Eyssen v. Zeppa

100 S.W.2d 417
CourtCourt of Appeals of Texas
DecidedDecember 12, 1936
DocketNo. 5022
StatusPublished
Cited by5 cases

This text of 100 S.W.2d 417 (Eyssen v. Zeppa) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Eyssen v. Zeppa, 100 S.W.2d 417 (Tex. Ct. App. 1936).

Opinion

HALL, Justice.

Appellees brought this suit in the special district court of Rusk county against appellants in trespass to try title to one acre of land. Appellees comprise the Trustees of Leverett’s Chapel Independent School District of Rusk County, alleged owners of the land in fee, and their lessee and as-signee. ■ Appellants answered by general demurrer, general denial, and plea of not guilty, and alleged further that the land in controversy was a part of a larger tract owned by them; that on September 3, 1914, their predecessors in title, Richard Wells and wife, conveyed the one acre of land in controversy to certain parties as Trustees of Common School District No. 29 of Rusk County to be held by them only “so long as said tract or parcel of land is used for school purposes”; that said tract of land has long since been abandoned for school purposes and appellees no longer have any interest therein. The appellants comprise the owners of the larger tract out of which the tract in controversy was carved in 1914, and the owners of mineral interests in the larger tract. Trial was to the court without a jury, which resulted in judgment for appellees for the title and possession of the one acre of land in controversy. From this judgment appellants prosecute their appeal to this court.

The record reveals that on September 3, 1914, Richard Wells and wife conveyed the land in controversy, part of a larger tract, to Common School District No. 29 of Rusk County, Texas, by the following deed:

“State of Texas, County of Gregg
“Know all Men by These Presents:
“That we, Richard Wells and wife, Mary Wells, of the County of Rusk, State of Texas, for and in consideration of the sum of One and No/100 Dollars to us paid, by H. Baton, H. C. Russell and H. P. Lev-erett, Trustees of Common School District No. 29, Rusk County, Texas, as follows :
“Cash in hand receipt of which is hereby acknowledged, have granted, sold and conveyed, and by these presents do grant, sell and convey, unto the said H. Baton, H. C. Russell and H. P. Leverett, Trustees for said Common School District No. 29, Rusk County, Texas, of the County of Rusk, State of Texas, all that certain lot, [418]*418tract or parcel of land situated in Rusk County,. Texas, about 14 miles north of the town of Henderson and on the Overton and Leverett’s Chapel Public Road, near the center of the original one hundred and forty (140) acres of land deeded to Richard Wells by J. M. Thompson and being a part of the Henry Hobson Survey said land herein conveyed being more fully described, to-*it:”
(Here follows description of land conveyed)
“To have and to hold the above, described premises, together with all and singular the rights and appurtenances thereto in anywise belonging unto the said H. Baton, H. C. Russell and H. P. Lever ett, Trustees for said Common School District No. 29, Rusk County, Texas, their successors forever, so long as said tract or parcel of land is used for school purposes; and we do hereby bind ourselves, our heirs, executors and administrators to Warrant and Forever Defend, all and singular the said premises unto the said H. Baton, H. C. Russell and H. P. Lever ett, Trustees for said Common School District No. 29, their successors, against every person whomsoever, lawfully claiming or to claim the same, or any part thereof.
“Witness our hands at Kilgore, Texas, this 3rd day of September, A. D. 1914.
my “Richard X Wells
“Mary Wells.”

The trial court found as a fact that the land had been abandoned for school purposes several years before the trial, and the evidence showed that it was abandoned for school purposes several years before the discovery of oil in Rusk county. The trial court also found as a fact that Common School District No. 29 of Rusk County had been organized as an independent school district under the'name of Leverett’s Chapel Independent School District of Rusk County, Tex. It was agreed that Richard Wells and wife were the common source of title and that appellants “have and hold all the title to the land and minerals involved in this suit which were on January 1, 1930, held by said Richard Wells and the heirs of his wife.”.

Appellants’ first proposition is: “Where the consideration in a deed is shown to be $1.00 paid by school trustees, and the land is deeded to such trustees, and the haben-dum in such deed runs to such trustees and ‘their successors forever, so long as said tract or parcel of land is used for school purposes’; the deed does not convey a fee simple title to such trustees, and when the school lot is no longer used for school purposes, and repossessed by the grantor in such deed, the title reverts to such grantor or'his heirs.”

We are of the opinion that this is a correct proposition of law. By the plain terms of the deed conveying the land in controversy to the school trustees, it is apparent that the grantors and the grantees intended the fee to be limited as to its duration as well as to the use to which it was to be put. The grantees were to own and possess the property “so long as same is used for school purposes.” They took the deed with this limitation plainly appearing in the face thereof. The school trustees alone could determine the length of time said property could be held and possessed. The terms of the deed are not ambiguous and its full meaning can be ascertained from its contents without resort to extrinsic evidence. If it were not the intention of the parties to this deed that the title to the land conveyed thereby should revert to the grantor upon the happening of a contingency, to wit, the abandonment of the property for school purposes, why did they insert the words “so long as such tract or parcel of land is used for school purposes”? These quoted words, in our opinion, fixed a conditional limitation on the title to the land conveyed and as such required no re-entry by the grantor to re-vest the title in him; although the record shows that Richard Wells did actually take possession of said land after it had been abandoned for school purposes and farmed it for several years before oil was discovered in Rusk county. In Green v. Gresham, 21 Tex.Civ.App. 601, 53 S.W. 382, 384, the court, in disposing of a question almost identical with the one here, had this to say: “In the opinion already filed, reversing the judgment in this case, we pre-termití ed any expression of opinion on the question of the right of the appellees, the vendees of Settle and wife, to maintain this suit. It is now. insisted that this may be taken upon another trial as an intimation by this court prejudicial to the appel-lees, and we are therefore requested to determine this question upon the authorities cited in the motion for rehearing; the contention being that the qualifying clause, ‘so long as said lands shall be used by said district for school purposes,’ was but a conditional- limitation, and not a condition [419]*419subsequent. The authority cited to support this proposition (2 Washb. Real Prop, pp. 25-27) seems to sustain it. Among other cases cited in the footnotes is that of Ashley v. Warner, 11 Gray [Mass.] 43, in which the court used the following language : ‘Goodale declined to give the plaintiff a lease, but told him “that so long as he kept a good school he might have his share of the building.” This agreement of Goodale gave the plaintiff a tenancy at will, but a tenancy with a conditional limitation.

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100 S.W.2d 417, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eyssen-v-zeppa-texapp-1936.