Sumner et al. v. Darnell.

cers. The statute in force at that time did not, as does the present one, designate the corporate name and style to be assumed by boards of commissioners (act approved December 17, 1816), and the form used in this deed was, at that time, commonly used in conveying property to corporations and quasi corporations in this State. It is significant, also, that the entry made upon the county records by the board of commissioners, in accepting the deed, was for a deed "to and for the use of Wayne county." See, also, Carder v. Board, etc., 16 Ohio St. 353; Hayward v. Davidson, 41 Ind.

212.

Another position taken by the appellants is stated in their brief as follows:

"But this is not all we rely upon. The total failure of the consideration of the Sumner deed itself worked a loss of the county's claim and gave to the Sumner heirs the right to assert their title to the square, independent of the condition subsequent.”

No authority is cited in support of this position, and we know of none that will sustain it. The duration or stability of the title to land does not ordinarily depend upon the certainty or stability of the consideration paid for it. But, independently of the legal question involved, the finding informs us that the county-seat remained at Centreville from the 1st day of August, 1817, until the year 1873, long after the grantor had removed from the county. We may reasonably suppose that, if the location of the county-seat at Centreville was of advantage to the grantor, he must have received some of the benefits during the half century it remained there, and that consequently there was not an entire failure of consideration. Hunt v. Beeson, 18 Ind. 380; Jeffersonville, etc., R. R. Co. v. Barbour, 89 Ind. 375.

The remaining, and principal, contention of the appellants is, that the conveyance of the land to, or for, the use of the county was conditioned on the seat of justice of Wayne

Sumner et al. v. Darnell.

county remaining permanently at Centreville, and that its removal to Richmond caused the land to revert to the appellants, as the heirs of the grantor.

The rule of strict construction applicable to conditions subsequent, usually expressed in the words, "Conditions subsequent are not favored in law, and are construed strictly," is elementary, and does not require the citation of authorities.

A condition subsequent that will defeat an estate created by a deed must be fairly expressed in the deed itself. words used must create the condition.

The

The court will not

supply it, if the parties fail to express it. The rule is stated in 2 Dev. Deeds, as follows: "Section 976. Parol Condition. Aside from the question of a reformation of a deed in cases where clauses have been omitted by mistake, it is certain that in an action to recover property conveyed by deed on the ground that a condition on which it was made has not been performed, the deed must speak for itself, and a condition can not be engrafted upon a deed absolute in form 'by parol evidence. The engrafting of a contemporaneous condition on a deed will in a proper action be allowed only on clear evidence of fraud, accident, or mistake."

A condition may be created by any words which show clear, unmistakable, intention on the part of a grantor to create an estate on condition, regard being had to the whole of the deed in which they occur. The word "condition" need not be used, but words importing a condition must be used, or plainly inferred from the instrument and the existing facts. Tiedeman Real Property, section 272; Larabee v. Carleton, 53 Maine, 211; Rawson v. Inhabitants, etc., 7 Allen, 125; Packard v. Ames, 16 Gray, 327; Episcopal, etc., v. Appleton, 117 Mass. 326; Paschall v. Passmore, 15 Penn. St. 295; Wier v. Simmons, 55 Wis. 637; Raley v. County of Umatilla, 15 Ore. 172; 2 Wash. Real Prop. (5th ed.) 2.

It appears from the finding, supra, that in the year 1816, the General Assembly passed an act fixing the seat of justice

Sumner et al. v. Darnell.

for Wayne county permanently at Centreville from and after the 1st day of August, 1817; and that pursuant to the act, on that day, it was removed to Centreville; that afterward, on the 18th day of May, 1819, the lands in controversy were conveyed, by a general warranty deed, to the commissioners "for and in consideration of the seat of justice having been permanently established in the town of Centerville, within and for said county * * * for the use of said county of Wayne."

No other words from which any condition, limitation or right of re-entry by the grantor or his heirs are expressed in the conveyance, or in the subsequent entry made by the board of commissioners accepting the deed.

