The following opinion was filed March 13, 1883:
Cole, O. J.
One desiring to trace the history of this litigation in this court will find it in 47 Wis.-, 354, and 52 Wis., 669. On the 3d of September, 1880, prior to the last decision, this action at law was commenced to recover the premises known as “ Seminary Park,” for condition broken. On the trial of this action the plaintiffs were permitted to show, by parol evidence, against the objection of the defendants, that the lost bond for a deed, which was given by the plaintiff David L. in August, 1855, contained, among other things, the condition that the premises thereby agreed to be conveyed to the defendant corporation were to be used as a • site for seminary grounds and buildings only, and that the title should revert to the plaintiffs when they ceased to be used for such purposes. The plaintiffs were likewise permitted to show by parol, against objection, that when the deed was given, pursuant to the bond, on the 14th of September, 1859, without any such condition being inserted therein, the understanding was that they did not waive the condition, but that the same should continue and remain in force. The plaintiffs claim that they showed by the evidence introduced on the trial that the grounds and buildings had been in fact abandoned by the defendant for seminary purposes; consequently that the title had reverted to them as the reversionary owners. The learned circuit court sustained that view, and gave judgment accordingly.
• A number of exceptions are relied on here for a reversal of this judgment. In the first place, it is insisted that the court below erred in admitting evidence to contradict or vary the language of the deed, which in terms granted an indefeasible estate. It is said that even if the alleged con[140]*140dition as to user and reversion was in the preliminary contract, it was not inserted in the deed, which superseded all prior negotiations and agreements on the same subject; therefore it must be considered as waived. Further, it is argued that the plaintiff’s own testimony given on the trial shows that the condition was intentionally waived so far as the mortgage to raise $1,000 to complete the building was concerned, and having been once dispensed with it is said it is gone forever. There is undeniably great force in this argument, but whether it is sound when applied to the facts of this case we do not feel called upon to determine. Nor shall we consider the position that the alleged condition in the bond could not co-exist or would not survive the execution of an absolute deed by the plaintiffs. We are relieved from deciding these grave questions because we think the proof fails to show such an abandonment of the premises for seminary purposes as would work a forfeiture of the estate, assuming the condition of the bond to be in force.
It is elementary law that such conditions are most strongly construed against the grantor, and that a forfeiture will not be enforced unless clearly established. It is doubtless true, as claimed by defendants’ counsel, that courts do not hasten to seize upon mistake or neglect, or even misuser of property, to adjudge a forfeiture in cases of this nature. Now, according to the testimony of Mr. Mills, the condition was that the premises should be used as a site for a seminary building and grounds only,— the title to revert to the grantors when the property should cease to be used for seminary purposes. The condition imposed upon the defendant corporation the duty of keeping up and maintaining, or causing to be kept up and maintained, an educational institution on the land — a school or academy where young persons could be instructed in the several branches of knowledge and science. But the parties doubtless expected that there would be interruptions in the school for one reason or [141]*141another, and for longer or shorter periods. But such interruptions would not operate as a breach unless they amounted to an absolute and final abandonment of the property for seminary purposes. It is admitted that the seminary building and grounds were used for seminary purposes until the spring of 1874. From that time up to about the commencement of this suit there was no school kept in the building. It does not appear that this was due to any neglect or failure of the officers of the defendant to encourage a school, hut was owing, doubtless, to a want of funds and public patronage to support one. Consequently, the school ran down and was discontinued for some years. In the spring of 1880, however, the buildings were repaired at an expense of $2,700, and a school was opened in them in the fall of that year, which has been continued to the time of trial. The evidence shows that the plaintiff forbade the making of these repairs, claiming that a forfeiture had already occurred in consequence of the following acts on the part of the officers of the defendant:
It appears that in December, 1875, the trustees of the seminary called a meeting of the legal voters of the corporation, to be held on the 6th of January, 1876, to take into consideration what should be done with the seminary property. At this meeting in January, which was attended by only a minority of the voters, a resolution was adopted which stated in substance that the seminary had beei? abandoned as an institution of learning, and all efforts to induce any other denomination to accept the property and endow and maintain a school there had failed; that as the property in its unprotected condition would soon run down and become worthless, the board of trustees was empowered and directed to deed the seminary property to a corporation recently organized in the village, known as the Evansville Boot & Shoe Company. Mr. Mills was present at this meeting and voted against the resolution, and we think it appears that he al[142]*142ways resisted that disposition, of the property. Still, the Evansville Seminary, by its officers, deeded the property January 19, 1876, to the Evansville Boot & Shoe Company. Before this deed was executed- the plaintiffs made a written demand of the Evansville Seminary to surrender to them the “Seminary Park” as reversionary owners. But though the property was conveyed to the boot and shoe company, that corporation never took possession of it or assumed to control it, the possession practically remaining all the while in the seminary corporation. On the 22d of December, 1879, the boot and shoe company reconveyed the property to the defendant corporation.
