The construction and legal effect of a patent for land is matter
for the court, and evidence to aid in that construction is
incompetent.
The clear intent of the Act of the Province of Pennsylvania of
March 11, 1752, authorizing trustees to acquire the land in
question, was that while the legal estate in fee in the land should
be acquired by the trustees, the beneficial use or equitable estate
was to be in the inhabitants of the county, and the provision
following the authorization to acquire the land, "and thereon to
erect and build a courthouse and prison," was
Page 170 U. S. 384
no more than a direction to the trustees as to the use to be
made of the land after it had been acquired.
The language of the
habendum that the conveyance is "in
trust," nevertheless to and for the erecting thereon a courthouse
for the public use and service of the said county, and to and for
no other use, intent, or purpose whatsoever, under the decisions of
the courts of Pennsylvania amounted simply to conforming the grant
to the legislative authority previously given, and cannot be deemed
to have imported a limitation of the fee.
The purposes of the grant by the patent of 1764 of the lot in
the center of the public square at Easton, in conformity to the
clear intent of the act of 1752, was undoubtedly to vest an
equitable estate in the land in the inhabitants of the county, the
trust in their favor being executed so soon as the county became
capable of holding the title.
If the grant be viewed as one merely to trustees to hold "for
the uses and purposes mentioned in the act of the assembly," it is
clear that the fee was not upon a condition subsequent, nor one
upon limitation.
Without positively determining whether the estate in the county
is held charged with a trust for a charitable use or is an
unrestricted fee simple on the theory that the trustees were merely
the link for passing the title authorized by the act of 1752, it is
held that the trial court did not err in directing a verdict for
the defendant.
By an act of the General Assembly of the Province of
Pennsylvania passed on March 11, 1752, the County of Northampton
was created out of a portion of the County of Bucks. In the sixth
and seventh clauses of the act, it was provided as follows:
"VI. And be it further enacted by the authority aforesaid that
it shall and may be lawful to and for Thomas Craig, Hugh Wilson,
John Jones, Thomas Armstrong and James Martin, or any three of
them, to purchase and take assurance to them and their heirs of a
piece of land situate in some convenient place in the said town [of
Easton], in trust and for the use of the inhabitants of the said
county, and thereon to erect and build a courthouse and prison
sufficient to accommodate the public service of the said county and
for the ease and convenience of the inhabitants."
"VII. And be it enacted by the authority aforesaid that, for the
defraying the charges of purchasing the land, building, and
erecting the courthouse and prison aforesaid, it shall any may be
lawful to and for the commissioners and assessors
Page 170 U. S. 385
of the said county, or a majority of them, to assess and levy,
and they are hereby required to assess and levy, so much money as
the said trustees, or any three of them, shall judge necessary for
purchasing the land and finishing the said courthouse and prison.
Provided always the sum of money so to be raised does not exceed
three hundred pounds current money of the province."
On March 4, 1753, an act was passed in which it was recited that
the amount specified in the Act of March 11, 1752, had been
expended in building a prison, and authority was given to assess
and levy a further sum not exceeding a stated amount, as the
persons named in the act, or any three of them, should judge
necessary for building a courthouse and finishing the prison
already erected.
On July 9, 1762, the following warrant of survey was issued:
"Pennsylvania,
ss.:"
"
By the Proprietaries"
"Whereas in and by an act of General Assembly of this Province
entitled 'An Act of erecting the northwest part of Bucks into a
separate county,' which in and by the said act is called
Northampton and Thomas Craige, Hugh Wilson, John Jones, Thomas
Armstrong and James Martin, or any three of them, were appointed
trustees to purchase and take assurance to them and their heirs of
a piece of land situate in some convenient place in the Town of
Easton in the said county, and thereon to erect and build a
courthouse and prison sufficient to accommodate the public service
of the said county, and for the ease and convenience of the
inhabitants, as in and by the said act appears. And whereas, on
application and request of said trustees, and out of our regard to
encourage and promote the improvement of the said town and general
good and convenience of the inhabitants of the said county, we have
condescended and agreed to grant to the said trustees a lot or
piece of ground of eighty feet square to be laid out in the center
of the great square in the middle of the said Town of Easton for a
courthouse for the use and the accommodation of the inhabitants of
the said town and county forever. These are
Page 170 U. S. 386
therefore to require you to survey and lay out, or cause to be
surveyed and laid out, a lot or piece of ground in the center of
the great square in the said Town of Easton of the said dimensions
of eighty feet square for the public use of a courthouse for the
inhabitants of the said town and county, and make return thereof
into our Secretary's office in order for confirmation to the said
trustees and their heirs for the use aforesaid, and for your so
doing this shall be your sufficient warrant."
