Gerald C. Mann 

Hon. Weaver H. 

State Board of 

Austin, Texas 

Dear Sir: 

Baker, Chairman Opinion NO. O-5625 

Control Re: Does the State Board of 

Control, by virtue of H.B. 

1188 Acts of the Regular 

Session of the 45th. Legislature, 1937 (Article 3211a, 

V.A.C.S.), have authority to 

sell and convey the real and 

personal property donated to 

the State of Texas by the 

Dickson Colored Orphanage, 

Inc., and related questions. 

In your letter of September 21, 1943, you requested 

our opinion upon certain facts, which may be summarized as 

follows: 

Dickson Colored Orphanage, Inc., conveyed certain 

property near Gilmer, Texas, to W. H. Francis, Trustee, by deed 

dated August 9, 1929, which deed was made upon the following 

trust and conditions, towit: 

"If the State of Texas, through its proper administrative channels, shall accept the said properties for the 

establishment and maintenance of an orphan asylum for colored children as aforesaid, then and in that event the 

said W. H. Francis, Trustee, the grantee herein, shall and 

zi;tizf$eby empowered and directed to deliver the said propunto the State of Texas,, and to execute and deliver 

unto tAe State of Texas his deed and conveyance thereof, 

conveying the above described premises and properties unto 

the State of Texas for the purposes herein specified, free 

from all debts, liens and encumbrances of any character 

whatsoever, in which event the grantor herein binds itself 

to pay off and satisfy all debts, liens or encumbrances of 

every character existing against said property, and the 

deed of conveyance by the said W. K. Francis, Trustee, 

shall vest in the State of Texas an unencumbered fee simple 

title to said property." 

Such donation was conditionally accepted by S.C.R. No. 

25, Acts of the Regular Session of the 41st Legislature, 1929, 

and finally accepted by H. B. No. 11, Acts of the 3rd Called 

Session of the 41st Legislature, 1929. 
Hon. Weaver H. Raker, page 2 CO- 562 5) 

W. H. Francis, Trustee, conveyed the property belonging to the Dickson Colored Orphanage, Inc. to the State of 

Texas by deed dated August 26 1930. 

House Bill No. 11, Acts of the 3rd Called Session of 

the 41st Legislature, 1929, and House Bill No. 1188, Acts of 

the Regular Session of the 45th Legislature, 1937, authorize the 

State Board of Control to move any and all orphan negro children 

from the Dickson Colored Orphanage near Gilmer, Texas, to the 

Deaf, Dumb, and Blind Asylum for Colored Youths and Colored Orphans at Austin, Texas, whenever such Board deems it advisable 

to do so. All such children have been moved to the Asylum at 

Austin, because of the decreased attendance at both institutions, 

and the fact that the Asylum at Austin has better facilities for 

the care, support and maintenance of such children than the institution near Gilmer. 

Both House Bill No. 11 and House Bill No. 1188, supra, 

authorize and direct the State Board of Control to sell the 

Dickson Colored Orphanage property for the best price obtai~nable, 

after the removal of all the negro children therefrom, and to 

convey the same by deed and bill of sale duly ex,ecuted by the 

members of the Board of Control. Such Acts further provide that 

"the proceeds from the sale of said property when collected shall 

be used by the said Board of Control for the purchase of additional land, the erection of additional buildings, or the support 

and maintenance for the said Deaf, Dumb and Blind Asylum for 

Colored Youths and Colored Orphans at Austin, Texas, as said 

Board may determine to be for the best interest of said institution." 

You request our opinion upon the following questions: 

"(1) Assuming the title was good and merchantable 

in the Dickson Colored Orphanage on February 9,,1929, when 

the aforesaid deed to W. H. Francis, Trustee, was executed, 

does the deed from the said W. H. Francis, Trustee, to the 

State of Texas, dated August 26, 1930, and recorded as 

aforesaid, pass the fee simple title to the lands and premises conveyed, or purportedly conveyed, by the last mentioned deed? 

"(2) Does the State Board of Control, by virtue of 

the authority given it, in Section 3 of Article 3221 (a) 

of the Revised Civil Statutes of Texas have authority to 

convey upon the terms and conditions prescribed by said law 

unto's purchaser all the interest owned by the State of 

Texas? 

“(3) Assumin~g the answer to the last question is in 

the affirmative, does~ the State Board of Control have the 

legal right, when the proceeds of such sale is collected, 
. . 

Hon. Weaver H. Raker, page 3 (o-5625) 

to purchase additional lands, erect additional buildings, 

or use such purchase money for the support and maintenance 

of the Texas Deaf, Dumb and Blind Institute for Colored 

Youths here in Austin, Texas?" 

