
    The Village of Ashland v. Greiner et al.
    
      Grant of land for religious purposes — Grantees convey strip to village for street — Rights of heirs of grantor against grantees.
    
    1. A deed of conveyance for one-half acre of land having been made and delivered by a grantor to two grantees upon consideration of twenty dollars, as follows :
    u To have and to hold the above granted and bargained premises with the appurtenances thereof unto them, the said grantees or their successors in office, forever, to their own proper use and behoof, but it is expressly to be understood that the said grantees nor their successors in office, shall not at any time use or occupy the aforesaid premises for any other purpose or purposes than whereon to erect or build religious meeting houses or parsonages, and for cemetery or burying ground, and that the said cemetery or -burying ground shall be free and common to and for all religious denominations who may desire to occupy the same for the purpose of interring their dead, under the immediate direction and regulations of the said grantees or their successors in office, but this reservation shall not extend to inhibit or prevent the fencing, planting trees or shrubs, making tombs, monuments or other ornamental improvements, ’ ’ and a street having been located by the village upon a strip of said land thirty feet wide, for which the successors of said grantees received five hundred dollars, and an action having been brought by the heirs of the grantor against the village for the recovery of the value of said strip of land : Held,— That said heirs had no title to said strip of land, and no right to the value thereof.
    2. That as said deed had no words of forfeiture or re-entry, the diverting of said lands to uses and purposes, other than those expressed in the deed, did not in legal effect revest title to said lands in the grantor, or his heirs.
    (Decided March 1, 1898.)
    Error to the Circuit Court of Ashland county.
    On the 11th day of September, 1838, a conveyance was made by deed, the material part of which, so far as this case is concerned, is as follows:
    
      “To all persons to whom these presents shall come, greeting: Know ye that we, Martin Greiner and Elizabeth Greiner, of the county of Richland in the state of Ohio, for the consideration of twenty dollars, received to our- full satisfaction of Christopher Mykrantz and John Keller, of the county aforesaid, trustees of the German Lutheran, Presbyterian and Reformed Congregation of Montgomery and its vicinity, do give, grant, bargain, sell, convey and confirm unto the said Christopher Mykrantz and John Keller, or their successors in office, the following described tract * * * containing one-half acre of land. To have and to hold the above granted and bargained premises with the appurtenances thereof unto them, the said Christopher Mykrantz and John Keller, or their successors in office, forever, to their own proper use and behoof, but it is expressly to be understood that the said Christopher Mykrantz and John Keller, nor their successors in office, shall not at any time use or occupy the aforesaid premises for any other purpose or purposes than whereon to erect or build religious meeting houses or parsonages, and for cemetery or burying ground, and that the said cemetery or burying ground shall be free and common to and for all religious denominations who may desire to occupy the same for the purpose of interring their dead, under the immediate direction and regulations of the said Christopher Mykrantz and John Keller, or their successors in office, but this reservation shall not extend to inhibit or prevent the fencing, planting1 trees or shrubs, making tombs, monuments or other ornamental improvements.”
    
      The acknowledgment shows that the wife signed the deed “for the purposes therein specified.”
    The land was used as a cemetery, until the year 1857, when the council of the village prohibited interments, and thereafter it was used as a parsonage for the Lutheran Church.
    In the year 1875, the then trustees of the Lutheran Church made a quitclaim deed to the village of Ashland for a strip of land about thirty feet wide along the south side of said half acre for the sum of $500.00, and the village accepted the deed, and opened a street on and along said strip, and agreed that the parsonage should be exempt from assessment for the first improvement and sidewalk of the street. A proceeding in appropriation had previously been had, but the value of the land assessed by the jury was not paid by the village.
    The grantors in the deed of 1838, having died, their heirs on the 24th day of June, 1895, commenced an action in the court of common pleas to recover from the village the value of said strip of land so devoted to street purposes, and offered in their petition to convey said street to the village upon being paid its value, $750.00.
    A demurrer was filed to this petition, and the same having been overruled, an answer was filed admitting the incorporation of the village, the deed of 1838, the use, of the strip of land as a street, and denying all the other allegations of the petition.
    A jury was waived, and the ease was tried to the court, and judgment rendered for the village. A motion was made for a new trial, which was overruled and exceptions taken, and a bill of exceptions containing all the evidence, including the deed of 1838, and the quitclaim deed of 1875, was allowed and made part of the record.
    
