#### Miller et al., Appellants, *v.*Village of Brookville et al., Appellees.

(No. 31684

Decided November 23, 1949.)

*Messrs. Murr & Mtirr,*for appellants.

*Messrs. Shively, Shively db Shell, Mr. Robert C. Eer-Tcins*and *Messrs. Scharrer, Scharrer & Eanaghan,*for appellee village of Brookville.

*218Weygandt, C. J.

This unfortunate controversy results from a number of inadvertences in the transfer of the land described in the plaintiffs’ petition.

On October 8,1936, Elgar and Elizabeth Weaver “in consideration of one dollar ($1.00) and other valuable considerations” deeded the tract to the village of Broolcville forever for use in perpetuity as a public park. *That dead contains no forfeiture or reversion clause.*

The village received and accepted the deed and took possession of the land for park purposes. The citizens of the village made continuous use of the park as such. Then a year and a half later the village council passed an ordinance authorizing the mayor to re-convey the land to Elgar Weaver for the stated reasons that the land no longer was needed for municipal purposes and also that the village lacked the funds to comply with the maintenance provisions contained in the deed. Thereafter on April 20, 1938, the mayor and the clerk on behalf of the village executed a deed to Weaver “in consideration of one and no/100 dollars ($1.00) and other valuable considerations to it paid by Elgar Weaver, the receipt whereof is hereby acknowledged.” Incidental to this reconveyance there was *no advertisement in a neivspaper of general circulation-,*nor was there either consent or knowledge on the part of the park board consisting of three members who had been appointed to supervise and manage the park.

The matter is confused further by evidence that the public use of the park continued for some time after the village had redeeded the land to Weaver.

Several years after the reconveyance Weaver sold the land. The purchaser later resold the tract to the plaintiffs who still own all except the small parcel they subsequently sold to the cross-petitioners.

*219The first contention of the plaintiffs and the cross-petitioners is that by his deed to the village Weaver conveyed merely a determinable fee and not a fee simple. They insist that inasmuch as the land was deeded to the village for use as a park, the title reverted to the grantor as soon as this use ceased. In other words, they contend that the deed from the village to Weaver was not necessary to revest the title in him but that the revesting occurred automatically when the use of the land for park purposes ceased.

It is true that by the terms of the deed the village was required to use the land “in perpetuity for a park and pleasure ground purposes.” And it was provided further in the deed that “the foregoing restrictions shall be enforceable by injunction by the grantors, their heirs or assigns, or any citizen of the community who may be interested in the welfare of the park.” But these provisions fall far short of constituting a reversion clause or of making the fee a determinable one.

In the third paragraph of the syllabus in the case of’ *City of Cleveland*v. *Herron,*102 Ohio St., 218, 131 N. E., 489, this court unanimously held:

> “Where a conveyance of real estate for park and boulevard purposes is made to and accepted by a municipality, the stated consideration whereof was the sum of $3,000, which was paid, and the promise of the municipal authorities to improve said tract in the respects recited in the deed, ‘all of which shall be done as regards both manner and material pursuant to -the direction and discretion of the board of public service * * * as rapidly as possible;’ and pursuant thereto a large sum of money is thereafter expended, the proposed improvement not being at any time abandoned, the grantor will not be awarded a decree of cancellation and rescission of the conveyance for delay in the *220prosecution and completion of such improvement, particularly where no ground of forfeiture is stated in the conveyance.”

On page 224 in that case appears the following statement by Matthias, J.:

> “It seems quite well settled that mere failure of consideration, whether partial or total, when unmingled with fraud or bad faith, is not sufficient in equity to warrant the rescission of an executed contract; and, further, that in the absence of fraud a deed for real estate will not be set aside as for a failure of consideration on the sole ground that the promises and agreements which entered into its execution, and which were to be performed in the future, have not been performed. So equity will not interfere ordinarily where a grantor has seen fit to accept a promise on the part of his grantee for the performance of certain acts, without specifically providing that failure to perform shall be a condition of forfeiture, or in some way affect the validity of the deed, or entitle him to a reconveyance. 4 Euling Case Law, 500, and 5 Pomeroy’s Equity Jurisprudence, Section 2108 (1 Pomeroy’s Equitable Eemedies, Section 686).

> ‘ ‘ The condition or proviso contained in this conveyance is quite general in its terms and in its requirements. It is neither a condition precedent to the passing of title, nor is it made by the terms of the conveyance a condition subsequent, requiring forfeiture of the title in the event of failure to fully perform the condition stated. When there is an agreement to make improvements on land and to do certain acts in the future as a part of the consideration for a conveyance, but performance is not made a condition subsequent, mere failure to perform on the part of the grantee, does not constitute a failure of consideration so as to entitle a grantor to rescission. *Lawrence*v. *Gayetty et al.,*78 Cal., 126.”