"Given under my hand and the seal of the Land Office, by virtue
of certain powers from the said Proprietaries at Philadelphia, the
ninth day of July, 1762."
"To John Lukens James Hamilton"
"
Surveyor-General"
A survey was made and returned in which it was recited:
"In pursuance of a Warrant dated the 9th, day of July 1762.
Surveyed the 8th day of October, 1763, to Thomas Craig and others
the above described lot of ground situate in the public square of
the Town of Easton in the County of Northampton. Containing in
length north & south eighty feet and in breadth east & west
eighty feet."
Forming part of the certificate was a plat exhibiting a large
open space, three hundred and twenty feet square, intersected from
north to south and east to west by two eighty feet wide streets
(Northampton and Pomfret). In the center of the open space referred
to, facing the streets mentioned, was a square plot of ground,
marked as being eighty feet on each side.
On September 8, 1764, a patent was executed as follows:
"Thomas Penn & Richard Penn Esquires true and absolute
Proprietaries and Governors in Chief of the Province of
Pennsylvania & Counties of Newcastle Kent and Sussex upon
Delaware To all unto whom these Presents shall come Greeting
Whereas in and by an Act of General Assembly of the said Province
passed in the twenty-fifth year of the Reign of our late Sovereign
Lord the Second Intituled 'An Act for Erecting the North West part
of Bucks into a separate
Page 170 U. S. 387
county' which in and by the said Act is called Northampton and
John Jones Thomas Armstrong James Martin John Rinker and Henry
Allshouse or any of them are appointed trustees to purchase and
take Assurance to them and their Heirs of a Piece of Land situate
in some convenient Place in the Town of Easton in the said county
and thereon to erect and build a Courthouse & Prison sufficient
to accommodate the public Service of the said county as by the said
Act appears, And whereas in Pursuance of a Warrant dated the ninth
of July 1762 under the Seal of our Land Office we have at the
special Instance & Request of the said trustees caused a Lot of
Ground situate in the Center of the said Town of Easton to be laid
out for a courthouse for the Public Use and Service of the said
county (another Lot of Ground in the said Town having been
heretofore laid out for a Prison or Common Goal erected thereon)
which said lot in the Center Square contains in Length North and
South eighty feet and in Breadth East and West eighty feet As by
the said Warrant and Survey of the said Lot remaining in the
Surveyor Generals Office and from thence Certified into our
Secretary's Office more fully appears Now know ye that, for the
further Encouragement and better promoting the Public Benefit and
Service of the said Town and county And for and in Consideration of
the yearly Quitrent herein after reserved and of the Sum of Five
Shillings to us in Hand paid by the said trustees (The Receipt
whereof is hereby acknowledged) We have given granted released
confirmed and by these Presents do give grant release and confirm
unto the said trustees John Jones Thomas Armstrong James Martin
John Rinker and Henry Allshouse and their Heirs the said Lot of
Ground situate in the Center of the Great Square in the said Town
of Easton containing eighty feet in Length North & South and
eighty feet in breadth East and West Together with all Ways Waters
Watercourses Liberties Easements Privileges Profits Commodities
Advantages and Appurtenances thereto belonging And the Reversions
and Remainders thereof. To have and to hold the said herein before
described Lot of Ground with the Appurtenances unto
Page 170 U. S. 388
the said John Jones Thomas Armstrong James Martin John Rinker
and Henry Allshouse their Heirs and Assigns forever. In Trust
nevertheless to and for the Erecting thereon a courthouse for the
public Use and Service of the said county and to and for no other
Use Intent or Purpose whatsoever to be holden of us our Heirs and
Successors Proprietaries of Pennsylvania as of our Manor of Fermor
in the County of Northampton aforesaid in free and common Socage by
Fealty only in Lieu of all other Services Yielding & Paying
therefor yearly unto us, our Heirs and Successors at the Town of
Easton aforesaid at or upon the first day of March in every Year
from the first day of March next one Red Rose for the same or value
thereof in Coin Current according as the Exchange shall then be
between our said Province and the City of London to such Person or
Persons as shall from Time to Time be appointed to receive the same
And in case of Nonpayment thereof within ninety days next after the
same shall become due That then it shall and may be lawful for us
our Heirs and Successors our and their Receiver or Receivers into
and upon the hereby granted Lot or Piece of Ground and Premises to
Reenter and the same to hold and Possess until the said Quitrent
and all arrears thereof Together with the Charges accruing by Means
of such Nonpayment and Reentry be fully paid and discharged."
