Wagner v. Wallowa County

• Citation: 148 P. 1140,76 Or. 453
• Parties: WAGNER v. WALLOWA COUNTY. [d]
• Decision Date: 25 May 1915
• Court: Oregon Supreme Court

148 P. 1140

76 Or. 453

WAGNER v. WALLOWA COUNTY. ^[d]

Supreme Court of Oregon

May 25, 1915

In Banc.

Appeal from Circuit Court, Wallowa County; Gustav Anderson, Judge.

Action by A. M. Wagner against Wallowa County. Judgment for defendant, and plaintiff appeals. Affirmed.

This is an action of ejectment in the usual Code form to recover the possession of certain realty in Wallowa county. The defendant denies all the allegations of the complaint, except its own corporate entity. It pleads that it alone is the owner in fee simple and in possession of the property. Another defense is thus stated:

"That plaintiff ought not to be allowed to maintain this action for that on or about the 7th day of September, 1906, this plaintiff and his then wife, Isabelle C. Wagner, for a valuable consideration, duly made, executed, and delivered to this defendant a certain instrument in writing purporting to be a warranty deed, a copy of which warranty deed is hereto attached and marked 'Exhibit A,' and by this reference made a part hereof. That in and by the provisions of said deed the real property described in plaintiff's complaint was bargained, sold, and conveyed unto this defendant. That said deed further contained the following conditions subsequent, immediately after the description of the land, to wit: 'For the purpose of a site, or part of a site, for a county high school and buildings connected therewith; and it is understood that this conveyance is made and accepted on condition that said described real estate is to be used for a site, or a portion of a site, for a county high school and buildings connected therewith and for no other purpose; and, if not so used for such purpose, the title to said real estate shall revert back to the grantors herein.' That thereafter, and on or about the 19th day of October, 1912 while defendant was in possession and lawfully seised of the said real property, and at a time when said condition aforesaid was duly and fully performed, and prior to any alleged breach of said condition on the part of defendant this plaintiff and his said wife did, for a valuable consideration, make, execute, and deliver to school district No. 21, of Wallowa county, Ore., a municipal corporation, a certain written instrument, purporting to be a warranty deed, a copy of which said warranty deed is hereto attached and marked 'Exhibit B,' and by this reference made a part hereof. That by reason of the said deed of plaintiff, so made, executed, and delivered to said school district No. 21, said condition so named in said deed from said plaintiff and wife to this defendant was fully and wholly discharged, and said plaintiff became thereby and is estopped from claiming any right, title, or interest to said land under and by virtue of said condition."

The case was tried upon an agreed statement of facts, from which it appears that under the act of the legislative assembly of this state of February 26, 1901, entitled "An act to authorize the organization and maintenance of district and county high schools in this state," it was determined by the people of Wallowa county to establish a high school. After considering certain propositions from several towns the county court concluded to locate the institution at Enterprise, and accepted from the plaintiff and his wife a deed to the premises in dispute, in these words:

"Know all men by these presents, that we, Alonzo M. Wagner and Isabelle C. Wagner (husband and wife), in consideration of the sum of one dollar, to us paid by Wallowa county, Oregon, do hereby remise, release and forever quitclaim unto the said Wallowa county, Oregon, and to its successors and assigns, all our right, title and interest in and to the following described parcel of real estate, situate in said county of Wallowa, state of Oregon, to wit: All of block numbered one (1) of Wagner's addition to the town of Enterprise, as shown by the plat of said addition on record in the office of the county clerk of said county, for the purpose of a site, or part of a site, for a county high school, and buildings connected therewith; and it is understood that this conveyance is made and accepted on condition that said described real estate is to be used for a site or portion of a site for a county high school, and buildings connected therewith, and for no other purpose; and if not so used for such purpose, the title to said real estate shall revert to the grantors herein. To have and to hold the same, together with all and singular the hereditaments and appurtenances thereunto belonging or in any wise appertaining to the said Wallowa county, Oregon, and to its successors and assigns forever, for the purposes above mentioned. In witness whereof, we have hereunto set our hands and seals this 7th day of September, 1906.