The cases cited by appellants' attorneys, and principally relied upon to show that this deed was conditioned on the seat of justice remaining at Centreville, will be examined in their order. The first one is Stanley v. Colt, 5 Wall. 119 (163). This was an action to recover for breach of condition a tract of land devised by the plaintiff's ancestor to an ecclesiastical society in which the property was devised to the society "to be and remain to the use and benefit of said Second or South Society and their successors forever.' Then comes the condition or limitation upon the devise: Provided, That said real estate be not ever hereafter sold or disposed of, but the same be leased or let,'

The court held that there was not a condition subsequent, using these words: "Our conclusion is, that the construction urged by the plaintiffs, of the will, importing a condition, a breach of which forfeits the devise, is not well founded."

The next case cited is Hunt v. Beeson, supra. In this case a lot was donated by the proprietor of a town for a "tan-yard," and was used as such from 1834 to 1858. The court held that it was donated upon a condition subsequent, the condition evidently being the erection of a tan-yard on the lot, and not the perpetual maintenance of the same, for

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Sumner et al. v. Darnell.

the court held that the condition was fully performed, and that the property did not revert upon its subsequent sale and appropriation to other purposes.

The case of Indianapolis, etc., R. W. Co. v. Hood, 66 Ind. 580, was a conveyance of some lots to the "for a company site for the depot of said railroad at Peru, *** to have and to hold the premises*** for the purposes aforesaid." The statement of the use and condition was much stronger than is contained in the deed under consideration, and it does not support the position of the appellants. We do not feel called upon to extend the rule in favor of conditions subsequent beyond that indicated in this case.

The case of Scott v. Stipe, 12 Ind. 74, is not well reported, but as explained in Scantlin v. Garvin, 46 Ind. 275, does not sustain the appellants' contention, for it is said that the grant was upon condition that a church should be erected on the lot, and that it should "forever thereafter be used as a house of worship." Also, see Cook v. Leggett, 88 Ind.

211.

The case of Warren v. Mayor, etc., 22 Iowa, 351, was a suit by the grantor who dedicated land for a "public square," to enjoin the city from leasing or selling the same. The case is not in point.

In Henderson v. Hunter, 59 Pa. St. 335, the condition expressed in the grant to a church was "so long as they use it for that purpose, and no longer, and then to return back to the original owner."

We are unable to find that any of the cases cited by appellants sustains their theory of this case.

In Heaston v. Board, etc., 20 Ind. 398, the conveyance was to "the board of trustees of the County Seminary of Randolph county, and their successors in office forever, to have and to hold the premises aforesaid, with all the appurtenances, to the only proper use, benefit and behoof of said board of trustees for the use of said seminary forever."" It was claimed that this created a condition subsequent, and

Sumner et al. v. Darnell.

that the premises having ceased to be used as a seminary, the grantor was to recover the land. The court held that the corporation received an unconditional title, which was not defeated by the alleged failure to use the premises for the purposes of a seminary, or by using it for other purposes; that there was nothing in the deed that imported a condition, and that if the grantor intended that the property conveyed should only be used for a seminary edifice, or, in case it should be used otherwise, that the estate should be forfeited. and revert, the condition should have been expressed or fairly implied.

In Seebold v. Shitler, 34 Pa. St. 133, land upon which a court-house and jail had been erected was conveyed to the commissioners by name, and their successors in office, "in trust for the use of the said county, in fee simple." The county was subsequently divided, the seat of justice removed, and trustees appointed to sell the lots. Held, that there was no reverter.

In Adams v. County, etc., 11 Ill. 336, a land owner proposed that if the county-seat should be located at Pottsville he would give land for a court-house and other county purposes. The proposition was accepted, and the General Assembly passed "an act to locate permanently the seat of justice of Logan county," and it was located at Postville. Subsequently the county-seat was removed. It was held that the grantor was without remedy. The suit was to recover the money rather than land, but it was held that the deed was unconditional.

In Harris v. Shaw, 13 Ill. 456, land was conveyed to commissioners, by name, and their successors in office, for the use of a county forever, in consideration of one dollar, and that the county-seat had been located on the premises. The county-seat was afterwards removed, and the grantor sued to recover the land. It was held that there was no condition and that he could not recover.

The citation of authorities to this effect might be greatly