#### RUDOLPH et al, Appellants, v. BENNETT et al, Respondents.

(168 N. W. 753).

(File No. 4288.

Opinion filed Sept. 3, 1918.

Rehearing denied November 4, 1918).

1. Conveyancing — Conditional Deed of Pali- Grounds — Diversion of Use' After Holding Stated Pairs — Conditional Vesting of Title in City — Grantor’s Bight to Enjoin Agricultural Trustees.

In a suit by grantors of certain grounds to defendant county agricultural society for fair purposes, to enjoin them from diverting -the property from the uses specified in the deed, by selling it in lots; the deed, in the granting clause, containing recitals to the effect that the “covenants, restrictions a.nd limitations” therein “formed the base of the consideration of the grant, * * * and governed and controlled the vesting of the title to the land,” and then granted and conveyed the land “subject to said restrictions and limitations, except as hereinafter especially excepted, reserved, restricted, and limited, to the said party of the second part,” followed by a proviso that the deed “is made subject to the exceptions, reservations, restrictions, and limitations herein specified, to-wit” (1) that the grantee shall use the premises for ■ agricultural fair purposes or other ■legitimate amusements under grantees’ directions! only, “and shall further cause to ¡be held once in each year for twenty consecutive years” from date an agricultural fair thereon, and (2) that in event of failure of grantee to have such exhibit thereon for five consecutive years during said twenty year period, “then and in that event the title * * shall vest absolutely in the City of Canton * * and immediately upon the happen- , ' ing of the aforesaid event as fully and effectually * * as. if this grant had originally been made to the said city,” subject only to the restriction that said city “shall hold and use the said premises for a public park forever;” the fair having been held for five consecutive years as provided in the deed; grantors’ contention being that the limitations and restrictions limited use of the premises to the holding of fairs, etc., which use was to be perpetual; grantees contending that, having complied with said requirements of a ..five year series of -fairs, title was thereby relieved of all burdens imposed thereon by said conditions, and that they could use or dispose of the premises as seemed advantageous; held, that- neither of those contentions is correct, that defendants’ contention, requiring; the interpretation that the provisions in paragraphs 2 and 3 must be- considered and treated as -a single condition, to the effect that, by holding a fair once in five years, said condition was fully complied with, is untenable; that said paragraphs contain the conditions (1), *25to use the premises for the purpose of a fair, etc., without limitation of them, (2) that grantees shall cause to he held once each year for twenty consecutive years- such fair thereon; for failure to comply with which tw-o conditions no penalty 'is provided; the third condition being, that for failure to hold a fair thereon for five consecutive years during said period title should vest in the city, to he used as a public park forever.

2. Conveyancing — Conditional Grant for. Agricultural Pair Purposes —Use Thereunder, Whether Impressing an Enforcible Trust — • No Trust Beneficiary, or Reversionary Clause, 'Effect, re Enjoining Grantees.

The condition in said deed, that the premises must he used for holding fairs, etc., is.a legitimate use thereof, and such use, ¡being in part at least the consideration for the conveyance, might have impressed an enforcible trust upon the property; hut inasmuch as the deed contains no reversionary clause, and names no beneficiary of such trust, and grantors having reserved no right of any kind in the premises, therefore-, if grantees failed for five of such consecutive years to hold a fair thereon, title was to vest in the city, which -could have taken possession and control of property, while failure to hold such fairs would not have vested in grantors any interest therein not common to all property holders in the city; and grantors — appellants having no interest in the subject of the action, are not entitled to the relief sought.

3. Appeals — Review—Findings, Sufficiency — No Assignment of Error, Effect.

There 'being no proper assignment of error, finding below will not be reviewed as to sufficiency of evidence.

4. Conveyancing — Conditional Deed for Agricultural Fair Uses — Full Value Consideration, Effect Re Vesting of Absolute Title.

In said case, there being evidence upon which trial court properly found that the consideration received by grantors was the full value of the land, held, that, there being no right of reversion or re-entry in ease the property was put to uses other than those specified in the deed, grantors, -upon execution and delivery thereof, parted not only with their title but with all their interest in and control over it: Huron v. Wilcox 17 S. D. 625.

Gates, J., and McCoy, J., concurring in the result.

Appeal from -Circuit Court, 'Second Judicial Circuit Court, Lincoln 'County. Hon. Louis L. FeEEGER, Judge.

