School Committee v. . Kesler

67 N.C. 443

• Court: Supreme Court of North Carolina
• Decided: June 5, 1872
• Status: Published

Opinion

Peakson, O. J.

Many points were made in the Court below, but we will notice only the three that were urged on the argument here. ,

1. The deed, under which the plaintiff makes title, conveys 'the locus in quo, to the School Committee of the thirty-eighth district of common schools and their sxiccessors in office, ot the comity of Rowan. The deed was executed in 1848, and the plaintiff is not the successor ot the school committee existing at that date.

We think it entirely clear, that the .plaintiff' is the successor of the School Committee ot the thirty-eighth district of common schools of the county of Rowan, existing at the date of the deed, and as such successor, is entitled to all ot tho property, and is subject to all ot the liabilities of its predecessor, acc rding to the Constitution and legislation in regard to common schools ; in the same -way that- the Commissioners of a county are the successors of the justices of the county, under the old system, in regard to the executive duties, rights and liabilities <4 such justices. Carson v. Commissioners of Cleaveland, 64 N. C. 566. Indeed, our caséis stronger ; for the .functions ot the Justices of the Peace, as a corporation, were divided; its judicial l'nn-ctkms being transferred to the’Superior Courts, ai.d the Courts-of-Justices of the Peace, while only its executive functions are transferred to the Commissioners of the county : still it fa -held that the Commissioners of the county, although not the representative of the Justices of the Peace, are the successors of the-J ustiees of the Peace, entitled to their property and liable for their contracts-; whereas the func tions of the school commit eos-of districts, under tho old system are all transferred to the scho.dl committees of the townships, and are-incidental departures dorm the exact limits of the di*~. trict. Tins-can ••make no-difference, provided tho township ¡includes the school house and is substantially the same territory or section of-the county, as'in our case.

■ 2. The deed contains this 'qualification : As long as the ■system of common schools shall be continued at that place, or •<as long as'it-shall not be applied to any other purpose except ifor schools of any kind.’ This -clause, it fa kisfated, has the 'legal effect to make themstate of the School Committee tor dfafiititNo. 88, ex fa ting'in 1848, a “base or qualified fee” to said ©ommittee and its successors, ¡so long as the ■then existing sys tern, of public or common schools shall be in force j. but the estate terminated, by its own limitation, when the system of common schools was changed and a new system was adopted. An estate to A and his heirs, tenants oí the. manor of Dale, is at an end as soon as they cease to be tenants of the manor oí Dale.

There has been but one instance of a “ base or qualified fee. ” in this State. That is the ease oí the Cherokee tribe of Indians,, in the western part of the State. The tribe was permitted to hold the land,.so long as it continued to occupy the territory. ■ As-soon as the Indians were removed by the Government of the United States west of the Mississippi, the title of the State was freed.oh the incumbrance.. The occupancy of the Indians was looked upon rather, as an analogous incumbrance, than an actual “ base or qualified estate.” It would be something new under the sun, it the addition of a few unnecessary words in a deed of Tobias Eesler to a school committee, for a quarter of an acre of land, of the value of one dollar, can have the legal effect to revive this obsolete estate, which has never been “ in force or in use in this State, or recognized by its laws. Suppose it to have been the intention of Kesler, in limiting the estate to the school committee or its successors,, to add a qualification, that the estate of the school committee should be at an end whenever the house,, which should be erected on the parcel of land, was used for any other purpose ■than a school house for. boys, or a school house for girls, it being his conviction that males and females should not go to the same school, or whenever the house was used for any other purpose than a school house for white children, or for free colored children, it being his conviction that white and colored children should not go to the same school, and that proper and apt terms had been set oufein the deed to make this qualification. It would seem that the Courts could not give effect to this intention, for several reasons. Among others, it is against public policy; for “ great detriment would, arise and much con fusion of rights, if parties were allowed to invent new modes of holding and enjoying real property, and to impress upon, land a peculiar character which should follow the land into all hands, however remote.” Keppel v. Bailey, 2, 577, cited in Blount v. Harvey, 6 Jones 186.

II. It is an attempt to substitute the notions and caprice of individuals, in the place of the wisdom and discretion of the-General Assembly, and to take from the legislative department of; the Government the power to regulate and control the system of common schools..

III. The school committee, under its power to acquire suitable sites for school houses by purchase or donation, were not authorized to accept a site and erect school houses thereon at the public expense, if the title to the land was clogged by any such condition or qualification. The condition or qualification being repugnant, and inconsistent with the object of the grant,, is void,and must be rejected, in the same way that a condition annexed-to an estate in fee simple, that the grantee shall not alien,..or to an estate tail, that the donee shall not levy a fine or suffer a common recovery, is rejected and treated as surplusage, as repugnant to the nature of the estate.

IV. In this instance, the condition or qualification has not, as yet, been violated, for the school law.p-rovides, “ The school committees shall consult the convenience of white residents, in setting the boundaries of- districts for white schools, and of colored residents, in setting the boundaries of colored schools. The schools of the two races shall be separate, &c.” So the condition or qualification has not been violated, and the estate of the committee still continues. It will be time enough to determine the rights of the grantee, when the contingency happens.

But a decisive reply, to the position assumed by the counsel, is, that the deed does not contain apt and proper terms to create a condition, or a qualification, or even a covenant to run with the land. See Norfleet v. Cromwell, 64 N. C., 1. So the position has nothing to rest on. The clause is, “ as long as the system of common schools shall be continued, &c.” It is not restricted to the system of common schools existing at the date of the deed; that is very properly left to be regulated by law-; and the amount of the qualification is, that the parcel of land shall be used for no oilier purpose except for schools of any ¡kind,” and when the system of common schools shall be abrogated and the School Committee shall cease to exist, as a corporation, the estate shall tei tímate, which is neither mm e nor less than the law implies. So this clause is mere surplus-age, .inserted by a draftsman, not bkilkd in regard to the legal eilect. of deeds to corporations.

8. The grantee was an illiterate man, unable to read, and demanded that the deed should be read to him. This was refused, and the deed is of no legal effect.

This is a rule of the comm n law, adopted to prevent fraud and circumvention, if a grantee, although an illiterate man, executes a deed without demanding that it should be read, the deed takes ifleet; here there was a demand, but there was no refusal/ for Peeler excused himself, by frankly admitting that he also was unable to read the deed. This fact, which is conceded to be true, puts fraud and circumvention out of the question. Keeler then had his election, cither to decline to execute the deed, until some person was procured to read it to him, or else to waive his demand to have it read and “ go it blind,” in the strong language of his Honor in the court below. He elected to waive a demand to have the deed read to him, and so the ■case stands, as if he had executed the deed without requiring it to be read, and the rule has no application. It only applie» to cases where the grantee or the person who, as his agent, applies to have the deed executed, is called on to read it, and refuse* or declines to do so, under &om& false pretence, and in this way procures the execution of the deed by fraud and ciicumvention.

The point, that the action cannot be maintained, unless the plaintiff was in the actual or constructive possession of the locus in quo, at the time of the alleged trespass, is excluded by the verdict, for the jury find that the .plaintiff was “ lawfully possessed.”

There is no error.

•Per Curiam. Judgment affirmed.