Gerald C. Mann

Hon. Weaver H. State Board of Austin, Texas

Dear Sir: Baker, Chairman OpinionNO. 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 (Article3211a, V.A.C.S.), have authority to sell and convey the real and personal propertydonated to the State of Texas by the Dickson Colored Orphanage, Inc.,and related questions.

Inyour letter of September 21, 

### 1943,you requested
our opinionupon certain facts, whichmay be summarizedas follows: Dickson Colored Orphanage, Inc., conveyed certain propertynear Gilmer, Texas, to W. H. Francis, Trustee,by deed dated August 9, 1929,which deed was made upon the following trustand conditions, towit:

"If the State of Texas, through its proper administrative channels, shall accept the said properties for the establishmentand maintenance of an orphan asylum for colored children as aforesaid, then and in that event the saidW. H. Francis, Trustee, the granteeherein, shall and zi;tizf$eby

empoweredand directed to deliver the said propunto the State of Texas,, and to execute and deliver unto tAe State of Texashis deed and conveyance thereof, conveying the above described premises and propertiesunto the State of Texas for the purposesherein specified,free from all debts, liens and encumbrances of any character whatsoever, in which event the grantorherein binds itself to pay off and satisfyall debts, liens or encumbrances of every character existing against said property, and the deed of conveyanceby the saidW. K. Francis, Trustee, shallvest in the State of Texas an unencumbered fee simple title to said property."

Such donationwas conditionallyaccepted 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 theRegular Session of the 45th Legislature,1937, authorize the State Board of Control to move any and all orphan negro children from theDickson Colored Orphanagenear Gilmer, Texas, to the Deaf, Dumb, and BlindAsylum for ColoredYouths and Colored Orphans at Austin, Texas,whenever such Board deems it advisable to do so. All such childrenhave beenmoved to theAsylum at Austin, because of the decreased attendanceat both institutions, and the fact that the Asylum at Austinhas better facilities for the care, supportand maintenance of such children than the institutionnear 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 Orphanageproperty 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 furtherprovide that "theproceeds from the sale of saidpropertywhen 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 BlindAsylum for ColoredYouths and Colored Orphans at Austin, Texas, as said Boardmay determine to be for the best interest of said institution."
You request our opinionupon the following questions:

"(1) Assuming the titlewas 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 Texashave authority to conveyupon the terms and conditionsprescribed by said law unto's purchaserall the interest owned by the State of Texas? 

### “(3) Assumin~gthe answer to the last question is in the affirmative, does~the State Board of Controlhave 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 purchasemoney 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 propertywere examined and approved' by the HonorableRobert Lee Bobbitt,Attorney General of Texas, on August 28, 1930, and the deed from W. H. Francis, Trustee, to the State of Texaswas prepared and approved by him. Wethereforeassume that by your first questionyou onlywant our opinionupon the legal effect of the recitationsand conditions in the deed from Dickson Colored Orphanage, Inc. to W. H. Francis, Trustee,and in such Trustee'sdeed 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 institutionhave tenderedunto the State of Texas all the properties owned by it, subject to acceptance by the State of Texas, "for the establishmentand maintenance of an orphan asylum forcolored children, said properties to be donated to the State of Texas for such purpose." The considerationwas recited to be "$10.00 cash in hand paid",,thereceipt 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 towarrant and defend the same, and is in the form of a warranty deed conveyingan absolute fee simple title,unless the statement "for the establishmentand 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 conditionas, 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 conditionmay be distinguished from a conditional limitationby the resultswhich followupon 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 determineunless there is a re-entry by the grantor. Rut, in the case of a conditional limitation, the estate determinesupon thehappening of the contingency." 12 Tex.Jur. 125..

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

"The languageused 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 propriovigore. 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 establisha conditionbeing inadmissible.

. . .Where the language or intention is doubtful, the promisewill be construedas a covenant, especially in the absence of any provisionreserving title to the grantor or stipulatingfor 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 questionmay arise as to whether a particular agreement or promise in a deed is a covenant or a condition. Courtsare inclined to construe the provision as a covenant rather than as a condition in any case in which sucha constructionmay be imposed, since forfeituresare not favored.

. 0 q The rule of strict constructionis frequentlyapplied in determiningwhether the intention is sufficientlyexpressed or implied to give rise to a defeasible estate, bearing in mind the rule of constructionagainst the conditionand in favor of an indefeasible estate. The provisionwill not be construedas a conditionunless 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 Olcottv. Gabert, 23 S.W.'985,where a railroad companyhad conveyed certain lots to a bishop "for the benefit of theRoman Catholic Church'" the court,holding that the deed did not contain a condition subsequent, said:

"We are of the opinion that the grantee tookunder the deed of a fee-simple title in trust for the benefit of the church,whose officerhe was. There are no conditions subsequentexpressed,and, although theymay be implied, they are not favored by law. It may be that the considerationexpressed should be deemed nominal, and that the conveyance should be treatedas voluntary, and it is true that a conditionwill 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 themere declaration of the uses towhich 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 thatwill inure to the special benefit of the grantor, the courts are more inclined to treat the conveyanceas 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 churchupon the lots was a matter speciallyadvantageous to\the railroad companywho made the grant."

