BACKES, V. C. This is a creditors' bill. balance of some $50 or $60 in favor of BowThe facts are few and undisputed. Cather-ers he paid that. Mr. Clymer, a reputable ine Bowers, the complainant, held the defendant's Annie Bowers' duebill for $500, upon which she sued and recovered in the Supreme Court. Under execution the undivided one-third interest of Annie in lands in Somerset county was sold and conveyed to Catherine. While the suit was pending Annie and her husband executed their bond and mortgage on Annie's interest in the land to Allen W. Rose for $3,500 to satisfy a debt of Annie's husband. Rose assigned the bond and mortgage to William Prout, and Prout assigned them to the Newark Trust Company as collateral security for his debt. Catherine filed this bill to set aside the mortgage as fraudulent, and the trust company counterclaimed, praying a foreclosure and

and no other purpose whatever, did not grant an | therein from the year 1859 to the end of estate on conditional limitation, but, if anything June, 1913. of a conditional nature, an estate on condition subsequent, so that mere cessation, perhaps temporary, of use of the land for school purposes by

the successors of the trustees did not work a forfeiture of the estate.

4. DEEDS 155-CONDITION SUBSEQUENT

FORFEITURE-STRICT CONSTRUCTION.

Conditions subsequent are always construed strictly, and will never work a forfeiture unless clearly expressed in unequivocal terms or necessarily implied.

5. DEDICATION 8-PUBLIC USE-SCHOOL PURPOSES.

In 1868, by legislative action, a part of the township of Acquackanonk, embracing the land in question, became the township of Little Falls. By operation of law, the school district, or the board of education thereof, of the new township, acquired title to the schoolhouse tract.

In 1914, the Legislature incorporated the borough of West Paterson out of that part of the township of Little Falls in which lay the premises in question. Complainant thereupon took, by operation of law, the title of

Lands may be dedicated to public use for the school district (or board of education school purposes.

6. SCHOOLS AND SCHOOL DISTRICTS 65SCHOOL PROPERTY-PRECATORY WOrds.

Deed to trustees of district school of township, and their successors and assigns forever, to have erected on premises and maintain for use of district a schoolhouse, etc., and for no other purpose whatever, held to have granted a fee simple without conditional limitation; statement as to use of premises being merely precatory.

Bill by the Board of Education of the Borough of West Paterson, in the County of Passaic and State of New Jersey, against Thomas Brophy and wife. Bill dismissed, or directed to be modified so as to embrace a single issue, so that a decree sustaining it will go no further.

thereof) of Little Falls township to the school, house tract.

No school sessions have been held in the schoolhouse since June, 1913; but the school property is in the charge of a committee, constituted of members of the complainant board, and the key to the door is in the custody of a janitor in the employ of the complainant. Complainant is in peaceable possession of the property, and was in such possession at the time of the filing of this bill.

The defendant Thomas Brophy disputes complainant's title, and claims to own the schoolhouse tract. In a notice of such claim dated April 30, 1914, and served upon the board of education of Little Falls township about that time, he claimed as "one of the heirs at law of William Brophy, deceased" (the original grantor); and in his answer to and claims also as devisee under the will of

Jacob Veenstra, Jr., of Paterson, for com- complainant's bill he reasserts that claim, plainant.

Michael J. Murphy, of Paterson, for de- the wife of said William Brophy. fendants.

When complainant's bill was filed no suit was pending to enforce or test the validity LEWIS, V. C. By a deed dated December of the defendant's claim. That claim is built 24, 1858, William Brophy and Mary, his wife, up upon the cessation of use of the school conveyed by deed of warranty, for the ex- premises for school purposes. The central press consideration of $1, certain lands to question, therefore, is one of construction of the "Trustees of Union District School No. 9 the original deed and, in particular, of the of the Township of Acquackanonk.” The clauses thereof, herein before quoted, that folgranting clause is to such trustees "and to low the description and the covenant of wartheir successors and assigns forever," and ranty. The construction is to be made, of the habendum "to said parties of the second course, in connection with the fact of disconpart, their successors and assigns forever," tinuance of school sessions on the schooland so with the covenant of warranty. house tract.

The present controversy has arisen because The evidence shows that at the end of the of the following phrases in the deed (after school year of 1913 the board of education of the description of the land): "Which said the township of Little Falls ordered that a premises are hereby conveyed to and for the carpenter be employed to close up and fasten purpose of having erected thereon a district the windows of the schoolhouse, which was schoolhouse," and (immediately following the accordingly done, and since that date the conclusion of the covenant of warranty) "to building has remained in the same condition and for the use of having erected thereon that it then was, excepting the deterioration and maintained for the use of said district, caused by time and weather. No money has a schoolhouse and for playground for the been expended for repairing, painting, or scholars of said district and for no other pur-cleaning it since June, 1913. The door and pose whatsoever."