"Witness John Penn Esquire Lieutenant Governor of the said
Province who by virtue of certain Powers and Authorities to him for
this Purpose
inter alia granted by the said Proprietaries
hath hereunto set his Hand and caused the Great Seal of the said
Province to be hereunto affixed at Philadelphia this twenty eighth
day of September, in the Year of our Lord one thousand seven
hundred and sixty four The Fourth year of the Reign of George the
Third the King over Great Britain &c And Forty seventh Year of
the said Proprietaries government."
A courthouse was built upon the property between the years 1763
and 1766, and remained thereon until the year 1862, when it was
removed. No buildings have since been placed upon the ground, but
it was asserted in argument that a public fountain had been erected
thereon.
Page 170 U. S. 389
By an act of the General Assembly of Pennsylvania of date April
15, 1834, the title of the trustees was vested in the County of
Northampton.
On July 25, 1888, William Stuart, as sole heir of the original
grantors, by his duly authorized attorney, made entry upon the lot
in question for a breach of an alleged condition as to its use,
claimed to have been incorporated in the patent of 1764, and which,
it was asserted, revested the land in the claimant as succeeding to
the rights of the original grantors. Being ousted by the
representatives of the County of Northampton and the citizens of
Easton, Stuart soon after instituted an action of ejectment in the
United States Circuit Court for the Eastern District of
Pennsylvania to recover possession of the land. At the trial, a
verdict was directed for the defendant, and the case subsequently
came into this Court for review, when the judgment was reversed
because of an omission of the plaintiff to properly plead his
alienage.
156 U. S. 156 U.S.
46. Thereafter, William Stuart having died, his son, the present
plaintiff in error, was substituted as plaintiff, and, the
pleadings having been amended, a new trial of the action was had in
April, 1895. During the course of the trial, counsel for the
plaintiff separately offered in evidence:
1. A certified copy of the deed referred to in the acts of 1752
and 1753, acquiring land on which to erect a prison, stating that
he proposed to follow this by the offer of a subsequent grant to
the county by the heirs of Penn of the reversion of the prison
lands. The purpose of the offer was declared to be to throw light
on the terms of the grant of land for the courthouse, and thereby
to demonstrate that the county was estopped from claiming that the
grant of such land by the patent of 1764 was not upon a
condition.
2. A deed by Granville John Penn and Richard Penn to the County
of Northampton, dated in 1852, for the reversion in the prison lot,
which was offered for two purposes: first, for the former purpose
of establishing an estoppel upon the county, and second to show
grants by Penn of land in the township of Easton subsequent to the
divesting act, to be followed by other deeds made by Penn
subsequent to the divesting act.
Page 170 U. S. 390
The Divesting Act referred to was an act passed November 27,
1779 (1 Smith's Laws, 479), vesting the title to the Province of
Pennsylvania in the commonwealth.
3. A deed by John Penn to Peter Schuyler
et al., for a
lot in the County of Easton, subsequent to the divesting act.
4. A certified copy from the books of the land office showing
that the records of the Department of Internal Affairs of
Pennsylvania contain a number of warrants issued for lots in the
Town of Easton, Pennsylvania, and surveys made in pursuance
thereof, and lots granted by the proprietaries of the Province of
Pennsylvania.
5. That no evidence can be found to indicate that any warrants
were issued and surveys made or patents granted by the Commonwealth
of Pennsylvania for any lots in the Town of Easton,
Pennsylvania.
Offers Nos. 3, 4, and 5, it is claimed in argument, were made to
establish that the property in question was part of the private
estate of the Penns, preserved to them by section 8 of the
Divesting Act.
Upon objection that the evidence was irrelevant to the issue, it
was excluded, and exceptions to such rulings were reserved.
At the close of the testimony for the plaintiff, counsel for
defendant moved the court to direct a verdict for the defendant.
This motion was granted, the court instructing the jury that the
deed on its face was a conveyance to trustees for the use and
benefit of the people of Northampton County in the erection and use
of public buildings, and that the land had not reverted to the
grantors by a diversion of the use. Judgment having been entered in
favor of the defendants, the cause was taken by writ of error to
the United States Circuit Court of Appeals for the Third Circuit,
which affirmed the judgment. 74 F. 854. A writ of certiorari was
subsequently allowed by this Court.