Action by O. A. Rudolph- andi E. Wendt, ¡against Millard1 Bennett and' others, as Trustees of the Lincoln ¡County Agricultural Society, a corporation. dissolved, to enjoin, defendants from cer*26tain uses of agricultural society lands. From a judgment for defendants, and from an order denying a new trial, plaintiffs appeal.

Affirmed.

*A.*2?. *Carlson,*for Appellants.

*Brown & Brown,*and *Kennedy & Kennedy,*for Respondents.

(1) To point one of the opinion, Respondents- cited:

Los Angeles University vs. Swarth, et al., 107 Fed. 798; Bardo» vs. 'O’Brien,, (Wlis.) 120. N. W. 827; Stone vs. Stone, (la.) 119 N. W. 712; Bu-rchard vs. 'Waltber, (Nab.) 78 N. W. 1061; Carlson vs.. L. & C. Co., (M-inn.) 129 N. W. 768; Sherman vs. Sherman, (iS. D.) 122 N. W. 443; City of Huron- vs-. Wiloox (S. D.) 98 N. W. 88; McElroy vs. Pope (Ky.) 153 S. W. 903, 44 L. R. A. (iN.. S.) 1221; Thorn-dike vs. City o-f Milwaukee, 326 N. W. 881.

(2) To point two, Appellants cited:

M-cIntyre et al vs. County Comrs. et al, (Colo.) 6t Pac. 237; Alden et al, vs. St. Peters Parish et al, (111.) 30 L. R. A. 232; Mackenzie vs. Trustees, 3 L. R. A. N. S. 227 N. J.; Ask. N'at. Bank vs-. City of Keene, (N. H.) 9 L. R. A. -N. S. 758; Upington vs. 'Corrigan, (N. Y.) 37 L. R. A. 794: Alden vs. St. Peters, etc. (111.) 30 L. R. A. 232-; Mills vs. Davidson, (N. J.) 35 L. R. A. “3-

POLLEY, J.

Defendants are the trustees and successors in interest of the Lincoln -County Agricultural Society, a domestic corporation, whose charter had expired1 by limitation of time, prior to the comimencment of this -action. On and' prior to the 30th day of March, 1895, -plaintiffs were the owners of a 20-acre .tract of land situated within or adjoining the city of -Canton. On- said 30th day o-f March, 1895,, .plaintiffs executed a -certain, deed by which- they conveyed' -said tract o-f- land to the said Lincoln County Agricultural Society. The portions- of said deed -that a-re material to a determination of the questions presented on this appeal are -as follows :

“For and in consideration of the sum of .one- dollar to them in hand paid by the Lincoln (County Agricultural Society, * * * and the covenants, restrictions, and -limitations, hereinafter mentioned, w|hich covenants, restrictions, and limitations -from- the base of the consideration of the -grant hereinafter -mentioned, and govern an-d control the vesting -of the title to the land hereinafter described, to *27hereby grant, bargain, sell, and convey, subject, to the restrictions and limitations hereinafter specified as aforesaid, unto the said party of the second part, its successors and assigns, the following described real 'estate: * * * To have 'and to. hold the same, together with all the hereditaments and appurtenances thereunto belonging or in any wise appertaining, excepting as ¡hereinafter expressly excepted, reserved, restricted, and limited, to the said party of the second part, its successors and assigns, forever. And the said parties of the first part * * * covenant with the party of the second part: * * * Provided, always, and this grant or deed of •conveyance is -made subject to the exceptions, reservations, restrictions, and limitations herein specified, to wit: * * *

“2. The said Lincoln County Agricultural Society, the said party of the second part, shall use the ’premises hereinafter described, for the purposes of an agricultural fair or other legitimate amusements under the direction of the board of directors of said-association only, and shall further cause to be held once in each year for twenty consecutive years from the date hereof an agriculture exhibition fair upon said premises.

“3. That in the event of the failure of said second party to have such agricultural exhibition fair upen said premises for five consecutive years during saidi ¡period of twenty years, then and in that event the title to the above-described land and premises shall vest absolutely in ¡the city of Canton, Lincoln county, South Dakota, -immediately -upon ’the happening -of the -aforesaid event as fully arid effectually to all intents -and purposes as .if this grant' ¡had originally been made to the said city of Canton, subject only to the re-striotion that the city of ¡Canton shall h-oldi and use the said premises for a ¡public park forever.”

