Moore v. Wells

93 S.E.2d 731, 212 Ga. 446, 1956 Ga. LEXIS 405
CourtSupreme Court of Georgia
DecidedJune 11, 1956
Docket19287
StatusPublished
Cited by13 cases

This text of 93 S.E.2d 731 (Moore v. Wells) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Moore v. Wells, 93 S.E.2d 731, 212 Ga. 446, 1956 Ga. LEXIS 405 (Ga. 1956).

Opinions

Head, Justice.

Primarily, the rights of the parties in the present case are controlled by the conveyance to the school district. A construction of this conveyance is essential to a determination of the cause. “In the construction of deeds, as well as other contracts, the paramount, essential, and controlling rule is to ascertain the intention of the parties. If that intention is plain from the language of the deed as a whole, and the intention contravenes no rule of law, it should be given effect . . .” Keith v. Chastain, 157 Ga. 1 (1) (121 S. E. 233); Mayor &c. of Savannah v. Barnes, 148 Ga. 317, 319 (96 S. E. 625); Guess v. Morgan, 196 Ga. 265, 269 (26 S. E. 2d 424); Jackson v. Rogers, 205 Ga. 581 (54 S. E. 2d 132); Danielsville & Comer Telephone Co. v. Sanders, 209 Ga. 144 (71 S. E. 2d 226); Floyd v. Carswell, 211 Ga. 36, 40 (83 S. E. 2d 586); Code § 29-109.

“An estate may be granted upon a condition, either express or implied, upon performance or breach of which the estate shall either commence, be enlarged, or be defeated.” Code § 85-901. A grantee is bound by the conditions in a deed which he accepts and under which he claims, although the deed has not been signed by him. Code § 29-102; Lawson v. Lewis, 205 Ga. 227 (1) (52 S. E. 2d 859), and citations.

In the act of Congress providing for the conveyance, without consideration, to the New Salem School District, the Secretary of [450]*450the Interior was authorized to make the conveyance on such "terms and conditions” as he might deem advisable. U. S. Stat., Yol. 53, part 2, p. 1275. The word “terms” is defined as “propositions, limitations, or provisions, stated or- offered, as in contracts, for the acceptance of another and determining the nature and scope of the agreement.” Webster’s Int. Dictionary, 2d ed., p. 2604.

The terms of the grant made in 1940 to the New Salem School District, pursuant to the act of Congress, impose a limitation upon the estate conveyed. Immediately following the description of the property it is stipulated: “Provided always, that this conveyance is made upon the express condition and limitation that the above-described premises shall be limited to the retention and use for public school purposes only.” (Italics ours.) The words “limitation” and “limited to” are sufficient within themselves to impose a limitation on the existence of the estate conveyed. Apparently, however, in order to eliminate any doubt as to the interest conveyed, the deed further recites that, “upon such cessation of such retention and use [the premises] shall revert to the United States of America its successors or assigns, without notice, demand or action brought.” (Italics ours.) By the words "without notice, demand or action brought,” the grantor clearly intended a limitation on the estate conveyed, since only by a limitation would the estate revert to the grantor without notice, demand, or action brought.

In Norris v. Milner, 20 Ga. 563, it was said that the action was brought to recover a lot which had been conveyed to- the plaintiffs as trustess for a school lot, with the provision “that whenever it should cease to be used for that purpose, the land should revert to the grantors, and the grantees should be authorized to remove such buildings as they might have erected.” In the Norris case this court said that the interest conveyed was a conditional estate, but in reaching this conclusion the court defined the distinction between a condition and a limitation as follows: “A condition does not defeat the estate, although it be broken, until entry by the grantor o.r his heirs. And conditions can only be reserved for the benefit of the grantor and his heirs. And this constitutes the distinction between a condition and a limitation. By the latter, the estate is determined when the period of limitation arrives [451]*451without entry or claim. And no act is requisite to vest the right in him who has the next expectant interest.”

In Mayor &c. of Macon v. East Tennessee &c. Ry. Co., 82 Ga. 501, 509 (9 S. E. 1127), it was held: “There can be no doubt that if the Macon & Brunswick company accepted the grant on the terms fixed by the city council of Macon (and it could accept on no other), it was with the limitation that the estate acquired was to exist only so long as the property was used for the purposes specified in the act. Such a limitation is distinguished from an ordinary condition subsequent, inasmuch as it marks the limit or boundary beyond which the estate conveyed could not continue to exist.” See also Atlanta Consolidated Street Ry. Co. v. Jackson, 108 Ga. 634 (1) (34 S. E. 184); Lawson v. Georgia Southern &c. Ry. Co., 142 Ga. 14, 17 (82 S. E. 233). In the latter case this court quoted with approval from Norris v. Milner, supra, the distinction between a limitation and a condition, as follows: “A limitation in a deed determines the estate when the period of limitation arrives, without entry or claim. But a condition does not defeat the estate, although it be broken, until entry of the grantor or his heirs.” The court then said: “Where a deed contains a limitation, the estate determines upon the happening of the event upon which it is limited, and, if the limitation is not to another, goes over to the grantor or his heirs by reverter without necessity of re-entry.”

The distinction between a condition and a limitation as stated in Lawson v. Georgia Southern &c. Ry. Co., supra, is in accord with the general rule. See 31 C. J. S. 30-34, § 20; Thompson on Real Property, vol. 4, pp. 699-704, §§ 2156-2158; Restatement of the Law of Real Property, American Law Institute, vol. 1, p. 55, §§ 23-24; 19 Am. Jur. 530, § 67.

Under the authorities cited, the conveyance to the New Salem School District was of an estate upon a limitation, and the contention that the conveyance created a trust can not be sustained. While educational purposes are proper matters of charity (Code § 108-203), and while no forma! words are necessary to create a trust estate, there must be a manifest intention to do so. Code § 108-102; 54 Am. Jur. 64, § 53.

The plaintiff relies strongly on the decisions of this court in Dominy v. Stanley, 162 Ga. 211 (133 S. E. 245); and Duffee v. [452]*452Jones, 208 Ga. 639 (68 S. E. 2d 699). In the Dominy and Duffee cases the conveyances were to trustees, and their successors in office, and the conveyances clearly evidenced the intention of the grantors that the trustees should not hold the property for their own benefit, but that the property should be held by the trustees, and their successors in office, for school purposes.

In the deed to the New Salem School District no trustees are named; no trust is declared; no beneficiaries are named; and the requisites of a trust are not otherwise indicated. . In Andrews v. Atlanta Real Estate Co., 92 Ga. 260 (18 S. E.

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Moore v. Wells
93 S.E.2d 731 (Supreme Court of Georgia, 1956)

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Bluebook (online)
93 S.E.2d 731, 212 Ga. 446, 1956 Ga. LEXIS 405, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moore-v-wells-ga-1956.