Trustees of Caledonia County Grammar Sch. v. Kent

• Decision Date: 04 July 1912
• Citation: 84 A. 26,86 Vt. 151
• Parties: TRUSTEES OF CALEDONIA COUNTY GRAMMAR SCHOOL v. KENT.
• Court: Vermont Supreme Court

84 A. 26

86 Vt. 151

TRUSTEES OF CALEDONIA COUNTY GRAMMAR SCHOOL

v. KENT.

Supreme Court of Vermont. Caledonia.

July 4, 1912.

On Motion for Rehearing July 4, 1912.

Exceptions from Caledonia County Court; Fred M. Butler, Judge.

Action by the Trustees of Caledonia County Grammar School against S. Blanche Kent. Verdict and judgment for defendant, and plaintiff excepts. Reversed and remanded.

Argued before ROWELL, C. J., and MUNSON, WATSON, and HASELTON, JJ.

B. E. Bullard and Elisha May, for plaintiff.

H. Henry Powers, Alexander Dunnett, and W. A. Dutton, for defendant.

WATSON, J. This case is here now for the second time on exceptions saved by the plaintiff in a trial by jury, and we may refer to the opinion before written (84 Vt. 1, 77 Atl. 877) for a statement of the facts, except such as were new or more particularly developed or established at the last trial. The defendant stood on the general issue, and claimed there was no evidence tending to show that the lot in question (lot No. 10, range 18, division 3, of lands in the town of Hardwick) was ever assigned to the plaintiff, as required by the charter of the town, but that, if it had been so assigned, the plaintiff had executed to the defendant's grantors such a contract or lease as it had a right to give, and that the defendant was in rightful possession under the same. Many exceptions were taken by the plaintiff to rulings on questions of evidence, to the failure of the court to charge as requested, and to the charge given. But the view we take of the case enables us to dispose of it on the exceptions to the overruling of the plaintiff's motion for judgment in its favor, notwithstanding the verdict. In submitting the case for a general verdict, the court also submitted to the jury four special questions for findings in answer thereto, the second, not to be answered in case the first should be answered in the affirmative, as it was. The general verdict was for the defendant. Special questions 1, 3, and 4, with the answers of the jury, were as follows:

"Question 1. Was lot No. 10, in the eighteenth range, Third division, located by the town of Hardwick as a grammar school lot, as provided by the town charter? Answer: Yes.

"Question 3. Were the trustees of the Caledonia county grammar school fully compensated for all the land granted to them for county grammar schools in the lots located and set apart in the first and second divisions? Answer: No.

"Question 4. Does defendant hold possession of lot No. 10, in the eighteenth range, third division of lots, town of Hardwick, under and by virtue of a perpetual lease from plaintiff to her grantors? Answer: Yes."

After verdict and before judgment, the plaintiff moved for judgment in its favor notwithstanding the verdict, for seven different reasons stated, the third of which was: "The defendant could not acquire in the premises other than a leasehold title in any manner whatsoever. The perpetual lease, which the jury find by special verdict (finding) No. 4, under instruction of the court, is a conveyance without reservation of rents, the prime essential of leasehold estates, with all charges settled upon delivery of the conveyance, in advance, and it is therefore title in fee and void." The motion upon this ground was in substance for a judgment in plaintiff's favor on the special findings.

By special findings 1 and 3, it was established, contrary to defendant's contention before the jury, that the lot in dispute was located to the plaintiff by the original proprietors, and that the plaintiff was not fully compensated under the "quantity for quality" clause of the town charter for all the land granted to it by the lots located to its right in the first and second divisions. With these facts established the effect of special finding No. 4 is of vital consequence. The defendant's evidence tended to show that by a perpetual lease the plaintiff leased the lot in question to her grantors Holton & Judevine as early as 1847, and that they paid for such lease $100 as commuted rent. The court instructed the jury to consider, in answering the fourth special question, whether the $100, the payment of which defendant's evidence tended to show, was applied on this grammar school lot contract, and, if it was rent, whether the defendant went into possession under such contract. Construing that question and the affirmative answer thereto in the light of the charge, the finding is that the defendant holds possession of the lot in dispute under and by virtue of a perpetual lease from the plaintiff to the defendant's grantors, $100 being paid by the latter therefor in lieu of successive payments of rent at the end of regular stated periods during all future time. The plaintiff contends that such a contract was not a lease within its power to execute; but was an ineffectual sale of the land and void.

