Opinion
No. 27285.
October 1, 1928. Suggestion of Error Overruled October 15, 1928.
1. FIXTURES. Ordinarily building erected on land of another, without agreement to contrary, becomes part of realty.
Ordinarily a building erected by one on land of another, without any agreement, express or implied, to the contrary, becomes part of realty.
2. FIXTURE. School district, to recover building on land conveyed for school purposes, must prove building was on land at time of conveyance, and was not to become part of realty ( Hemingway's Code 1927, section 8746).
Consolidated school district, in order to recover building owned by former public school in accordance with Laws 1924, chapter 283, section 111 (Hemingway's Code 1927, section 8746), must allege and prove that building was on land at time of execution of instrument conveying land in district for school purposes, and that it had been erected by patrons with landowner's consent, either expressed or implied, that it should not become part of realty.
3. FIXTURES. That school building was erected to effectuate purpose for which land was conveyed does not prevent it from becoming part of realty.
The fact that school building erected on land conveyed for school purposes was erected to effectuate the purpose for which land was conveyed to school district is ineffectual to prevent it from becoming a part of the realty, and thereby subject to possibility of reverter in accordance with instrument conveying land.
4. SCHOOLS AND SCHOOL DISTRICTS. School building is subject to reversionary clause in deed conveying land for school purposes.
School building is subject to reversionary clause in deed conveying land for school purposes, notwithstanding it was erected and devoted to a public use, since conditions subsequent in a deed apply with equal force to public as to private individuals.
APPEAL from chancery court of Lawrence county; HON. T.P. DALE, Chancellor.
Fred M. Bush, for appellant.
The question here presented is: Has the appellant under section 8746, Hemingway's Code 1927, a superior title to the building in controversy to that of the appellee who claims only under the reverter clause of the deed of 1908 to Hooker school as a remote grantee of B.W. Johnson? The appellant does not contend for the land conveyed in said deed but only for the building thereon situated.
I wish to call the court's attention to the fact that the deed shows upon its face that the building in controversy was situated on the land at the time of the conveyance, for it plainly says that the center of the main building is taken as the point of beginning in the description of the land. That being true, it is our contention that since there is no other deed in evidence except the deed of 1908, it is evident that the building was placed thereon presumably under a parol license prior to November 2, 1908, and that it never became a fixture but remained the property, the personal property, of the Hooker graded school and therefore passed to the appellant upon the consolidation of the New Hebron consolidated school district. 11 R.C.L. 1983, par. 26; 14 L.R.A. (N.S.) 439; Agnes v. Jones, 74 Miss. 347; 26 C.J., sec. 2, p. 656 and 668, sec. A, 14 L.R.A. (N.S.), 441 442; Buck v. Mason, 37 So. 460; Parker v. Macedonia, 111 So. 109; Decel v. McRae, 35 So. 940; Galgreath v. Thayer, 113 So. 87; Agnew et al. v. Jones, 23 So. 25.
It is clear that the deed of November 2, 1908, was nothing more nor less than an effort on the part of Johnson and the trustees to reduce the former parol agreement which presumably existed at the time of the deed to writing and in doing so they gave to each under the deed precisely what the law would have given to each under a parol agreement or license. See I.C.R.R. Co. v. Hoskins, 80 Miss. 730, 32 So. 150; Richardson v. Borden, 42 Miss. 71.
My second proposition is that at the time of the deed of November 2, 1908, the trustees, or rather the people of the Hooker graded school owned the building, and if the view of the lower court be correct, it means that the trustees of that district disposed of the building, which had then been constructed, without the consent of those people, and that they had manifestly no authority to do.
My third proposition is that B.W. Johnson was both grantor and one of the grantees in that deed. He manifestly knew the points of view of all parties to that deed, and with that knowledge and with all the background that surrounded him as trustee, in conveying the land he uses on every occasion in the said deed the naked word "land," and that too in the face of the conclusive fact that the building was then and there on the said land.
The learned court below erroneously held that the word land as used in this deed carried with it the property claimed by the appellant. L.N. Dantzler Lbr. Co. v. State, 98 Miss. 209, 53 So. 1.
It is entirely apparent that the grantor used the word land in that deed in the restricted sense as is used in "Common Parlance" for he knew both as grantor and as one of the grantees that the building was on the land at the time, that it belonged to the people of that school district, and it, therefore, seems inescapable that he was using the word "land" so as to protect himself as grantor and also the public, or the trustees in the event that the building should ever be removed, or the school discontinued. It seems to me that we are entitled to a reversal on the construction of the deed alone irrespective and independent of any other proposition involved in this case. Y. M.V.R.R. Co. v. Lakeview Traction Co., 100 Miss. 281, 56 So. 393.
G. Wood Magee, for appellee.
The appellee in this case who is the remote vendee of B.W. Johnson acquired all the rights which Johnson had or would have were he still the owner of the lands. Y M.V. Co. v. Traction Co., 100 Miss. 281.
Provisions of reverter inserted in a deed, as the one under review, are for the benefit of the grantor or vendor and not for the benefit of vendee. Kent et al. v. Stevenson et al., 127 Miss. 529.