Page 170 U. S. 391
MR. JUSTICE WHITE, after making the foregoing statement,
delivered the opinion of the Court.
The errors assigned are misdirection in instructing the jury to
render a verdict for the defendant and wrongful exclusion of the
offered evidence. We at once dismiss the latter assignments from
consideration. The evidence offered to aid in the construction of
the patent was clearly incompetent, as, the patent being a written
instrument, its construction and legal effect were a matter for the
court, and, even if an estoppel had been pleaded, the excluded
evidence could not have estopped the county from asserting that the
patent of 1764 had the meaning contended for. As regards the
evidence offered to establish that the rights of the proprietaries,
if any, in the property in question had not been cut off by the
Divesting Act, the evidence, if not cumulative, was clearly not
material, if by the terms of the patent, as we hold to be the case,
no interest in the land granted thereby remained in the
grantors.
Did the trial court improperly direct a verdict for the
defendant?
This question requires an interpretation of the grant contained
in the patent of 1764, and, as the question arising on such
construction relates to the title to real property, we must, in
reaching a conclusion, be guided by the local law of Pennsylvania,
the state in which the land is situated.
We premise our examination of the terms of the patent with the
following extract from the opinion delivered by Kennedy, J., in
Ingersoll v. Sergeant, 1 Wharton 337, 348:
"King Charles 2nd, in granting the Province of Pennsylvania to
William Penn and his heirs, gave it to be held in free and common
socage, and by fealty only, for all services, and by the
seventeenth section thereof, William Penn, his heirs and assigns,
had full and absolute power given to them at all times thereafter,
and forever, to assign, alien, grant, demise, or enfoeff such parts
and parcels thereof to such persons as might be willing to purchase
the same, their heirs and assigns, in fee simple, fee tail, for
term of life, lives, or years,
Page 170 U. S. 392
to be held of the said William Penn, his heirs and assigns, as
of the seigniory of Windsor, by such service, customs, and rents as
should seem fit, to the said William Penn, his heirs and assigns,
and not immediately of the said King Charles, his heirs or
successors, and again, by the 18th section, it was further provided
that the purchasers from William Penn, his heirs or assigns, should
hold such estates as might be granted to them either in fee simple,
fee tail, or otherwise, as to the said William Penn, his heirs or
assigns, should seem expedient, the statute of
quia emptores
terrarum in any wise notwithstanding."
The proper construction of the patent in question is free from
difficulty when construed in connection with the act of the
assembly to which the patent refers. The act of 1752 constituted
the authority of the trustees for acquiring the land in question,
and that authority was to the individuals named in the act
"to purchase and take assurance to them and their heirs of a
piece of land situate in some convenient place in the said Town of
Easton, in trust, and for the use of the inhabitants of the said
county."
The inhabitants of the County of Northampton, not being a
corporation, were unable to take a direct conveyance of the land,
but the clear intention of the statute was that, while the legal
estate in fee in the land should be acquired by the trustees, the
beneficial use or equitable estate was to be in the inhabitants of
the county. The provision following the authorization to acquire
the land, "and thereon to erect and build a courthouse and prison,"
was no more than a direction to the trustees as to the mode of use
to be made of the land after it had been purchased.
The authority to the trustees, being to "purchase," adds force
to the clear implication that it was the intention of the assembly
that a title in fee simple should be acquired. When, therefore, we
find a recital in the patent that it is conveyed upon a named
consideration, and the patent expressly refers to the act of the
assembly as the authority from which the patentees derived the
power to take and hold the property, we naturally infer an
intention of the parties, on the one hand to convey, and on the
other to receive, just such an estate in
Page 170 U. S. 393
the land as the act contemplated. It is true that the
consideration is apparently nominal, but at common law, in a deed
like the one in question, a pecuniary consideration, however small,
was sufficient to divest the title.
Queen v. Porter, 1
Rep. 22, 26;
Van Der Volgen v. Yates, 9 N.Y. 226.