The abstracts of title to all of this property were 

examined and approved' by the Honorable Robert Lee Bobbitt, Attorney General of Texas, on August 28, 1930, and the deed from 

W. H. Francis, Trustee, to the State of Texas was prepared and 

approved by him. We therefore assume that by your first question you only want our opinion upon the legal effect of the recitations and conditions in the deed from Dickson Colored Orphanage, Inc. to W. H. Francis, Trustee, and in such Trustee's deed 

to the State of Texas. 

The deed from Dickson Colored Orphanage to W. H. Francis, Trustee, dated February 9, 1929, recites that the directors 

of such institution have tendered unto the State of Texas all 

the properties owned by it, subject to acceptance by the State 

of Texas, "for the establishment and maintenance of an orphan 

asylum forcolored children, said properties to be donated to 

the State of Texas for such purpose." The consideration was recited to be "$10.00 cash in hand paid",,the receipt of which 

was acknowledged. The deed was made upon the trust and conditions set out above. 

The deed from W. H. Francis, Trustee, to the State 

of Texas, dated August 26, 1930, recites the execution of the 

deed from Dickson Colored Orphanage to such Trustee, and the 

terms and conditions thereof. Such last mentioned deed conveys 

the property; covenants to warrant and defend the same, and is 

in the form of a warranty deed conveying an absolute fee simple 

title, unless the statement "for the establishment and maintenance of an orphan asylum for colored childrenl' is a restriction 

on the estate conveyed. 

Does the statement in the deed, "for the establishment and maintenance of an orphan asylum for colored children", 

constitute such a condition as, if breached, would terminate, 

or give to Dickson Colored Orphanage, Inc. the right to divest 

the State of Texas' title to the property conveyed? 

"A condition may be distinguished from a conditional 

limitation by the results which follow upon a breach of the 

condition. The distinction, although nice and technical, is 

yet familiar law. If the tenancy is upon condition, and there 

is a breach, the estate does not determine unless there is a 

re-entry by the grantor. Rut, in the case of a conditional 

limitation, the estate determines upon the happening of the contingency." 12 Tex.Jur. 125. 
. 

Hon. Weaver H. Raker, page 4 (O-5625) 

"The language used must be sufficient to give rise 

to a condition either by express terms or by implication, as 

evidencing the intention of the parties, and must import a 

condition ex proprio vigore. It appears that such language 

must be used in the conveyance itself, which, in the case of 

a condition subsequent, must provide to the effect that a 

breach shall operate to destroy the estate and re-invest it in 

the grantor, parol evidence to establish a condition being inadmissible. . . . Where the language or intention is doubtful, 

the promise will be construed as a covenant, especially in the 

absence of any provision reserving title to the grantor or 

stipulating for a reversion of the estate in the event the contract be broken by the grantee. . s ." 12 Tex. Jur. Sec. 86, 

pp. 131 et seq. 

?The question may arise as to whether a particular 

agreement or promise in a deed is a covenant or a condition. 

Courts are inclined to construe the provision as a covenant 

rather than as a condition in any case in which such a construction may be imposed, since forfeitures are not favored. . 0 q 

The rule of strict construction is frequently applied in determining whether the intention is sufficiently expressed or implied to give rise to a defeasible estate, bearing in mind the 

rule of construction against the condition and in favor of an 

indefeasible estate. The provision will not be construed as a 

condition unless it is plainly designated or clearly inferable 

from the language used that such is the proper construction. 

. e . It 12 Tex.Jur. Sec. 85$ p. 129 et seq. 

In Olcott v. Gabert, 23 S.W.'985, where a railroad 

company had conveyed certain lots to a bishop "for the benefit 

of the Roman Catholic Church'" the court, holding that the 

deed did not contain a condition subsequent, said: 

"We are of the opinion that the grantee took under 

the deed of a fee-simple title in trust for the benefit 

of the church, whose officer he was. There are no conditions subsequent expressed, and, although they may be 

implied, they are not favored by law. It may be that the 

consideration expressed should be deemed nominal, and 

that the conveyance should be treated as voluntary, and 

it is true that a condition will be more readily implied 

in a deed of that character than in one which rests upon 

a valuable consideration. Yet the rule is well recognized that the mere declaration of the uses to which the 

granted premises are to be applied do not ordinarily import a condition. Where the declared purpose for which 

the property shall be used is a matter that will inure to 

the special benefit of the grantor, the courts are more 

inclined to treat the conveyance as conditional, than 
. . 

