Gage v. School-District No. 7

9 A. 387, 64 N.H. 232

• Court: Supreme Court of New Hampshire
• Decided: December 5, 1886
• Status: Published

Opinion

Doe, C. J.

The deed by'which William H. Gage conveyed the land to Penacook Academy contained a proviso that “ said corporation and its assigns shall erect and forever maintain ” a fence. By another proviso, the corporation was to build a school-house on the land within two years, and the land and buildings were never to “ be devoted to any other use than a location for a school-house, teachers’ house, and the necessary buildings and other purposes of an academy or public school.” The words “ assigns ” and “ academy or public school,” and the general educational purpose of the grant are sufficient to show that the corporation could convey the land to the defendants for the purposes of a public school.

The mortgage and what was done by the mortgagees did not work a' forfeiture. A foreclosure of the mortgage is not found, and there is no evidence upon which it can be held as matter of law that there was a foreclosure. The mortgagees’ conveyance to the defendants may operate as a release of the mortgage; but it did not give a good title. The title passed to the defendants by the deed which the corporation gave them. The mortgagees’ acts, of which the plaintiff complains, were harmless.

The land was to revert when it Qeased, for the space of two years together, “to be used for such purposes.” If by “such purposes ” the parties meant a school in operation, there was a forfeiture. “ Such purposes ” were those previously mentioned in the stipulation that the land should never “ be devoted to any other use than a location for a school-house, teachers’ house, and the necessary buildings and other purposes of an academy or public school.” Taken literally, this does not require a school every two years; and it is not such language as would be likely to be chosen for such a requirement. If the parties had intended there should be a forfeiture when two ■ years passed without a school on the premises, this intention would naturally have .been expressed in more direct and unambiguous terms. The land was not “ devoted to any other use than a location for a school-house ; ” and there ■was no abandonment or ruin. The premises remained in good condition and ready for educational use; and there is no evidence on which it can be found that the non-user was so unreasonable in duration as to defeat the purpose of the grant..

Judgment for the defendants.

Carpenter, J., did not sit: the others concurred.