The patent expressly purports to convey the fee, the reservation
of an annual quitrent of a red rose being merely a feudal
acknowledgment of tenure,
Marshall v. Conrad, 5 Call 364,
398, which was in effect annulled by the Revolution and Acts of the
assembly of Pennsylvania subsequently passed, declaring all lands
within the commonwealth to be held by a title purely allodial. In
the premises, the grant is to the trustees by name "and their
heirs," while the
habendum is to the individuals
theretofore referred to as the trustees,
"their heirs and assigns, forever. In trust, nevertheless, to
and for the erecting thereon a courthouse for the public use and
service of the said county, and to and for no other use, intent, or
purpose whatsoever."
This last clause, it is claimed, qualifies the prior grant of an
estate in fee, and limits the duration of the estate in the land to
the period while the land was used as the site of a courthouse. But
it will be remembered that the act of 1752 authorized the
acquisition of a lot upon which the trustees were directed to build
a courthouse and prison, and the act of 1753 recited that the
amount authorized by the act of 1752 to be expended for a
courthouse and prison had already been expended for building a
prison, and authority was given to assess and levy a further sum
for the erection of a courthouse. The patent of 1764 recited the
fact that another lot of ground had been laid out for a prison
site, and it may be well in reason considered that, had the act of
1752 authorized solely the erection of a courthouse instead of a
courthouse and prison, the clause to which we have referred would
have simply recited that the patentees were to hold the land for
the uses and purposes mentioned in the act of the assembly. In the
condition in which matters stood, however, the recital that the
land was to be held in trust for the object stated may well be
treated as having been inserted with the intent of showing that the
grant related alone to one
Page 170 U. S. 394
of the purposes covered by the law, the courthouse, and not to
both therein expressed -- that is, the prison and the courthouse.
Be it as it may, however, under the facts disclosed by the record,
the decisions of the courts of Pennsylvania leave no doubt that the
clause in question cannot be construed as anything more than a
recognition of the trust previously created by the act of the
General Assembly, and that it amounted simply to conforming the
grant to the legislative authority previously given, and that it
cannot be deemed to have imported a limitation of the fee. Thus, in
Slegel v. Lauer, 148 Penn.St. 244, while it was held that
the grant there considered, though absolute in terms, merely
conveyed a fee on limitation, because the purpose expressed in the
grant was not one for which counties usually acquired a fee simple
in lands, the court reviewed the cases of
Kerlin v.
Campbell, 15 Penn.St. 500;
Griffitts v. Cope, 17
Penn.St. 96;
Brendle v. German Reformed Congregation, 33
Penn.St. 415, and
Seebold v. Shitler, 34 Penn.St. 133, and
declared the doctrine established by those cases to be that where a
conveyance purporting to be in fee is made to public trustees or
commissioners, religious societies, etc., for the particular
purpose for which the grantees could lawfully hold real estate,
such declaration could not be construed as qualifying a prior grant
of the fee. The court said (p. 241):
"Of course, the mere expression of a purpose will not, of and by
itself, debase a fee. Thus, a grant in fee simple to county
commissioners of land 'for the use of the inhabitants of Delaware
County, to accommodate the public service of the county,' was held
not to create a base fee (Kerlin v. Campbell, 15 Penn.St. 500); as
also a grant to county commissioners and their successors in office
of a tract of land with a brick courthouse thereon erected, 'in
trust for the use of said county, in fee simple,' the statute under
which the purchase was made authorizing the acquisition of the
property for the purpose of a courthouse, jail, and offices for the
safekeeping of the records (Seebold v. Shitler, 34 Penn.St. 133).
Similarly a devise of land to a religious body in fee, 'there to
build a meeting house upon,' etc., was held to pass an
unqualified
Page 170 U. S. 395
estate,
Griffitts v. Cope, 17 Penn.St. 96, as was also
a grant to a congregation"
"for the benefit, use, and behoof of the poor of said . . .
congregation, . . . forever, and for a place to erect a house of
religious worship, for the use and service of said congregation,
and, if occasion shall require, a place to bury their dead"
"
Brendle v. Reformed Congregation, 33 Penn.St. 415. . .
."
"It is apparent in all the cases cited that the purposes for
which the grants were made were really all the purposes for which
the grantees could lawfully hold real estate. Unless, therefore,
the absurd position be assumed that a corporation can in no event
take a fee simple absolute because its power to hold land is
limited to the uses for which it is authorized to acquire and
employ it, a declaration in the grant that it is conveyed for those
uses cannot be deemed to import a limitation of the fee.
'Expressio eorum quae tacite insunt nihil operatur.' Such
a declaration can amount to no more than an explicit assertion of
the intended legality of the grant."