The school house in question is a fixture, a part of the land, and cannot be removed without the consent of the landowner. McLeod v. Clark, 110 Miss. 861, 11 R.C.L. 1085. The most recent decision of this court upon the identical question involved in the case at bar is, Lee v. Dunnaway, 114 So. 353.
The facts in that case are almost identical, in effect, with the facts in the case at bar; and all the authorities cited above sustain the learned special chancellor in his holding, and this court should affirm the case.
C.E. Gibson, for appellee.
Appellant concedes that the land reverted back to Sutton under the terms of the deed, but contends that the Hooker school building is not a fixture and is not a part of the realty. This position is not supported by the law. It is the universal rule that whatever is affixed to land becomes a part of the land.
The building erected on the land being a fixture and part of the land cannot, without the consent of the owner, be moved off. McLeod v. Clark, 110 Miss. 861, 71 So. 11.
But complainant contends that inasmuch as the building in question was used for school purposes — public property, it does not revert with the land, even though it is a fixture to the land. This position cannot stand in the light of the opinion of this court in Lee v. Dunnaway, 114 So. 353, the most recent case upon this point.
This is an appeal from a decree dismissing an original bill filed by the appellant against the appellee, praying for the cancellation of appellee's claim to a building on his land, and that he be restrained from interfering with the appellant's taking down and removing the building. The case was heard on bill, answer, and proof, from which it appears that in 1908 B.W. Johnson conveyed to the trustees of the Hooker school district a small plat of land, the consideration therefor being one dollar and the further consideration that the land hereinafter shall be used for a public school, with the distinct understanding and agreement, when it ceases to be used for the purpose of a public school, to be maintained annually, then said land is to revert without further notice to the grantor herein.
A building was erected on this land, and a public school maintained thereon, until 1927, when the New Hebron consolidated school district, which embraces the territory included in the Hooker school district, was formed. A schoolhouse for the new district was erected on land other than that conveyed to the Hooker school district by Johnson, which land, and the building thereon, are no longer used for school purposes. After conveying the land to the Hooker school district, Johnson conveyed it, and other lands, to another, from whom it came to the appellee by mesne conveyances. The land, as we understand the record, is now in Sutton's possession, and his right thereto is admitted by the appellant.
Section 111, chapter 283, Laws 1924 (Hemingway's 1927 Code, section 8746), provides that:
"In any consolidated school district in which property owned by a former public school or schools is situated this property shall become the property of the consolidated school district."
In December, 1927, the president of the board of supervisors of the county in which the Hooker school district is situated, pursuant to an order of the board of supervisors thereof, executed a deed to the building to the trustees of the New Hebron consolidated school district. It is not clear from the evidence whether the building was on the land when it was conveyed by Johnson to the Hooker school district, and we will assume, as counsel for the appellant contends, that it was then on the land, and had been constructed by the patrons of the school, with Johnson's consent, for school purposes.
The appellant's contention is that the clause in Johnson's deed which provides for the reversion of the land does not include the building erected thereon by the patrons of the school for school purposes. The appellant does not controvert the rule that a building erected on land ordinarily becomes a part thereof, and passes therewith. Its contention is that this building did not become a fixture within that rule for two reasons: First, it was erected by the patrons of the school before the land was conveyed by Johnson to the school district, was not then owned by Johnson, and therefore is not subject to the defeasance clause in the deed to the school district from him; second, it was erected by the patrons of the school for a particular purpose, to-wit, for use as a schoolhouse so long only as they should desire so to do. The bill alleges the erection of the building by patrons of the Hooker school district, but does not allege the date of or the circumstances under which it was erected, and no evidence was introduced by either party relative thereto. The land conveyed by Johnson is described as follows:
"Commencing at the center of the main building [the Hooker school building], measure one hundred five feet east for a starting point, thence north one hundred five feet, thence west," etc.
This description assumes that a school building was then on the land, but the evidence is entirely silent as to whether it was the one here in question.
Ordinarily a building erected by one on the land of another, without any agreement, express or implied, to the contrary, becomes a part of the realty. In order for the appellant to recover on the theory that the building was not a part of the realty when Johnson's deed to the Hooker school district was executed, it should have alleged and proved that the building was then on the land, and had been erected by the patrons of the school with Johnson's consent, either expressed or implied, that it should not become a part of the realty. This it made no attempt to do.
When the New Hebron school district accepted the deed to the land, it became the owner therein in fee, subject to a possibility of reverter in the donor in the event it should not "be used for the purpose of a public school." When the building was erected on this land it became a fixture, and the fact that it was erected to effectuate the purpose for which the land was conveyed to the school district is ineffectual to prevent it from becoming a part of the realty. 11 R.C.L. 1085; Mosca Town Co. v. Wellington, 39 Colo. 326, 89 P. 783, 121 Am. St. Rep. 175; Bay City Land Co. v. Craig, 72 Or. 31, 143 P. 911.
Another contention of the appellant, in which there is no merit, is that the school building, having been erected for, and devoted to, a public use, does not become a fixture, and therefore subject to the reversionary clause in the deed from Johnson to the school district. Conditions subsequent in a deed apply with equal force to the public as to private individuals.
Affirmed.