It is admitted that an agricultural exhibition was held upon the s-akl ¡premises by the said society as proided for in paragraph 3 above set -out, but it is alleged in the complaint that the defendants, as the trustees of the above-named agricultural society now threaten, to, and are about to, divert the said property from, the uses for which it was conveyed to said society, arid are about to sell the said ¡property in lots, with the intention of preventing the same from hereafter being used for the purposes specified in the said deed, and, among other relief .prayed for by .plaintiffs-, they ask that defendants ibe restrained and enjoined -from selling or *28otherwise diverting the said property from the uses for which it was conveyed to the said agricultural society. The trial court made findings of fact and conclusions of law favorable tot defendants and1 decree was entered' accordingly. From such decree, and an order overruling their motion for a new trial, plaintiff appeal.

[1] The disposition, to be made of the appeal depends -upon the construction placed upon the deed. It is the contention of the appellants .that the effect of the limitations and' restrictions contained in the ’deed was to limit the use of- conveyed premises to the holding of agricultural exhibition fairs and other legitimate 'amusements, that such use was to be perpetual, -and that to devote said -premises to private uses in the manner set cut in the complaint 'constitutes a diversion from the purposes of the conveyance that warrants the interference of a court of equity. On the other •hand-, respondents contend that, having complied with the requirement to h-old an agricultural exhibition fair once every 5 years for a period of 20 years, the title to the premises was thereby relieved of -all the burdens imposed thereon by the condition® named in the deed-, and that they were then at liberty to' make such use or disposition o'f the premises as' seemed advantageous to them-'s elves.

In our view, neither of these contentions is correct. In -order to arrive at the -conclusion reached by respondents, the provisions contained in .paragraph® 2 and 3 above set out must be considered together and treated as a single condition, 'bo- the effect that, by holding an agricultural exhibition fair once in 5 years, the said ■condition was fully complied with. This is not 'a correct interpretation of these paragraphs. These two paragraphs -contain three separate conditions. The first is to -use the said premises for the purpose of an agricultural - fair, or other legitimate amusements. This use is without any limitation of time. The second condition is that the board of directors,of the said association shall cause to be -held, once in each year for 20 consecutive years an agricultural exhibition fair u-pon said- premises. For a failure to-comply with these two -conditions no penalty is provided. The third provision is that, for a- failure to hold an agricultural exhibition fair upon said premises for 5 consecutive years during the said period- of 20 years, the title should vest in the city of Canton, to be used as a public park, forever.

*29[2] The condition that the premises involved must be used -as a .place for holding agricultural fairs and other legitimate amusements is a proper arid legitimate use to ibe made of the premises, and such use, being in part, at least, the consideration for the conveyance, might have impressed an enforceable trust upon the property ; but the difficulty is the -deed contains no reversionary clause, nor does it name any .'beneficiary of s'uch trust. The appellants, who are the grantors in the deed, reserved no rights of any kind in the premises. If the grantee failed for a .period of 5 consecutive years during a period of 20 years to hold an agricultural exhibition fair upon the premises, the title was to vest in the city of Canton, and the city of Canton could have taken possession and control of the property. But the failure to hold such fairs in the manner specified would not have vestéd in the grantors any interest in the premises not Common to' all the other property holders in said city. There was some evidence tending to prove that appellants received some consideration for 'the conveyance of the land other than that named in the deed, and the court found as a fact -that the consideration received by the grantors for the land was its full value at that 'time.

[3, 4] The sufficiency of the evidence to sustain this- finding is not questioned by any proper assignment; therefore such finding must be taken as true. This brings the case within the same class as Huron v. Wilcox, 17 S. D. 625, 98 N. W. 88, 106 Am. St. Rep. 788, and Sherman v. Sherman, 23 S. D. 486, 122 N. W. 439. The grantors did not reserve a right of reversion or re-entry in case the property .was put to uses other than- those specified in the deed. When they executed -and -delivered the deed, they parted, not -only with their title, but with all their interest in and control -over the property. Huron v. Wilcox, supra. The appellants, having no interest in the subject of the action, are not entitled to the relief sought.

The judgment appealed from is affirmed.

GATE'S, J.

I concur in the -result, upon the ground that the provisions of the deed, taken as a whole, do not disclose an intent to create a perpetual trust, but rather a trust for the period of 20 years, -which period has expired.

McCO-Y, J., concurs in the result.