*221In the syllabus in the later case of *In re Matter of Copps Chapel Methodist Episcopal*Church, 120 Ohio St., 309, 166 N. E., 218, this court held:

> “Where a quitclaim deed, for valuable consideration, conveys to trustees of an unincorporated church association certain real property, ‘To have and to hold * * * unto the said grantees and their successors * * * so long as said lot is held and used for church purposes,’ without any provision for forfeiture or reversion, such statement is not a condition or limitation of the grant. Since the deed contains no provision for reversion or forfeiture, all of the estate of the grantor was conveyed to the grantees. Hence, a church building affixed to the realty does not pass to the heirs of the grantors when such lot and building cease to be used for church purposes.”

On page 313 in the case appears' the following statement by Allen, J.:

> “In the present deed, there are no words indicating an intent that the grant is to be void if the declared purpose is not fulfilled. The deed contains no words which indicate an intention that, if the grantee omitted to use the estate for church purposes, the same should thereupon be forfeited, and should revert to the heirs of the grantor.

> “It is an elementary proposition of law that conditions subsequent are not favored by the law, because on the breach of such conditions there is a forfeiture, and the law is adverse to forfeitures. 4 Kent’s Commentaries, 130; *Stanley*v. *Colt,*5 Wall. (72 U. S.), 119, 18 L. Ed., 502; *Kilpatrick*v. *City of Baltimore,*81 Md., 179, 31 A., 805, 27 L. R. A., 643, 48 Am. St. Rep., 509. Hence a condition will not be raised by implication from a mere declaration in the deed that the grant is made for a special and particular purpose, without being coupled with words appropriate to make such condition. *Packard*v. *Ames,*16 Gray (82 Mass.), 327.

> *222“Where the language employed declares a condition and imports a forfeiture, a clause of re-entry is-not necessary, but we cannot insert into this deed, by mere judicial construction, words signifying a condition and reversion to grantors in the event the condition is broken.

> “ * * * and no deed will be construed as creating such a condition [subsequent] unless the language to that effect is so clear that no room is left for any other-construction.

> “This is the precise situation with regard to the-deed in question here. There are no words of condition or forfeiture in the deed. There is no reverterclause, nor any provision establishing the right of reentry. Hence, taking the deed by its four corners, it shows that the grantor intended to convey, and did' convey, to the grantees all of his estate in the land.”'

Clearly in the instant case a fee simple title was-conveyed to the village.

The next question relates to the effect of the deed from the village to Weaver.

Section 3699, General Code, reads as follows:

> “No contract for the sale or lease of real estate shall be made unless authorized by an ordinance, approved' by the votes of two-thirds of all members elected to the council, and by the board or officer having supervision or management of such real estate. When such-contract is so authorized, it shall be made in writing by the board or officer having such supervision or management and only with the highest bidder, after advertisement once a week for five consecutive weeks in a newspaper of general circulation within the corporation. Such board or officer may reject any or all bids and readvertise until all such real estate is sold or leased.”

There is no evidence that the park board or officer having supervision or management of the park ap*223proved the sale and reconveyance of the land to Weaver. One member of the park board testified that he did not even learn of the reconveyance to Weaver until “several months after it was done.”

Furthermore, it is conceded that the transaction was not advertised in a newspaper.

The plaintiffs and the cross-petitioners insist that compliance with these statutory requirements was not necessary. This view is based on the contentions that the transaction was not a sale or lease; that the village had merely a determinable fee; that the village simply abandoned the land and returned it to Weaver; and that hence no sale was necessary.

One fatal difficulty with this theory is that, as previously observed, the deed from Weaver to the village contained no forfeiture or reversion clause and the village’s title was not a determinable fee but a fee simple which therefore was unaffected by the void deed executed by the village without advertising in conformity with the provisions of the statute. Hence, assuming without deciding that the village could dispose of the property, this deed being void, no title was conveyed to Weaver, and the citizens of the village of Brookville are not estopped from interposing a defense to this suit. *Louisville & Nashville Rd. Co.*v. *City of Cincinnati,*76 Ohio St., 481, at page 507, 81 N. E., 983.

The courts below were correct in holding that the village of Brookville obtained a fee simple title to the land here involved and that this title was not affected by the attempted reconveyance to Weaver.

*Judgment affirmed.*

Matthias, Stewart and Taut, JJ., concur.

Hart and Turner, JJ., dissent.

Zimmerman, J., not participating.

*224Hart, J.,

dissenting. I deem it appropriate to state some additional facts which will aid in the consideration of the fact structure in this case.

On October 8,1936, Elgar Weaver and wife executed a deed to the village of Brookville for the 70-acre tract in question as a gift to the village “to be used as a park” subject to certain restrictions, among others, that the property could not be used for profit-making purposes, and that the property was conveyed in perpetuity for use for park and pleasure ground purposes, which restrictions were to be enforceable by injunction by the grantors, their heirs or assigns, or any citizen of the community who might be interested in the welfare of the park.