The case at bar is precisely analogous in its main features to
the facts which were under consideration in
Kerlin v. Campbell,
supra, the only difference being that, in the case just cited,
instead of the purpose for which the land was to be held being
specified in the grant, a declaration of trust was made in a
separate instrument. The facts in the
Kerlin case were as
follows: certain public buildings had been erected on land, and the
land, with the erections, was sold to a private individual.
Subsequently, five named individuals, or any three of them, were
authorized by statute
"to take conveyances and assurances to them and their heirs of
the said old courthouse, and of the prison and workhouse, in the
said Borough of Chester, with the lots of ground thereunto
belonging, in trust and for the use of the inhabitants of the said
County of Delaware, to accommodate the public service of the said
county."
A deed was made in pursuance of this act to the individuals
named "and to their heirs and assigns," for an expressed
consideration, "to have and to hold the same to them, their heirs
and assigns, forever." A declaration of trust was made
contemporaneously with the deed, reciting
Page 170 U. S. 396
that the latter instrument had been made or was intended to
be
"in trust and for the use of the inhabitants of the said County
of Delaware to accommodate the public service of the said county,
according to the true intent and meaning of the said recited act of
assembly,"
and also declaring that the interest held in the land and
buildings was "only to and for the uses and services hereinbefore
mentioned, expressed, and declared, and to and for no other use,
interest, or purpose whatsoever." A part of the lot and the
workhouse building thereon having been subsequently sold to a
private individual under authority of an act of assembly, the heirs
of the original grantor brought ejectment to recover possession,
upon the ground that the property was granted for a grossly
inadequate consideration, if the unrestricted fee was conveyed, and
that the deed to the individuals named in the original act and the
declaration of trust by them executed was but a single transaction,
and constituted a conveyance to the parties named, in trust to and
for the use of the inhabitants of the county of Delaware, to
accommodate the public service of the said county, according to the
true intent and meaning of the act of assembly, and to no other
use, intent, or purpose whatsoever, and that the estate which the
trustees took was a base or determinable fee -- in other words, an
interest which might continue forever, but was liable to be
determined, without the aid of a conveyance, by some act or event
circumscribing its continuance or extent. On the part of the
defendants in error, it was contended that the transaction was a
purchase, and not a trust. The court said (page 506):
"The doctrine of charitable use is inapplicable to a question
like the present. Had the ancestors of the plaintiff conveyed the
property as a gratuity, to be used in a particular way, they might
have had a plausible case on a cessation of the user; but he
conveyed it for its value, by an absolute deed, to persons who
executed a declaration of trust, not for his benefit, but to vest
the equitable ownership in the county. After that, it is impossible
to conceive of a dormant interest in him. The two deeds, though
executed at the same time, were as diverse as if the latter were a
conveyance of the legal title to a stranger,
Page 170 U. S. 397
with whom the grantor in the first could not be in privity.
There could be no resulting trust, for every part and particle of
the grantor's estate, legal or equitable, present or prospective,
had passed from him and was paid for. Nor was the estate granted a
base fee. It was unclogged with conditions or limitations. The
ancestor received a full consideration for it, and the plaintiffs
cannot rescind the bargain."
We think the two cases are not distinguishable in principle. The
purposes of the grant by the patent of 1764 of the lot in the
center of the public square at Easton, in conformity to the clear
intent of the act of 1752, was undoubtedly to vest an equitable
estate in the land in the inhabitants of the county, the trust in
their favor being executed so soon as the county became capable of
holding the title. While the proprietaries may have been mainly
influenced in making the grant by a desire to advance the interests
of the town, or were actuated by motives of charity, yet the
transaction was not a mere gift, but a section upon a valuable
consideration, and it was the evident intention of the grantors to
convey all their estate or interest in the land for the benefit of
the county. The declaration in the patent of the purposes for which
the land was to be held, conjoined as it was with a reference to
the act of the assembly wherein the trust was created, could not
have the effect of qualifying the grant of the fee simple any more
than if the declaration of the purposes for which the land was to
be held had been omitted, and a declaration of the trust made in an
independent instrument.