A schoolhouse was built upon the land, and regular daily school sessions were held

windows have remained closed and fastened
ever since, except on rare occasions when the
janitor of a new school built in the neighbor-

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
106 A.-3

hood entered the building, according to his statement. This witness testifies that he never did any work in or about the building or grounds, or opened the windows.

The evidence further shows that the board of education of the township of Little Falls had caused to be erected a new and commodious schoolhouse within about 1,500 yards of the locus in quo, and that the children who were wont to attend the old school before it was closed in 1913 have since then attended the new school.

the phrases concerning which a construction is sought by the bill are a mere statement of what the grantee intended to use the land for.

[1] An estate upon condition is granted on the limitation or condition that the grantee do certain things or refrain from doing certain specified things, and should the grantee violate the prescribed conditions, the grantor may re-enter and take possession.

[2] On the other hand, an estate upon conditional limitation is one where the whole estate is given to the grantee absolutely, but upon the happening of a specified event it is to terminate absolutely, and no re-entry is necessary. The happening of the event terminates the estate, and the fee goes immediately to some one else.

For example, if an estate be granted to a man as long as he holds the position of a Vice Chancellor of the state of New Jersey, and no longer, that would be a conditional limitation, and the estate would terminate when the grantee ceased to hold that position, and re-entry or its equivalent would not be necessary.

There was testimony also to show that the new school is ample for the children living in that part of the borough, and is likely to remain ample for that purpose for a considerable period of time in the future. It was also testified that some of the desks in the old school were removed by the board of education of the borough of West Paterson to another school in the borough for use there. The defendant contends there was in fact and in law an abandonment of the schoolhouse for the use of a school; (2) that such abandonment operated as a reverter of the title to the defendant; (3) that complainant [3] In the instant case it is therefore quite never acquired title to the premises, relying clear that the phrases used in the deed in on the following cases: Jersey City v. Mor-question do not import a conditional limitaris Canal Co., 12 N. J. Eq. 547; 9 Am. & Eng. Enc. Law, p. 55, note 1, and cases cited thereunder; Kent's Commentaries, vol. 4, § 132; Gage v. School District No. 7, 64 N. H. 232, 9 Atl. 387; 9 Am. & Eng. Enc. Law (2d Ed.) p. 73; Methodist Episcopal Church v. Penn. R. R. Co., 48 N. J. Eq. 452, 22 Atl. 183; Reutler v. Ramsin, 102 Atl. 357; Oxford Board of Trade v. Oxford Iron & Steel Co., 81 N. J. Law, 694, 80 Atl. 324; Freeholders of the County of Cumberland v. Buck, 79 N. J. Eq. 472, 82 Atl. 418; Murno v. Syracuse R. Co., 200 N. Y. 224; State v. Brown, 27 N. J. Law, 13; Newark v. Watson, 56 N. J. Law, 667, 29 Atl. 487, 24 L. R. A. 843.

tion.

In the case of a condition subsequent, "where an estate in fee is created on condition, the entire interest does not pass out of the grantor by the same instrument or conveyance. All that remains after the gift or grant takes effect continues in the grantor, and goes to his heirs. This is the right of entry * # which, from the nature of the grant, is reserved to the grantor and his heirs only, and which gives them the right to enter as of their old estate, upon the breach of the condition." Proprietors of the Church in Brattle Square v. Grant et al., 3 Gray (Mass. 1855) 142, 63 Am. Dec. 725.

[4] Conditions subsequent are always construed strictly, and will never work a forfeiture unless they are clearly expressed in unequivocal terms or necessarily implied. Southwick v. New York Christian Missionary Society, 151 App. Div. 116, 135 N. Y. Supp. 392.

This suit was brought under the provisions of "An act to compel the determination of claims to real estate in certain cases and to quiet the title to same," Pamphlet Laws 1870, p. 20 (Compiled Stat. of N. J., vol. 4, p. 5399), "that when any person is in peaceable possession of lands in this state, claiming to own the same and his title thereto or to any part thereof is denied or disputed, or any other person claims or is claimed to own the same or any part thereof, or any interest therein, or to hold any lien or incumbrance thereon, and no suit shall be pending to enforce or test the validity of such title, claim or incumbrance, it shall be lawful for such person so in possession to bring and maintain "Conditions subsequent, especially when rea suit in chancery to settle the title of said lied upon to work a forfeiture, must be creatlands, and to clear up all doubts and dis-ed by express terms or clear implication, and putes concerning the same."