      Upon petition in error, the circuit court reversed the judgment, upon the grounds that the court erred in overruling the motion for a new trial, and that the findings and judgment of the court were contrary to the law of the land, and against the evidence in the case.
    Thereupon the village filed its petition in error in this court, seeking to reverse the judgment of the circuit court, and asking for affirmance of the common pleas.
    
      W. T. Devor, for plaintiff in error.
    The deed to the village as appears from all the evidence was simply an agreement to give the strip of land for a street and specified the compensation to he paid by the village for the same. Now the village got possession of the land for the street either by the appropriation proceedings or the deed from the trustees, it matters not which. By an, etc. v. Hoffman, etc:, 26 Ohio St., 120.
    Inability to acquire the lands by purchase or voluntary grant has in many cases been held to be a jurisdictional fact which must be set out in the petition. Bowman v. Venice, etc., 102 111., 454; Booker v. Venice, etc., 101 111., 333; Chicago, etc., v. Sanford, 23 Mich., 418; Cunningham v. Pacific B. B. Co., 61 Mo., 33; Hannibal, etc., v. Under, 49 Mo., 165; In re N. T. Cent/ral B. B. Co., 67 Barb., (N. Y.)426; XT. S. v. Oregon B. efe Hav. Co., 16 Fed. Rep., 5241; section 6415, Revised Statutes of Ohio.
    It is true that the strip of land wa,s conveyed to the trustees for particular purposes “and for no other purpose or purposes. ” But the restrictions and limitations made by a grantor as to the use of property conveyed cannot interfere with public progress. Brown v. Corey, 43 Pa. St., 495.
    
      The private contracts of parties can not prevent municipalities from making improvements. The power of eminent domain is one of the principal powers of municipal corporations. 6 Yol. Am.'and Eng. Enc. of Law, 511.
    An owner of an equitable estate may make a valid dedication of land for a street. Cincinnati v. White, 6 Peters, (U. S.) 431; Williams v. Presby. Church, 1 Ohio St., 478; Pagan v. McCoy, 29 Mo., 356; Johnson v. Scott, 11 Mich., 232; Poe v. Attica, 7 Ind., 641; Wright v. Tinkey, 3 Cush., (Mass.) 290; Sargeant v. St. Bio., 4 McLean, (U. S.) 339.
    A trustee may dedicate land for a street. Pruden v. lindsley, 29 N. J. Eq., 615; Pitts v. Mayor, etc., of Baltimore, 73 Md., 326. 38 N. J. L., 47; 8 Ind., 378.
    A railroad company can dedicate land for a public highway. Williams v. IE Y. & N. II. E. E. Co., 39 Conn., 509.
    Dedication generally means to give without any direct consideration. 5 Am. and Eng. Enc. of Law, pag'e 395. An express common law, dedication of a street may be made in various ways. 24 Am. and Eng. Enc. of Law, page 5; Cincinnati v. Babb, 29 Bull., 284. This same case was affirmed by the Supreme Court without report as Babb v. Cincinnati, 36 Bull., 206; 4 Dec., 464.
    If the condition of the deed from Greiner to the church trustees is what is called a condition subsequent, operating upon an estate already created and vested and rendering it liable to be defeated, it is not favored in the law and it is to be construed strictly, because such conditions tend to destroy estates. Peden v. O., E. I. <& P. B. B. Co., 73 Iowa, 328; also 5 Am. St. Rep., 680.
    