If the grant be viewed as one merely to trustees to hold "for
the uses and purposes mentioned in the act of the assembly," it is
clear that the fee was not upon a condition subsequent nor one upon
limitation. There are no apt technical words (such as,
so
that," "provided," "if it shall happen, etc., 4 Kent Comm.
note b, p. 132; 2 Washburn on Real Property, p. 3), contained in
the grant, nor is the declaration of the use coupled with any
clause of reentry or a provision that the estate conveyed should
cease or be void on any contingency. (
Ib.). So also, we
fail to find in the patent the usual and apt words to create a
limitation, such as
while, so long as, until,
Page 170 U. S. 398
during, etc., 4 Kent,
ib.,, or words of
similar import. And, for reasons already stated, if we disregard
the absence of technical terms or provisions importing a condition
or limitation, and examine the deed with a view of eliciting the
clear intention of the parties, we are driven to the conclusion
that it was the intention of the grantors to convey their entire
estate in the land.
The cases mainly relied upon as supporting the claim of the
plaintiff in error that, by the patent, an estate was conveyed
which was "to be commensurate in duration with the purpose to be
answered by it" clearly present no analogy in their facts to the
case at bar. Thus, in
Kirk v. King, 3 Penn.St. 436, the
material parts of the conveyance reads as follows:
"Know all men by these present that I, Thomas McElroy, of Plum
Township in the County of Allegheny, for an in consideration of the
sum of 50 cents to me in hand paid, the receipt of which is hereby
acknowledged, have granted, bargained, and sold, and by these
presents do grant, bargain, and sell, to the employers of the
school at Plum Creek meeting house that lot of land, beginning
[describing it]; to have and to hold said lot for an English school
house, and no other purpose, for me, my heirs and assigns, to them
who are now, or may hereafter be, the employers of said school, to
have and to hold the same forever for said purpose."
"Witness my hand and seal,"
etc.
It will be noticed that the deed did not contain words of
inheritance or expressly purport to convey a fee simple, and in
Wright v. Linn, 9 Penn.St. 440, the decision in
Kirk
v. King was construed to hold that
"the legal title remained in the original owner, the 'school
company' having but an equity, which was thought to be dependent on
the agreement to use the ground 'for an English school house and
for no other purpose.'"
In other words, the deed was construed as making the substantial
consideration of the grant the erection of the school house, and as
though the land was conveyed, in terms, to the grantees, to have
and to hold the same so long as they used it for an English school
house. And the court, in the
Wright case, while
questioning the correctness of the holding
Page 170 U. S. 399
in the
Kirk case, that the deed there considered did
not establish a trust for a charitable use, not liable to be
defeated by nonuser, said (page 438):
"It has long been held that money given to build or repair a
church is given to a charitable use, and surely it must be agreed
that land given as the site of a public school house
prima
facie stands in the same category. It may be otherwise where
the object in the contemplation of the party is ephemeral, and the
subject sought to be promoted is intended to be of temporary
duration. This is the point which
Kirk v. King was made to
turn; and, where such is the case, perhaps the grant may be taken
as on an implied condition of reverter as soon as the temporary
object is accomplished. But such a condition should either
expressly appear or be unerringly indicated by the circumstances
attendant on the gift."
The object to be attained by the grant in the case a bar was,
however, not ephemeral in its character, the assurance being
expressly to the trustees, and their heirs and assigns, forever;
while the attendant circumstances we have heretofore alluded to
rebut any inference of an implied reverter.
Sheetz v. Fitzwater, 5 Penn.St. 126, also relied on,
was the case of a conveyance
"of a certain mill dam or pond of water, and mill race or stream
of water, issuing and proceeding from said mill dam or pond of
water, as the same is now situate, and being in and upon a certain
tract or parcel of land situate in the manor of Springfield,
together also with the site and soil of the said mill pond or dam
of water and race of water, and also one perch of land on each and
every side of the said pond or dam and race of water, to and for
the use and service of a certain mill, with the land thereto
belonging, and for no other use whatsoever."
The deed did not contain words of inheritance or expressly grant
a fee simple. The grant was of the mill dam, etc., and, in the same
sentence, the qualification was attached that it was for a
particular use only -- that is, "for the use and service of a
certain mill, with the land thereto belonging."
The mill pond having been drained and converted into a
Page 170 U. S. 400
meadow, the claim was made that there had been a diversion from
the purposes of the grant, and an action was commenced for the
taking of grass from the site of the mill pond. The trial judge
held that a fee simple estate in the land had not been conveyed,
but that it was the intention of the grantor to only convey a
qualified interest in the land or limited fee, and to retain a
reversionary interest, and that the estate in the grantee
determined on the abandonment of the use and service for which the
conveyance had been made, as stated in the deed. The appellate
court held this construction to be correct.