The court below held that the acts and doings of the legal voters of the seminary at the meeting in January, 1876, especially in conveying the property to the boot and shoe company by an absolute warranty deed, broke the condition and showed an intention to totally abandon the property. That these acts were wholly unauthorized and would constitute a breach, had the- matter rested there, may be admitted. But it will be borne in mind that the property was recon-veyed to the Evansville Seminary prior to the commencement of this suit. The seminary building was repaired and a school opened in it at about that time. When the plaintiffs brought this action to recover the property, indisputably it-was used for the object designated; certainly it could not justly be said that it was totally abandoned for seminary purposes. Though a small minority of the legal voters attempted to pervert the grant by conveying the property to the boot and shoe company, yet this project was subsequently abandoned and the premises were reconveyed to the seminary. But during this time the possession was not changed.
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The following opinion was filed March 13, 1883:
Cole, O. J.
One desiring to trace the history of this litigation in this court will find it in 47 Wis.-, 354, and 52 Wis., 669. On the 3d of September, 1880, prior to the last decision, this action at law was commenced to recover the premises known as “ Seminary Park,” for condition broken. On the trial of this action the plaintiffs were permitted to show, by parol evidence, against the objection of the defendants, that the lost bond for a deed, which was given by the plaintiff David L. in August, 1855, contained, among other things, the condition that the premises thereby agreed to be conveyed to the defendant corporation were to be used as a • site for seminary grounds and buildings only, and that the title should revert to the plaintiffs when they ceased to be used for such purposes. The plaintiffs were likewise permitted to show by parol, against objection, that when the deed was given, pursuant to the bond, on the 14th of September, 1859, without any such condition being inserted therein, the understanding was that they did not waive the condition, but that the same should continue and remain in force. The plaintiffs claim that they showed by the evidence introduced on the trial that the grounds and buildings had been in fact abandoned by the defendant for seminary purposes; consequently that the title had reverted to them as the reversionary owners. The learned circuit court sustained that view, and gave judgment accordingly.
• A number of exceptions are relied on here for a reversal of this judgment. In the first place, it is insisted that the court below erred in admitting evidence to contradict or vary the language of the deed, which in terms granted an indefeasible estate. It is said that even if the alleged con[140]*140dition as to user and reversion was in the preliminary contract, it was not inserted in the deed, which superseded all prior negotiations and agreements on the same subject; therefore it must be considered as waived. Further, it is argued that the plaintiff’s own testimony given on the trial shows that the condition was intentionally waived so far as the mortgage to raise $1,000 to complete the building was concerned, and having been once dispensed with it is said it is gone forever. There is undeniably great force in this argument, but whether it is sound when applied to the facts of this case we do not feel called upon to determine. Nor shall we consider the position that the alleged condition in the bond could not co-exist or would not survive the execution of an absolute deed by the plaintiffs. We are relieved from deciding these grave questions because we think the proof fails to show such an abandonment of the premises for seminary purposes as would work a forfeiture of the estate, assuming the condition of the bond to be in force.