The first question to be decided then is whether there is a conditional limitation, a condition subsequent, a covenant, or whether

"It is no less the dictate of reason and justice than of sound law that courts should require the violation of a condition which involves a forfeiture to be clearly established. Conditions, when they tend to defeat estates, are stricti juris and to be construed strictly." 1 Shep. Touch. 133, § 8; Roll. Rep., 70.

are strictly construed. Washb, on Real Prop. 447; 4 Kent's Com. 430; Southard v. Central R. R. Co., 2 Dutch. 13, 20. If it be doubtful whether a clause in a deed be a

covenant or a condition, the courts will in- [purposes. Circumstances might arise at any cline against the latter construction. 4 time which would induce the present board Kent's Com. 132. And words in a deed, not of education to utilize the building and in form either a covenant or a condition, will grounds actively for school purposes; or a be construed as a covenant rather than a succeeding board, with different policies, and condition." Woodruff v. Woodruff, 44 N. J. perhaps under changed conditions, might put Eq. 353, 16 Atl. 6, 1 L. R. A. 380. it in active operation. It might be utilized for a manual training shop, or a kindergarten, or a special school for defective pupils, or a domestic science school and kitchen, or under the application of the cy pres doctrine for a school library or a community center, or a public playground, any one of which might reasonably, perhaps, be construed to be a school purpose in the light of present The tendencies. Libraries, community centers,

In the case of St. Stephen's Church v. Church of the Transfiguration, 130 App. Div. 166, 114 N. Y. Supp. 623, the plaintiff bought from the defendant land by deed containing a covenant not to use the land for any but church purposes. The covenant had not caused the land to be sold at a lower price, and was of no value to the defendant, who was using it as a means of extortion.

I am therefore of the opinion that, so far as the present suit is concerned, the defendants have failed to show that there has been a forfeiture through nonuser, even though I should hold the estate of the school district to be subject to a condition subsequent, which I am not called upon now to decide, and to that extent complainant's title should be quieted.

[6] I am inclined to the view that the original grant to the school district is a grant in fee simple without condition or limitation; the grantor merely expressing the purpose which it was his desire or wish that the property should be used for.

court held the covenant was unenforceable, and public playgrounds are almost always and that the defendant must release it. In conducted in conjunction with educational the instant case the consideration was only exercises. $1, so that it is hardly a parallel case. [5] Lands may be dedicated to public use for school purposes. McQuillin, Municipal Corp. vol. 6, §§ 1543, 3209. In this suit the question of the present right of the school district to sell this land or to put it to some other use than a school purpose is not in issue by the defendants' claim of title. All that the claim of the defendants puts in issue is that there has been a forfeiture through nonuser. There is nothing to show that the school district contemplates a sale of the land or to put it to some other use than school purposes. If, therefore, this bill to quiet title is sustained without qualification, the adjudication would be to com- It is to be observed that in the present pletely dispose of the claim of the defend-grant no forfeiture is prescribed, and both ants, and would be an adjudication that the the grant and the habendum are uncondi defendants had no rights in the property. tional. This would leave the school district free thereafter to do with it as it pleased without an adjudication having been made of its ulti-conditional fee, and that the school district mate right to regard its estate as an absolute fee without restrictions or conditions. Whatever, therefore, may be the basic rights involved between the parties to this suit, it would seem that to sustain the bill to quiet title would confer greater rights upon the school district than either of the parties may have contemplated, namely, the setting at rest of the question of an absolute fee in the school district, which is not in issue in this

suit.

All that the defendant claims here is that through nonuser there has been a forfeiture. While the evidence shows that the school building is not at present being actually used for school sessions, there is no evidence to establish the fact that the school district has actually abandoned the property for school

If the issue were before me, I would be inclined to hold that the grantee took an un

could dispose of the land and building as it saw fit, but, as I conceive the present suit, I am not called upon to go that far. It is sufficient to say that under the evidence there is nothing to warrant the court in finding that the complainant's title is jeopardized or injuriously affected by the defendants' claim; and, in view of the fact, as above indicated, that to sustain the bill in its entirety would be to adjudicate the question which I have now shown is not before me for adjudi. cation, I am of the opinion that the bill should either be dismissed, or that it should be so modified as to embrace simply the issue of the forfeiture by nonuser, so that a decree sustaining it would go no further in adjudicating the rights of the parties.