Opinion
05-09-1934
BROPHY v. BOARD OF EDUCATION OF BOROUGH OF WEST PATERSON.
Edward F. Merrey, of Paterson, for complainant. Samuel S. Black, of Paterson, for defendant.
Complaint by Mary Brophy against the Board of Education of the Borough of West Paterson, involving the rights of the parties under a certain deed.
Decree in accordance with opinion.
The provisions of the deed follow: The deed, which was a deed of warranty, conveyed for the express consideration of $1 certain land to the "Trustees of Union District SchoolNo. 9 of the Township of Acquackanonk." The granting clause was to such trustees "and to their successors and assigns forever," and the habendum "to such parties of the second part, their successors and assigns forever," and so with the covenant of warranty. The description of the land was followed by the phrases: "Which said premises are hereby conveyed to and for the purpose of having erected thereon a district school house," and (immediately following the conclusion of the covenant of warranty) "to and for the use of having erected thereon and maintained for the use of said district, a school house and for playground for the scholars of said district and for no other purpose whatsoever."
Edward F. Merrey, of Paterson, for complainant.
Samuel S. Black, of Paterson, for defendant.
LEWIS, Vice Chancellor.
The rights of the parties are before this court for the second time. The deed on which the rights depend came before this court on a bill to quiet title, the decision in which is reported in 90 N. J. Eq. 57, 106 A. 32, 35. At that time the premises in question were not in use at all. Since that time the board of education has put the building to use in part at least for other than school purposes.
In the prior case I stated: "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. * * * If the issue were before me, I would be inclined to hold that the grantee took an unconditional fee." This question was not decided by me at that time because of the circumstances of the prior suit, but is now squarely before the court.
I see no reason to change my former view that the condition of the deed does not constitute a conditional limitation nor impose a condition subsequent. In the present suit it is now contended by the complainant, in addition to the claim of breach of condition, that the deed constituted a gift to a charitable use. I do not find that the language used is such as to create such a charitable use. The language used in the deed does not seem to be capable of such a construction.
I accordingly find that the deed conveyed an absolute fee, and therefore the complainant has no rights in the premises.