It is elementary law that such conditions are most strongly construed against the grantor, and that a forfeiture will not be enforced unless clearly established. It is doubtless true, as claimed by defendants’ counsel, that courts do not hasten to seize upon mistake or neglect, or even misuser of property, to adjudge a forfeiture in cases of this nature. Now, according to the testimony of Mr. Mills, the condition was that the premises should be used as a site for a seminary building and grounds only,— the title to revert to the grantors when the property should cease to be used for seminary purposes. The condition imposed upon the defendant corporation the duty of keeping up and maintaining, or causing to be kept up and maintained, an educational institution on the land — a school or academy where young persons could be instructed in the several branches of knowledge and science. But the parties doubtless expected that there would be interruptions in the school for one reason or [141]*141another, and for longer or shorter periods. But such interruptions would not operate as a breach unless they amounted to an absolute and final abandonment of the property for seminary purposes. It is admitted that the seminary building and grounds were used for seminary purposes until the spring of 1874. From that time up to about the commencement of this suit there was no school kept in the building. It does not appear that this was due to any neglect or failure of the officers of the defendant to encourage a school, hut was owing, doubtless, to a want of funds and public patronage to support one. Consequently, the school ran down and was discontinued for some years. In the spring of 1880, however, the buildings were repaired at an expense of $2,700, and a school was opened in them in the fall of that year, which has been continued to the time of trial. The evidence shows that the plaintiff forbade the making of these repairs, claiming that a forfeiture had already occurred in consequence of the following acts on the part of the officers of the defendant:
It appears that in December, 1875, the trustees of the seminary called a meeting of the legal voters of the corporation, to be held on the 6th of January, 1876, to take into consideration what should be done with the seminary property. At this meeting in January, which was attended by only a minority of the voters, a resolution was adopted which stated in substance that the seminary had beei? abandoned as an institution of learning, and all efforts to induce any other denomination to accept the property and endow and maintain a school there had failed; that as the property in its unprotected condition would soon run down and become worthless, the board of trustees was empowered and directed to deed the seminary property to a corporation recently organized in the village, known as the Evansville Boot & Shoe Company. Mr. Mills was present at this meeting and voted against the resolution, and we think it appears that he al[142]*142ways resisted that disposition, of the property. Still, the Evansville Seminary, by its officers, deeded the property January 19, 1876, to the Evansville Boot & Shoe Company. Before this deed was executed- the plaintiffs made a written demand of the Evansville Seminary to surrender to them the “Seminary Park” as reversionary owners. But though the property was conveyed to the boot and shoe company, that corporation never took possession of it or assumed to control it, the possession practically remaining all the while in the seminary corporation. On the 22d of December, 1879, the boot and shoe company reconveyed the property to the defendant corporation.
The court below held that the acts and doings of the legal voters of the seminary at the meeting in January, 1876, especially in conveying the property to the boot and shoe company by an absolute warranty deed, broke the condition and showed an intention to totally abandon the property. That these acts were wholly unauthorized and would constitute a breach, had the- matter rested there, may be admitted. But it will be borne in mind that the property was recon-veyed to the Evansville Seminary prior to the commencement of this suit. The seminary building was repaired and a school opened in it at about that time. When the plaintiffs brought this action to recover the property, indisputably it-was used for the object designated; certainly it could not justly be said that it was totally abandoned for seminary purposes. Though a small minority of the legal voters attempted to pervert the grant by conveying the property to the boot and shoe company, yet this project was subsequently abandoned and the premises were reconveyed to the seminary. But during this time the possession was not changed. Such being the case, we do not think the plaintiffs can claim the property for condition broken, for there has been no to tal-abandonment of it for seminary purposes. The failure to maintain a school in the building for a considerable pe[143]*143riod, it appears, resulted from causes which, the trustees could not well overcome or control, and ought not to work a forfeiture. True, they conveyed away the property, and did acts quite inconsistent with the due performance of their duty. But they have retraced their steps, and are now using the property for the purpose designated by the grantors. ¥e have referred to’ the rule of law that these conditions are strictly construed so as to avoid a breach. The authorities upon that point are most clear and emphatic. Counsel have referred to many of them in their briefs. We do not deem it necessary to .notice them in detail.
Osgood v. Abbott, 58 Me., 73, is a strong case, and shows, how far courts go in placing a favorable construction upon the acts of parties, in order to prevent a forfeiture. In that case property was donated for a meeting-house lot, with a condition in the deed that it should revert to the grantor unless it was improved for that purpose. A building was erected upon the lot, which was used for religious services for some years. In the year 1859 the building ceased to be used for such purposes. The house was suffered to get out of repair; the stoves and furniture were removed, and no religious services were held in the house until 1866, though slight repairs had been made upon upon it from, time to time. It was claimed by the heirs and personal representatives of the grantor that there had been a forfeiture of the estate for condition broken. But the court decided otherwise, notwithstanding the evidence showed neglect and remi ssness on the part of the proprietors of the society in maintaining services in the building. This case, in its essential facts, is similar to the one at bar. While, then, the premises in question are used for seminary purposes the alleged condition is fully satisfied. And though the acts and declarations of the trustees and of some of the legal voters, which have been commented on, evince an intention to abandon the property for seminary purposes, still the evidence conclusively shows [144]*144that there has been no abandonment in fact. Both, the title and possession are in the defendant corporation, and the building was actually opened for a school about the time this action was commenced. In view of these facts, we think the plaintiffs should not be allowed to assert that a forfeiture has occurred, and recover the property.
By the Court.— The judgment of the circuit court is reversed, and the cause is remanded with directions to dismiss the complaint.
Cassoday, J., took no part.
A motion for a rehearing was denied September 11,1883.