      It is often a question whether clauses of this nature are conditions subsequent or covenants, and fine distinctions have been made by the courts in determining the matter. Watterson v. Ury, in 5 C. C., 347; 3 C. D., 171; 52 O. S., 637; Taylor v. Binford, 37 Ohio St., 262; Woodworth v. Payne, 74 N. Y., 196; Post v. Weil, 115 N. Y., 361; 12 Am. St. Rep., 809; Raley and Johns v. Muatilla Co., 3 Am. St. Rep., 142.
    Now we claim that under this deed from Martin Greiner the trustees of the church did not even violate the purposes of the grant by opening a street along the side of the one-half acre. The deed provides that “this reservation shall not extend to inhibit or prevent the fencing, planting trees or shrubs, making tombs, monuments, or other ornamental improvements. ’ ’
    Every deed is to be so construed as, if possible, to give effect to the intention of the parties. It is to be construed most strongly against the grantor. White v. Sayre, 2 Ohio,- 114; Wolf v. Scarborough et al., 2 Ohio St., 363; Potteo-• v. Burton, 15 Ohio, 196; Cincinnati v. Bfeioell, 7 Ohio St., 37; Witt v. St. Pcml, etc., Ry. Co., 38 Minn., 122 Miller v. Miller, 17 Or., 423; Jeromes. Ortman, 66 Mich., 668.
    In our answer we also plead the statute of limitation. The public have been in possession of this street since 1875, nearly 20 years, before this action was brought.
    The petition asks for damage and falls under section 4982, Revised Statutes of Ohio.
    
      Mrs. Sm-a K. Wertman, for defendants in error
    We do not agree with the attorney in error, that said proceedings were a dedication of said ground by the grantor, Martin Greiner. It does not meet the requirements of a dedication, but if so construed by the court, then we meet it with 18 Ohio St., 221.
    Neither can it be made to appear that the church trustees dedicated said strip of ground for a street as affirmed by attorney for plaintiff in error, for said attorney admits that the record shows that said trustees received $500.00, an exemption from tax for street improvements for said ground. Whereas a dedication requires to give without consideration.
    Note the deed used for said conveyance was a quitclaim deed, by which said trustees released all their interest in said 30 feet of ground. Now we maintain that whether the court construes the stipulation in the original deed from Martin Greiner to be a condition subsequent, or a covenant running with the land, in either case the same was broken by abandonment, or conveying said ground for other purposes than those expressed in the deed by the grantor, Martin Greiner.
    The intention of the grantor is clearly expressed in the deed, though not clothed in technical language. 2 Sheldon, page 80, top paragraph; 35 N. Y., 167; 53 N. Y., 85. '
    The cases in the books are numerous and uniform in holding that the use of property in some directions may be restricted by conditions and covenants. The right to do so results from the power of alienation and this power of alienation is incident to the right of property. Enc. of Law, Book 3, page 422.
    That the stipulations in the deed from Martin Greiner to said trustees are consistent with the general rules of law.
    
      1. They are not impossible or unlawful.
    2. They are not contrary to public policy.
    3. They are not in general restraint of alienation.
    By the terms of the deed the use of the premises is not limited exclusively to the grantees or any particular denomination of Christians, but is conveyed as ground upon which to erect or build religious meeting houses, parsonag’es or cemetery. Restricting the alienation to a class only, or a partial restraint of alienation. Vol. 13, page 795, Enc. of Law.
    4. They are not repugnant to the estate granted. Devlin on Deeds, section 840; 19 Pick., 250, 252; 115 N. Y., 371; Lessee of Sperry, 5 Ohio, 388.
    Hence we affirm that the trustees had no power by virtue of said deed to sell or dispose of said ground for any secular or irreligious purpose, and in selling the 30 feet of ground for street purposes, they forfeited their claim or title to said land, and that the title reverts to and is vested in the heirs of Martin Greiner. 19 Ohio St., 546; 22 Pick., 480; 15 Wend., 564.
    The buildings to be erected, meeting houses and parsonages, though extending to things to be newly made yet they are to be made upon the land conveyed, and the grantees and their successors are to have the benefit of the same, and therefore binds the grantees by express words. 55 Ohio St., 47; 42 Ohio St., 180; 17 Wend., 136; 2 N. Y., 394; Omst., 10 Pick., 310; 9 Ohio St., 340.
   Burket, J.