Under the Act of 1795, by which the persons named therein were appointed trustees of the county grammar school in the county of Caledonia (located at Peacham), and with their successors made an aggregate corporation under the name of the "Trustees of Caledonia County Grammar School," lands were granted thereto as follows: "And the said trustees are hereby fully authorized and empowered to hold and lease the lands lying within said county, granted for the use and benefit of a county grammar school, with such donations in land or other property, as may hereafter, in any wise, be made for the use and benefit of said institution." The lot in question having been located by the town in which it is situated as a grammar school lot under the provisions of the town charter, the plaintiff was authorized and empowered "to hold and lease" the land for the use and benefit of the county grammar school (this same case, 84 Vt. 1, 77 Atl. 877); but this was the extent of its power. It was not authorized or empowered to convey the fee, nor the whole interest and estate of the county grammar school therein. By the express terms of the grant the plaintiff was to hold the lands, as well as to lease them.

The question then is: What was the legal effect of the so-called perpetual lease to Holton & Judevine in consideration of the payment by them of a single sum as the rent for all future time? By such conveyance, if valid, the grantees took a right over a determinate thing, indefinite in point of user, unrestricted in point of disposition, and unlimited in point of duration, which elements, says Mr. Austin, denote property in its strict sense. 2 Aus. Jur. (5th Ed.) 790. Prof. Holland adopts this definition, and says it is difficult to do more to describe the right of ownership unlimited only in comparison with the rights of others over objects in accordance with the maxim, "Sic utere tuo ut alienum non lædas." Hol. Jur. (10th Ed.) 199, 200. Chancellor Kent says a fee simple "is an estate of perpetuity, and confers an unlimited power of alienation, and no person is capable of having a greater estate or interest in land." 4 Kent's Com. (11th Ed.) 4. It is said in Bacon's Abr. tit. "Leases and Terms for Years" that it is essential to a lease that there be a reservation of a reversion in the grantor, for, if the whole estate and interest which the grantor has be parted with, the instrument is not a lease, but an assignment; that the very name of lease imports a separation, a detachment of a part from the whole. To the same effect is Sheppard's Touchstone, 266. Blackstone, noticing this distinction, says: "An assignment is properly a transfer, or making over to another, of the right one has in any estate. * * * And it differs from a lease only, in this: that by a lease one grants an interest less than his own, reserving to himself a reversion. In assignments he parts with the whole property, and the assignee stands to all intents and purposes in the place of the assignor." 2 Black. Com. 326; State v. Passaic, etc., Bridge Proprietors, 21 N. J. Law, 384. In Stevens v. Dewing, 2 Vt. 411, the plaintiff claimed the land by virtue of a lease from one Adams Stevens to him, to run as long as wood grows and water runs, the plaintiff to support said Stevens and his wife during their lives. In determining the character of this conveyance, the court said the term "as long as wood grows and water runs" rendered it perpetual; that the matters to be performed by the plaintiff were to continue only during the the life of the grantor and his wife; that it conveyed a fee in the use, liable to be defeated during the life of Adams and his wife, by a failure on the part of the plaintiff to perform the conditions, on his part to be performed, but, after that, the title would be absolute in the plaintiff and his heirs and assigns forever. It may well be considered whether it does not logically follow from the holdings in that case that had the rent been payable in money, and paid on the delivery of the instrument in one sum to cover all future time, the legal effect would have been to convey an absolute title concurrently therewith. On the foregoing authorities it is clear that the so-called perpetual lease from the plaintiff to Holton & Judevine, instead of being a lease, was in law an attempted conveyance in fee, and as a conveyance of such public lands it was void. Capen's Adm'r v. Sheldon, 78 Vt. 39, 61 Atl. 864; Bush v. Whitney, 1 D. Chip. 369; Lampson v. New Haven, 2 Vt. 14; Williams v. Goddard, 8 Vt. 492; White, v. Fuller, 38 Vt. 193. See, also, Propagation Society v. Sharon, 28 Vt. 603.

It is argued, however, that inasmuch as the plaintiff, by its charter, was authorized "to hold and lease" the grammar school lands in the several towns in the county without any expressed restriction on the power to lease, either as to length of term or amount and kind of rent, a general power is given to be exercised in the discretion of the grantee of the power. It is true that there is no provision in the plaintiff's charter nor by statute expressly specifying the term for...