First Methodist Episcopal Church v. Old Columbia Public
Ground Co., 103 Penn.St. 608, is relied upon as sustaining the
proposition that where a deed refers to a certain mode of user of
the land conveyed, coupled with words such as "and for no other
use," a conditional estate is granted. The decision, however, does
not justify this broad statement. The action was ejectment. One
Wright had covenanted under seal to convey certain property to
named parties, their heirs or assigns, in fee simple, clear of all
encumbrances, in trust for the sole use of a company which might
thereafter be formed for the purpose of bringing a supply of water
into the Borough of Columbia, the grantees covenanting to give,
grant, and assure unto Wright, his heirs and assigns, when a
reservoir should be erected,
"the privilege of erecting a hydrant at said reservoir at his
own expense and for his own use, and shall have a supply of water
therefrom sufficient to water his cattle or stock or for the use of
a family at all times when the same is in repair or water
sufficient therein."
A deed was subsequently made to the water company, and that
corporation constructed a reservoir on the land, but subsequently
abandoned the same, filled up the reservoir, and sold the land, and
the purchaser erected a chapel thereon. Ejectment was brought by
the grantees of the heirs of Wright to recover possession of the
land. The trial judge held that, under the agreement first referred
to, the grantees took a base or qualified fee only, and when they
and their vendees ceased to use the land for a reservoir, it
reverted to Wright or his heirs.
Page 170 U. S. 401
The appellate court, however, held that a conditional estate had
not been created by the deed, and discussed the effect of the grant
solely as to whether an estate upon condition subsequent was
created. After reviewing various authorities holding that a mere
recital in a deed that it was made upon a certain consideration,
while it might create a covenant, would not raise a condition, the
court said (p. 614):
"Whatever words are relied on as creating a condition must not
only be such as of themselves would create a condition, but must be
so connected with the grant as to qualify or restrain it.
Labaree v. Carleton, 53 Me. 211. It was said by Mr. Chief
Justice Bigelow in
Packard v. Ames, 16 Gray, 327:"
"We know of no authority by which a grant declared to be for a
special purpose, without other words, can be held to be a
condition. On the contrary, it has always been held that such a
grant does not convey a conditional estate unless coupled with a
clause for the payment of money or the doing of some act by the
grantee on which the grant is clearly made to depend."
"To make the estate conditional, the words must clearly show
such intent.
Cook v. Trimble, 9 Watts, 15."
"Turning to the writing executed by Wright, we see that he
absolutely and unconditionally covenanted to convey the premises in
fee simple clear of all encumbrances to the vendees, their heirs or
assigns, whenever requested by them. No restraint was imposed on an
alienation of the land. No construction of a reservoir, nor any
work on the ground, was required to precede the right to demand a
deed. No clause provided for a forfeiture or termination of the
estate in case the land ceased to be used as a reservoir. No right
of reentry was reserved by the grantor on any contingency. No
technical word to create a condition was used. No other words were
used equivalent thereto or proper to create a condition. The
authorities show that the recital of the consideration and a
statement of the purpose for which the land is to be used are
wholly insufficient to create a conditional estate."
At page 613 of the opinion, it is true, the cases of
Kirk v.
King and
Scheetz v. Fitzwater are referred to as
though the
Page 170 U. S. 402
grants considered in those cases were of estates upon condition
subsequent, and as illustrating the proposition that words clearly
equivalent to the technical words usually employed to create a
condition would be sufficient. Weight was attached to the
circumstance that the grants in those cases were expressed to be
for a particular named use, "and no other purpose;" but it is
manifest that importance was attached not alone to the emphatic
statement of the particular use expressed, but to that language
coupled with the other provisions of the grant.
But manifestly, under the authorities referred to in the
Slegel case, which we have above cited, the declaration of
the purposes contained in the patent under consideration had not
the effect of qualifying or limiting the estate in fee expressly
granted to the trustees for the benefit of the inhabitants of the
county, and which has since become vested, by act of the
legislature, in the County of Northampton. Without, however,
positively determining whether the estate in the county is held
charged with a trust for a charitable use, or is an unrestricted
fee simple on the theory that the trustees were merely the link for
passing the title authorized by the act of 1752,
Brendle v.
German Reformed Congregation, 33 Penn.St. 415, 425, we hold
that the trial court did not err in directing a verdict for the
defendant, and the judgment of the circuit court of appeals must
therefore be
Affirmed.
MR. JUSTICE BROWN concurs in the result.