Hon. Weaver H. Raker, page 5 (O-5625) 

when, as in this case, the use is for the benef,it of a 

special class of persons, or of the public at large. In 

this case it does not appear that the maintenance of a 

church upon the lots was a matter specially advantageous 

to\the railroad company who made the grant." 

In Tarrant County v. McLemore, 8 S.W. 94, the deed 

involved was "to William Quayle, chief justice of said county 

of Tarrant . . . for the purpose of building a county jail 

thereon for said county of Tarrant." Tarrant County went into 

immediate possession of the property and built a jail thereon, 

and continuously used the same as a county jail until it built 

another jail, when it abondoned the former jail for jail purposes, 

but continued the use and possession of the lots in question. 

In reversing a judgment against the plaintiff, Tarrant 

County, which sued to quiet its title, the court said: 

"There is no condition annexed to the grant by which 

a forfeiture would be made to occur, nor would it be implied from the fact that the conveyance was for a jail, 

or for purposes of a jail. The terms of the deed are such 

as will, unless qualified by a cause of defeasance, convey 

a fee-simple estate. They vest the title in the county 

forever, The deed is not a mere dedication for public 

uses; it is a deed to the county. A condition subsequent 

that would work a forfeiture of the estate must be certain 

and clearly expressed. It must appear to be the manifest 

intention of the grantor by some provision in the instrument distinctly imposed." 

In Hughes V* Gladewater C. Line Independent S. Dist., 

76 S-W.(2) 471, the court said: 

"It is definitely settled in this state that where a 

deed contains apt language denoting the grant of an unconditional fee estate in land, other language contained in 

the instrument which merely denotes that the grant was 

made for a particular purpose is not regarded as implying 

that the grant is conditional. Texas & P. Railway Co. v. 

Martin (Tex.Com.App.) 71 S.W. (2d) 867, and authorities 

there cited. The same rule applies in construing a given 

provision for the purpose of ascertaining if it limits the 

duration of the grant. It is quite clear, therefore, that 

neither of the following clauses of the deed here under 

consideration imports either a condition subsequent or a 

limitation respecting the duration of the grant, namely, 

the granting clause which in terms denotes a grant "for 

school purposes only for the colored children of the County 
. 

Hon. Weaver H. Baker, page 6 (O-5625) 

and the clause reading, 'it is understood 

deeded to the trustees for school purposes 

only for the colored children of District No. 3 of Gregg 

County, Texas.'" 

of Gregg', etc.; 

that the land is 

The statement itself does not say that it is a condition, or that the property itself is to be used as a place “for 

the establishment and maintenance of an orphan asylum for colored childrenll, or that if it is not so used the grantor shall 

have the right to re-enter and forfeit the title of the State of 

Texas. There are no characteristic words of special limitation, 

such as 81while11 '(so long as", or "until"; nor characteristic 

words of conditions, such as "on condition", '8provided*1 or "so 

that", contained in the statement. The absence of such technical words is not fatal to the creation of a condition but deserves consideration in ascertaining the grantor's intention. 

We do not believe that this statement in the deed constitutes either a special limitation or a condition subsequent. 

This opinion is strengthened by the condition and circumstances 

surrounding the parties at the time of the execution of the deed. 

The Dickson Colored Orphanage was incorporated May 14, 

1900. Some time after such date the property in question was 

acquired, and an orphanage for colored children was established 

and maintained thereon. Twentynine years after it was incorporated, its directors tender all of its property unto the State 

of Texas for the establishment and maintenance of an orphan asylum for colored children. S.C,R. No. 25, supra, provides for a 

conditional acceptance of the donation, as follows: 

"BE IT FURTHER RESOLVED that the president of the Senate is hereby authorized to appoint two members of the Senate and the Speaker of the House be authorized to appoint 

three members of the House, as a committee to investigate 

the advisability of accepting this property and to report 

to the First Called Session of the 41st. Legislature and 

their expenses be paid out of the Contingent Expense Fund 

of the House and Senate and further this property be not 

accepted until after the Committee reports advising same." 

House Bill No. 11, supra, accepted the donation, and 

directed W. H. Francis, Trustee, "to execute and deliver the 

proper deed conveying said land and premises unto the State of 

Texas for the uuruose herein specified, free from all debts, 

liens, or encumbrances of any character whatsoever. D + .I' 

(Underscoring ours). Quotation is from Section 5 of the Bill. 

It is interesting to note that prior to the passage 

of House Bill No. 11, supra, there appears to have been no 
. . 