In Tarrant Countyv. McLemore, 8 S.W. 94, the deed involvedwas "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 Countywent into immediatepossession of the property and built a jail thereon, and continuouslyused the same as a county jailuntil it built another jail,when it abondoned the former jail for jail purposes, but continued theuse and possession of the lots in question.

In reversing a judgmentagainst the plaintiff,Tarrant County,which sued to quiet its title, the court said:

"There is no conditionannexed to the grant by which
a forfeiturewould be made to occur,nor would it be implied from the fact that the conveyancewas 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 thatwould work a forfeiture of the estatemust be certain and clearly expressed. It must appear to be themanifest intention of the grantor by someprovision 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 thatwhere a deed contains apt language denoting the grant of an unconditional fee estate in land, other language contained in the instrumentwhich merely denotes that the grantwas made for a particularpurpose 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 construinga 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 deedhere under considerationimports either a condition subsequentor a limitation respecting the duration of the grant,namely, the granting clausewhich in termsdenotes a grant "for schoolpurposes only for the colored children of the County.

Hon. Weaver H. Baker, page 6 

### (O-5625)

and the clause reading, 'itis understood deeded to the trustees for schoolpurposes 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 establishmentand maintenance of an orphan asylum for colored childrenll,

or that if it is not soused the grantor shall have the right to re-enterand forfeit the title of the State of Texas. There are no characteristicwords 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 technicalwords is not fatal to the creation of a conditionbut 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 strengthenedby the conditionand circumstances surrounding the parties at the time of the execution of the deed.

The Dickson Colored Orphanagewas incorporatedMay 14, 1900. Some time after such date the property in questionwas acquired, and an orphanage for colored childrenwas established and maintained thereon. Twentynineyears after it was incorporated, its directors tender all of its propertyunto the State of Texas for the establishmentand maintenance of an orphan asylum for colored children. S.C,R. No. 25, supra, provides for a conditionalacceptance 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 threemembers of the House, as a committee to investigate the advisability of accepting thisproperty and to report to the First Called Session of the 41st. Legislatureand their expenses be paid out of the ContingentExpense Fund of the House and Senate and further this property be not accepted until after the Committeereports advising same."

House Bill No. 11, supra,accepted the donation,and directedW. H. Francis, Trustee, "to execute and deliver the proper deed conveying said land and premisesunto the State of Texas for the uuruoseherein specified,free from all debts, liens, or encumbrances of any characterwhatsoever. D + .I' (Underscoringours). 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 tohave 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 ColoredYouths and Colored Orphans. Section 2 authorized the State Board of Control to accept and care for, supportand maintain orphan negro children in suchAsylum located at Austin, Texas. It also authorized the Board tomove any and all orphannegro children from the Dickson Colored Orphanage locatednear Gilmer, Texas, to Austin and place them in saidAsylum whenever they deem it advisable to do so. Section 

### 3 makes an appropriation to pay the expenses of caring for and transportingsaid negro children to Austin. Section 

### 6 provides that themoney thereinapproprlated shallnot be availableuntil the property in question shallhave 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 propertydonated by the Dickson Colored Orphanage, "as soon as all thenegro childrenare removed from said Dickson Colored Orphanageby the Board of Control."

House Bill No. 11, supra,became effective twenty (20) days after adjournment. The Third Called Session of the blst Legislatureadjourned 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 theActs of the Legislatureaccepting 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 toW. H. Francis, Trustee,was made twentydays after the acceptance of thedonation by the Legislature,and the deed from the Trustee to the State of Texaswas made over one year after the effectivedate of the final Act of acceptance.

In our opinion these facts are conclusiveand indicate
an intention on the part of the Dickson Colored Orphanage, Inc. and W. H. Francis, Trustee, that the propertywas to be used for the benefit of the State in establishingand maintaining an orphanage for colored children,and not that these activitiesmust be performed on the land itself. (Paraphrasedfrom Boone Biblical Collegev Forrest, 275 N.W. 132, 116 A.L.R. 77).

A more serious question is: Does the statement in the deed create a trustupon 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-houseand fixtures for the
use and occupancy of the married itinerantpreaches of the MethodistEpiscopal 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 .fromChiles to the truetees,etc.; nor does the grantor thereinuse any of the apt words or forms of expression that are considered in law as implyinga 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 specificpurpose; by the grant Chiles intended to accomplish that particularpurpose. Those upon whom the benefitwas ?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 particularway, and for the purpose named, and impliedly it was to be'used for no other purpose or in any othermode than that specified, thereforea condition subsequentmust be implied, to the effect, should theproperty ever cease to be used for the purposementioned, that it would then revert to the grantor
or his representatives. Certainauthorities are cited as sustaining that proposition.