"Alonzo M. Wagner. [Seal.]

"Isabelle C. Wagner. [Seal.]"

This instrument was duly executed, acknowledged, and recorded. During the spring and summer of 1907 the county erected a building on the premises for high school purposes, furnished the same all at a total cost of about $25,000, and thereafter maintained a county high school therein up to and including June 1, 1913. It further appears that, upon the initiative petition of certain voters of Wallowa county, a bill was proposed at the general election of November, 1912, for a local law to abolish and discontinue the county high school of Wallowa county, and forbidding the expenditure of public money in its support after the current taxes levied for that purpose had been exhausted. This bill was adopted as a law at the general election of November 5, 1912, and was proclaimed as such by the executive of the state later in the same month. In October, 1912, prior to the election and before any default in the maintenance of the school on the premises had been committed, the plaintiff and his wife made, executed, and delivered to school district No. 21 of Wallowa county the following deed:

"Know all men by these presents, that Alonzo M. Wagner and Isabelle C. Wagner, his wife, of Enterprise, county of Wallowa, state of Oregon, in consideration of one dollar and other valuable considerations, to them paid by school district No. twenty-one (21), of Wallowa county, state of Oregon, have bargained and sold and by these presents do grant, sell and convey unto said school district No. twenty-one (21), its successors and assigns, all the following bounded and described real property, situate in the county of Wallowa, and state of Oregon, to wit: All of block No. one (1) of Wagner's addition to the town of Enterprise, as shown by the plat of said addition on record in the office of the county clerk of said county and state, together with the tenements, hereditaments and appurtenances thereto belonging or in any wise appertaining, and also all the right, title and interest of the grantors therein or thereto, and to every part thereof, subject to the present estate and interest therein of Wallowa county, Oregon, heretofore created and conveyed to said county by deed of these grantors dated September 7, 1906, and recorded at page 71 of volume O of the Records of Deeds of said county. This conveyance is made by the grantors and accepted by the grantee upon the express condition that, upon the termination of the estate of Wallowa county therein, the said described real property shall be used for district high school purposes under the laws of the state of Oregon, by said school district No. twenty-one (21), and its successors, and should the same cease to be used as such district high school, except during temporary vacations, then said real property shall revert to and become the property of the grantors herein, their heirs and assigns. To have and to hold the above described and granted premises unto the said school district No. twenty-one (21) and its successors forever, subject to the conditions hereinbefore expressed. And the said grantors, Alonzo M. Wagner and Isabelle C. Wagner, above named, do covenant to and with the said school district No. twenty-one (21) and its successors that, while the conditions of this deed are complied with, they will and their heirs, executors and administrators, shall warrant and defend the abovegranted premises, and every part and parcel thereof, to said grantee and its successors forever, against the acts and deeds of said grantors subsequent to the date of this deed, and all persons claiming by, from, through or under the said grantors by virtue of any conveyance executed after this date by the grantors, their heirs, executors or administrators. In witness whereof we, the grantors above named, hereunto set our hands and seals this 19th day of October, 1912.

"Alonzo M. Wagner. [Seal.]

"Isabelle C. Wagner. [Seal.]"

This document was also duly executed, acknowledged, and recorded. The funds raised for its support having been fully expended, the school was closed June 1, 1913, since which time the defendant county has not maintained such an institution of learning. Other statements of fact are made in the stipulation, but the foregoing are deemed sufficient for the decision of the case. After hearing the argument of counsel on the agreed statement of facts and the pleadings, the circuit court rendered judgment in favor of the defendant to the effect that it was the owner in fee simple and entitled to the possession of the realty, and that it should recover costs and disbursements from the plaintiff. He has appealed.

D. W. Sheahan, of Enterprise, for appellant. C. R. Eberhard, of La Grande, and A. W. Schaupp, of Joseph (O. M. Corkins, of Enterprise, Cochran & Eberhard, of La Grande, and W. G. Trill, of Joseph, on the brief), for respondent.

BURNETT, J. (after stating the facts as above).

A cognate question was before u...