Hon. Weaver H. Baker, page 7 (O-5625) 

State Asylum for colored orphans. Section 1 of H.B. No. 11 

changed the name of the Deaf, Dumb and Blind Asylum for Colored 

Youths to the Deaf, Dumb and Blind Asylum for Colored Youths 

and Colored Orphans. Section 2 authorized the State Board of 

Control to accept and care for, support and maintain orphan negro children in such Asylum located at Austin, Texas. It also 

authorized the Board to move any and all orphan negro children 

from the Dickson Colored Orphanage located near Gilmer, Texas, 

to Austin and place them in said Asylum whenever they deem it 

advisable to do so. Section 3 makes an appropriation to pay 

the expenses of caring for and transporting said negro children 

to Austin. Section 6 provides that the money therein approprlated shall not be available until the property in question 

shall have been oonveyed"in fee simple . s o to the State of 

Texas." Section 7 authorizes and directs the State Board of 

Control to sell the property donated by the Dickson Colored Orphanage, "as soon as all the negro children are removed from 

said Dickson Colored Orphanage by the Board of Control." 

House Bill No. 11, supra, became effective twenty (20) 

days after adjournment. The Third Called Session of the blst 

Legislature adjourned July 20, 1929. It is reasonable to assume 

that the Dickson Colored Orphanage, Inc. and W. H. Francis, Trustee, had knowledge of the terms and conditions of the Acts of 

the Legislature accepting this donation. The final Act provided 

for the removal of the orphan children from Gilmer to Austin, 

and the sale of the donated property. The deed from Dickson 

Colored Orphanage to W. H. Francis, Trustee, was made twenty days 

after the acceptance of the donation by the Legislature, and the 

deed from the Trustee to the State of Texas was made over one 

year after the effective date of the final Act of acceptance. 

In our opinion these facts are conclusive and indicate 

an intention on the part of the Dickson Colored Orphanage, Inc. 

and W. H. Francis, Trustee, that the property was to be used for 

the benefit of the State in establishing and maintaining an orphanage for colored children, and not that these activities must 

be performed on the land itself. (Paraphrased from Boone Biblical College v Forrest, 275 N.W. 132, 116 A.L.R. 77). 

A more serious question is: Does the statement in the 

deed create a trust upon the property, and make the State of 

Texas the trustee? We think that it does. 

In Ryan v. Porter, 61 Tex. 106, the deed under consideration contained the following provision: "In trust that they 

may erect on the said lot a dwelling-house and fixtures for the 

use and occupancy of the married itinerant preaches of the 

Methodist Episcopal Church South, who may from time to time be 

stationed on the Nashville Circuit or that circuit or station 
. . 

Hon. Weaver H. Baker, page 8 (O-5625) 

which shall include said premises.B1 

The Court said: 

Y'here is no condition subsequentexpressed in the 

deed .from Chiles to the truetees, etc.; nor does the 

grantor therein use any of the apt words or forms of expression that are considered in law as implying a condition subsequent; and there is no clause of nullity, or any 

declaration to the effect that the deed is to be considered void for the failure of the trustees or others to do, 

or not to do, any particular act. 

"The declared object is, that the property is to be 

used for a specific purpose; by the grant Chiles intended 

to accomplish that particular purpose. Those upon whom 

the benefit was ?ntended to be conferred, as a class, are 

worthy of his generosity. 

"It is here claimed that, as the grantor directed 

the property to be used in a particular way, and for the 

purpose named, and impliedly it was to be'used for no 

other purpose or in any other mode than that specified, 

therefore a condition subsequent must be implied, to the 

effect, should the property ever cease to be used for the 

purpose mentioned, that it would then revert to the grantor 

or his representatives. Certain authorities are cited as 

sustaining that proposition. 

"In each of the several cases cited in the brief and 

argument of the distinguished counsel for appellants as 

supporting the proposition, an examination will attest 

that the conditions are expressed in the instrument. 

"From these settled principles the deed of Chiles 

cannot be construed as a grant upon conditions subsequent, 

a failure to comply with which would work a forfeiture of 

the land. 

"From an examination of the entire instrument, we 

think it apparent that Chiles intended thereby to divest 

himself of the title to the property unconditionally, 

and vest the fee in the trustees for the benefit of the 

Methodist church, limiting its use to the occupancy of the 

itenerant Methodist preachers appointed to that circuit. 

These limitations, instead of being implied conditions subsequent, are directions in fact to the trustee as to the 

management of the property. Neither the grantor nor his 

heirs are to receive any special benefit from a proper 

execution of the trust. a O While Chiles, by the terms of 
I . 