The grant was coupled with a request that the grantee improve the land for park purposes, as soon as improvements could be conveniently made, by the erection of a fence enclosing the premises, by landscaping the ground and properly maintaining- the same, by providing a reforestation plan and by building- a dam across the stream flowing through the premises, thereby creating a lake.

The village council had adopted a resolution accepting this conveyance on behalf of the village of the lands therein described to be used “for park purposes.”

A former owner of this land had, on his own account, constructed thereon a baseball diamond with a small bleacher, a small swimming pool and a few picnic tables.

The village council appointed a park board of three persons, one of whom was designated treasurer, to manage and control this park. Some small amount of work was done by private parties in cleaning up the premises, but the village did not contribute any funds for that purpose. The village council made no levies or appropriations for park purposes, no public funds *225ever came into the hands of the park board and none were spent.

The record does not disclose whether Weaver or the village council made the first move, but the village council, later appreciating that it had no funds with which to maintain a park and no doubt realizing its liability for nuisance if the park was not made safe for visitors, adopted, on April 19, 1938, an ordinance which recited that the Weaver property was not needed for municipal purposes and because of lack of funds the village had been unable to comply with the provisions of the deed from Weaver in the maintenance of the land for the park purposes; and that in the opinion of council the property should be returned to its former owner. The ordinance authorized the mayor, on behalf of the village, to execute a conveyance to Weaver. This conveyance was executed on April 20, 1938.

The question arises whether this arrangement arising out of the conveyances and the restrictions or conditions embodied therein constituted a reseindable contract, and whether the reconveyance of the prop- ' erty to Weaver was void. Here is where I fail to concur with the view of the majority of the members of the court as expressed in the majority opinion.

The court holds that the deed from the village to Weaver was void because there was no compliance with Section 3699, General Code. It is my view that this section applies to lands acquired by municipalities for a valuable consideration and not by way of gift with mutual obligations attached, and must be followed when such lands are to be disposed of when no longer needed for municipal purposes. The transaction involving the deed to Weaver, in my opinion, was not a sale but constituted a rescission of a contract which the village was unable to carry out, a procedure that bears the stamp of good faith, equity and justice, *226and a procedure which, as between private individuals, would, under the same circumstances, be acclaimed as valid and enforceable.

Under what principle of law and justice would a municipality be justified in selling a parcel of real estate acquired as a gift but with obligations attached to its possession and use, with which obligations it was unable to comply, and in which property the municipality never invested any sums on its own account? Property acquired by municipalities by way of gift for a specific purpose may not be sold in case it cannot be used for such purpose, but the donor and the donee may rescind the contract. “The uses to which land dedicated by its private owner as a park may be devoted depend upon the purposes of the dedication as determined by the intention of the dedicator, and such land cannot be used for any purpose which is inconsistent with such intention.” 30 Ohio Jurisprudence, 682, Section 14. A municipality appropriating lands by condemnation proceedings is not vested with a fee in the lands taken. Its estate is limited to an easement for the purposes intended, which upon abandonment thereof, reverts to its original proprietor. *Newton*v. *Manufacturer’s Ry. Co.,*115 F., 781.

The text in 39 American Jurisprudence, 829, Section 34, is as follows:

> “As a general rule, a municipality has no power to convey or sell land dedicated as a public park, square, or common, and the legislature is powerless to authorize such a sale. Notwithstanding municipal corporations possess the incidental or implied right to alienate or dispose of their property, real or personal, of a private nature, unless restrained by charter or statute, they cannot dispose of property of a public nature such as a public park or common in violation of the trusts on which it is held; and although a city takes the title to lands condemned for park purposes, it takes it for *227the public use as a park, and holds it in trust for that purpose.” See, also, *Porter*v. *International Bridge Co.,*200 N. Y., 234, 93 N. E., 716.

Upon again taking possession of the land Weaver plowed it up, including a part of the ball diamonds, and planted it in crops. New fences were built around the land, together with a gate which was locked up. On July 29, 1942, he sold the property to Donovan L. Alt-house and Eay W. Althouse for $7,500. On March 16, 1945, they in turn sold the property to the plaintiffs, Eobert W. Miller and Electa T. Miller, for a consideration of $8,500. Since purchasing the lands the Millers have used the entire tract with the exception of a small area sold to Lawrence Bowser and Marie Bowser, cross-petitioners herein. The Millers improved the property by drilling new wells, one at a cost of $1,000, building a large garage at a cost of $6,000, rebuilding a log cabin at the cost of $2,500, and improving a cottage in the amount of $2,300. The Bowsers purchased their tract at a cost of $850 and, in the spring of 1947, built a brick house upon the same at a cost of $12,500. During the entire time since the village deeded back the property to Weaver and while these improvements were being made, no action was taken by the village until it filed an answer in this case in August 1947, more than nine years after it was out of possession and title.

Under all these circumstances, in my opinion, the doctrine of estoppel should apply. The claim of the village is without equity and the judgment of the Court of Appeals should be reversed.

Turnee, J., concurs in the foregoing dissenting opinion.