The deed of conveyance in question, j was for the consideration of twenty dollars, the I fair value of the half acre at the time of the making band delivery of the deed. The legal effect of a / deed, upon such consideration, is different from that of a deed where there is no consideration, other than the purposes for which the conveyance was made. In the one case the grantee acquires the estate for value paid therefor, and in the other it comes to him without price, and in both there may be a stipulation that the estate is to be used only for particular purposes.

When value is paid for the estate, such stipulation is construed to be a covenant running with the land, in the nature of a trust, for the uses and purposes expressed in the deed of conveyance, and in case of a breach of the trust, a court of equity will in a proper action, decree the performance of the trust by confining the uses of the estate to the uses and purposes expressed in the deed. In such cases the restricted use of the estate becomes a part of the consideration, and is consented to by the grantee, and it is no hardship on him and his assigns, to be compelled to observe the covenants contained in the deed. But in such cases a breach of the covenant restricting the uses and purposes to which the estate is to. be devoted, does not have the legal effect to forfeit the estate and reinvest the title in the grantor, his heirs or assigns. To have such legal effect, there must be words of forfeiture or re-entry in the deed. Watterson v. Ury, 5 C. C. R., 347; 3 C. D., 171, and cases cited. That case was affirmed by this court, 52 O. S., 637, Washburn on Real Property, Vol. 2, of 5th Ed., page 5.

Whether a stipulation in a deed of gift, or in a will, restricting the uses to which the estate is to be devoted, is only a covenant, or, is a condition subsequent, is not involved in this case, and is not here decided.

It is clear that the deed in question conveyed away all the title to the premises which the grantors had, and that the grantees received all such title, (which was the fee) for the uses and purposes expressed in the deed; and as there are no words of forfeiture or re-entry i>n the deed, no title whatever vested in the heirs of the grantor, upon breach of the covenant as to the uses and purposes to which the estate was to be devoted.

/' The plaintiffs below therefore had no title to the I strip of land upon which the street was located, I and could maintain no action for its recovery, nor I for the recovery of the value thereof. The consideration paid by the village for the strip of land upon which the street is located, belongs to the owners of the half acre of land conveyed by the deed in question, and this is so whether the village acquired the strip of land by purchase, or by proceedings in appropriation under the statute. Cincinnati v. Babb, 29 W. L. B., 284; 36 W. L. B., 206; 4 Dec., 464.

The plaintiff below having no title to the strip of land in question, and no right to the value thereof, cannot maintain the action, and the demurrer to the petition should have been sustained; but as that was not done, a judgment should have been rendered in favor of the village upon the pleadings. That not having been done, the common pleas on the trial very properly rendered judgment in favor of the village, and the circuit court erred in reversing that judgment.

The deed of 1838 was admitted by both parties, and there was no effort in the pleadings or testimony to set aside or reform it for fraud or mistake. On the contrary,, it was conceded by both parties to be in full force, and both claimed title under it. It was also conceded by all, that the village was, and had been for a long time, in possession of the strip of land using it as a public street, and had paid therefor the sum of five hundred dollars. These facts are controlling, and being conceded in the pleadings, the court of common pleas should have refused to hear any testimony. The testimony which it did hear was immaterial, and did not tend to disprove the conceded facts. The circuit court erred in applying the law to those conceded facts, and in its construction of the deed.

Its judgment must therefore be reversed and that of the common pleas affirmed. Minnear v. Holloway, 56 Ohio St., 148.

Judgment reversed.  