"In each of the several cases cited in the brief and argument of the distinguished counsel for appellantsas supporting the proposition,an examinationwill attest that the conditions are expressed in the instrument.

"From these settledprinciples the deed of Chiles cannot be construedas a grant upon conditions subsequent,
a failure to complywith 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 propertyunconditionally, and vest the fee in the trusteesfor the benefit of the Methodist church, limiting its use to the occupancy of the itenerantMethodistpreachers appointed to that circuit. These limitations, instead of being implied conditions subsequent, are directions in fact to the trusteeas to the management of the property. Neither the grantornor his heirs are to receive any specialbenefit from a proper execution of the trust. a O While Chiles, by the terms ofI

.

Hon. Weaver H. Baker, page 9 

### (O-5625)

his deed, limits, at least impliedly, theuse of the property, there is nothing contained in the instrument that indicatesany intention onhis part, regardless of changes thatmight take place in the town or community, or in the locality of the property and its surroundings,as well as the conveniencesand necessitiesof the church and ministers in charge that the propertymust forever be used in thatway. Undbubtedlyhis intentionwas to securea comfortablehome to theministers assigned to that circuit while theywere there stationed. That being the intention
as far as expressed,whenever, upon proper application, it is made to appear that the particularproperty is no longer available for that purpose, a court of equitywould direct its sale and the investment of the proceeds so as to secure the object intended to be accomplishedby the grantor.

“The grantor or his heirs would, perhaps,have such interest in thematter that theymight, 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 trusteesmight apply to the equitable powers of the court,and upon a proper showing authoritywould be granted to sell the same and invest the proceeds for the purposes intendedby the deed.”

In Long v..Moore, 48 S.W. 43 (writdenied), the Court said: “The right of appellants to recover the propertywill depend upon the proper constructionof the deed of John Long to the school trustees, It is claimed that,as the deed declared that the propertywas to be used for school purposes, on its ceasing to be used for such purposes it reverted to the appellants, as theheirs of John Long, or, rather, that a resulting trust then arose in their favor.

“Itwill be observed that the deed of John Long to the trustees for the Crocket School containsno limitations, in terms’whateverO There is a mere declaration of the purpose for which the landwas conveyed,which was ‘forthe purpose of a female academy,’without theuse of any otherwords of limitation,as ‘only’,or “for no other purposewhatever.’

“Theuse forwhich the propertywas conveyedwas for the benefit of the communityat large, and therewas no contemplationof its discontinuance,as a schoolmight be maintained on the land as long as therewere people in the community. O 0 The deed was shown to be an absolutewarranty deed, with themere declaration in thehabendum clauseHon. Weaver H. Baker, page 10 (o-5625)

that the propertywas for the purpose of a female academy; and it shouldbe construedas a conveyance of a fee-simple title to the trusteesnamed 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 propertyas follows: II

. . 0 The proceeds from the sale of saidproperty when collected shall be used by the said Board of Control for the purchase of additional land, the erection of additionalbuildings, or the supportand maintenance for the said Deaf, Dumb and Blind Asylum for Colored Youths and Colored Orphans at Austin, Texas, as said Boardmay determine to be for the best interest of said institution."

Inview of the fact that a colored orphanagewas "establishedV1

by House Bill No. 11, supra,at Austin, Texas, and provisionwas made for the removal of the colored children from Gilmer to Austin, and the proceeds from the sale of the Gilmer propertywere directed *'to be used by the said Board of Control for the purchase of additional land, the erection of additional buildings, or the supportand maintenance for theAustin institution,we are convinced that both thedirectors of the Dickson Colored Orphanage and the Legislatureof the State of Texas intended that a trust be createdupon the donated property; that such property be sold,and the proceedsused for the benefit of the Austin Asylum.

We thereforeanswer your questionsas follows:
(1) Fee simple titlepassed to the State of Texas by the deed from W. H. Francis, Trustee, subjedt to the trust above mentioned.

(2) That the Board of Controlhas the authority to convey a fee simpleabsolute title to this property.

(3) ,Thatthe proceeds from the sale of such property, when collected State Treasure?,

shouldbe placed in a specialaccountwith the subject only to future appropriationby the Legislaturefor the benefit of the Deaf, Dumb and Blind Asylum for ColoredYouths and Colored Orphansat Austin, Texas. YOU do not have the right to use such proceedswithout an appropraation thereof by the Legislature.. . .

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

Trusting the above answers your questions fully, we are

Yoursvery 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

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