within the rule above stated and that it does not create a condition subsequent.

We are strengthened in this conclusion by the fact that our courts have uniformly held that if the deed under consideration is upon a valuable consideration, as in the instant case, as distinguished from a deed of gift or a deed for a nominal consideration, the court will lean even more strongly away from a construction which creates a condition subsequent. Olcott v. Gabert, 86 Tex. 121, 23 S.W. 985; Texas & Pac. Ry. Co. v. Martin, 123 Tex. 383, 71 S. W.2d 867, 870.

It is further held that a deed of conveyance does not create a condition...