Hon. Weaver H. Baker, page 9 (O-5625) 

his deed, limits, at least impliedly, the use of the property, there is nothing contained in the instrument that 

indicates any intention on his part, regardless of changes 

that might take place in the town or community, or in the 

locality of the property and its surroundings, as well as 

the conveniences and necessitiesof the church and ministers in charge that the property must forever be used in 

that way. Undbubtedly his intention was to secure a comfortable home to the ministers assigned to that circuit 

while they were there stationed. That being the intention 

as far as expressed, whenever, upon proper application, it 

is made to appear that the particular property is no longer 

available for that purpose, a court of equity would direct 

its sale and the investment of the proceeds so as to secure 

the object intended to be accomplished by the grantor. 

“The grantor or his heirs would, perhaps, have such 

interest in the matter that they might, by suit in equity, 

compel a proper execution of the trust. And undoubtedly 

if the changed condition of the town, or the proper location of the church, etc. should render the land unfitted 

for the purposes intended, the trustees might apply to the 

equitable powers of the court, and upon a proper showing 

authority would be granted to sell the same and invest the 

proceeds for the purposes intended by the deed.” 

In Long v.. Moore, 48 S.W. 43 (writ denied), the Court 

said : 

“The right of appellants to recover the property will 

depend upon the proper construction of the deed of John 

Long to the school trustees, It is claimed that, as the 

deed declared that the property was to be used for school 

purposes, on its ceasing to be used for such purposes it 

reverted to the appellants, as the heirs of John Long, or, 

rather, that a resulting trust then arose in their favor. 

“It will be observed that the deed of John Long to the 

trustees for the Crocket School contains no limitations, in 

terms ’ whatever O There is a mere declaration of the purpose 

for which the land was conveyed, which was ‘for the purpose 

of a female academy,’ without the use of any other words of 

limitation, as ‘only’, or “for no other purpose whatever. ’ 

“The use for which the property was conveyed was for 

the benefit of the community at large, and there was no 

contemplation of its discontinuance, as a school might be 

maintained on the land as long as there were people in the 

community. O 0 The deed was shown to be an absolute warranty deed, with the mere declaration in the habendum clause 
Hon. Weaver H. Baker, page 10 (o-5625) 

that the property was for the purpose of a female academy; 

and it should be construed as a conveyance of a fee-simple 

title to the trustees named therein, for the benefit of the 

association.~l 

In identical language, both House Bill No. 11, supra, 

and House Bill No. 1188, supra, made provision for the distribution of the proceeds from the sale of the Gilmer property as 

follows: 

II . . 0 The proceeds from the sale of said property 

when collected shall be used by the said Board of Control 

for the purchase of additional land, the erection of additional buildings, or the support and maintenance for the 

said Deaf, Dumb and Blind Asylum for Colored Youths and 

Colored Orphans at Austin, Texas, as said Board may determine to be for the best interest of said institution." 

In view of the fact that a colored orphanage was "establishedV1 by House Bill No. 11, supra, at Austin, Texas, and 

provision was made for the removal of the colored children from 

Gilmer to Austin, and the proceeds from the sale of the Gilmer 

property were directed *'to be used by the said Board of Control 

for the purchase of additional land, the erection of additional 

buildings, or the support and maintenance for the Austin institution, we are convinced that both the directors of the Dickson 

Colored Orphanage and the Legislature of the State of Texas intended that a trust be created upon the donated property; that 

such property be sold, and the proceeds used for the benefit of 

the Austin Asylum. 

We therefore answer your questions as follows: 

(1) Fee simple title passed to the State of Texas by 

the deed from W. H. Francis, Trustee, subjedt to the trust 

above mentioned. 

(2) That the Board of Control has the authority to 

convey a fee simple absolute title to this property. 

(3) ,That the proceeds from the sale of such property, 

when collected 

State Treasure?, 

should be placed in a special account with the 

subject only to future appropriation by the 

Legislature for the benefit of the Deaf, Dumb and Blind Asylum 

for Colored Youths and Colored Orphans at Austin, Texas. YOU 

do not have the right to use such proceeds without an appropraation thereof by the Legislature. 
. . . 

Hon. Weaver H. Baker, page 11 (O-5625) 

Trusting the above answers your questions fully, we 

are 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

By /s/ Thos. B. Duggan, Jr. 

Thos. B. Duggan, Jr., Assistant 

APPROVED OCT 16, 1943 

/s/ Gerald C. Mann 

ATTORNEY GENERAL OF TEXAS 

APPROVED: OPINION COMMITTEE 

BY: GPB, CHAIRMAN 

TBD:BT:wb