Mayor of Gainesville v. Brenau College , 150 Ga. 156 ( 1920 )

George, J.

(After stating the foregoing facts.) Two questions only are raised by this record, and we deal with them in the order made.

1. It is contended that the effect of the deed from Brenau Association to Brenau College, referred to in the statement of facts, is not to vest the title to the property in Brenau College; that is to say, it is contended that the conditions enumerated in the deed are to be construed as conditions precedent and not as conditions subsequent. Particularly it is insisted that the third condition, the assumption of the indebtedness on the property, is in the nature of a consideration, and hijace is a condition precedent. If a condition subsequent, it is conceded that the mere possibility of reverter which remains in Brenau Association is not an estate in land and is not subject to taxation. See Moss v. Chappell, 126 Ga. 196 (54 S. E. 968, 11 L. R. A. (N. S.) 398); Wadley Lumber Co. v. Lott, 130 Ga. 135, 138 (60 S. E. 836); 1 Warvelle on Vendors (2d ed.), 521. Under the-code “An estate may be granted upon a condition, either express or implied, upon performance or breach of which the estate shall either commence, be enlarged, or be defeated.” § 3716. The code classifies the conditions as either precedent or subsequent. “The former require performance before the estate vests; the latter may cause a forfeiture of a vested estate. The law inclines to construe conditions to be subsequent rather than precedent.” Civil Code, § 3717.' It is not always easy to determine whether the condition created by the words of a conveyance is precedent or subsequent. Technical words are not required to create a condition subsequent. Jones v. Williams, 132 Ga. 783, 785 (64 S. E. 1081). The authorities generally agree that the construction must depend upon the intention of the parties as gathered from the whole instrument; and under our Civil Code (§ 4266) technical rules of construction are to be disregarded when obedience to such rules would defeat the intention of the parties. Wadley Lumber Co. v. Lott, supra. In 2 Washburn on Real Property, § 941, the general rule approved by many courts is quoted as follows: “ If the act or condition required do not necessarily precede the vesting of the estate, but may accompany or follow it, and if the act may as well be done after as before the vesting of the estate, or if from the nature of the act to be performed, and the time required for its performance, it is evidently the intention of the parties that the estate shall vest, and the grantee perform the act after taking possession, then the condition is subsequent.” An instance usually given of a condition precedent is «a grant to A upon his marriage. An instance of a condition subsequent is a devise to B during widowhood, and upon remarriage the estate to vest in testator’s children. So also a grant in which the grantor reserves to himself a rent with the right to enter upon default in payment of rent is a condition subsequent. A conveyance of an estate in fee simple, upon condition that the grantee shall pay to the grantor during the time of the natural life of the grantor an annuity of $350, is a condition subsequent. Denham v. Walker, 93 Ga. 497, 498 (21 S. E. 102). A conveyance of land upon consideration of the payment of five dollars cash and “that the said [grantee] for the remainder of his [grantor’s] declining days shall take care of . . and provide him suitable clothing and' comfortable provisions and bedding, suitable to his circumstances and connections in life, and look after his estate and manage it for the best interest of the estate when he [grantor] was unable to look after it himself, and do all things necessary and proper to be done, and with the same care and attention as though he [grantee] were looking after his own affairs,” is a conveyance upon condition subsequent. Lindsey v. Lindsey, 62 Ga. 546. See also Jones v. Williams, supra; Winn v. Tabernacle Infirmary, 135 Ga. 380 (69 S. E. 557, 32 L. R. A. (N. S.) 512); Davis v. Davis, 135 Ga. 116 (69 S. E. 172); Wilkes v. Groover, 138 Ga. 407, 408 (75 S. E. 353). Construing the instrument as a whole, it was manifestly the intention that the title to the property should vest in Brenau College. The granting clause set forth in the statement of facts leaves little doubt of the correctness of this conclusion. The conditions imposed recognize a conveyance of the property to the grantee in the deed. This conclusion is strengthened rather than weakened by the restriction on the power of the grantee to encumber the property without the written consent of the grantor, contained in the concluding clause of the deed. See, in this connection, Harrison v. Harrison, 105 Ga. 517 (31 S. E. 455, 70 Am. St. R. 60).

2. The second position of plaintiff in error is that only “the buildings” of educational institutions are exempt from taxation, under the constitution and under the code. The language of the constitution so far as material is that the General Assembly may by law exempt from taxation “all buildings erected for and used as a college, incorporated academy, or other seminary of learning,” provided the “property be not used for purposes of private or corporate profit or income.” Civil Code, § 6554. The legislature, in exercising the power so conferred upon it, followed the wording of the constitution. Civil Code, § 998. It is said that taxation is the rule and exemption from taxation the exception. The rule of strict construction is invoked, and, strictly construed,- it is said that the land upon which the buildings of an "educational institution are located is not exempt from taxation. The precise question has not been decided by this court. In Linton v. Lucy Cobb Institute, 117 Ga. 678, 688 (45 S. E. 53), and especially in the concurring opinion of Candler, J., it was assumed that buildings include the ground upon which they are located. In Brewer v. American Missionary Association, 124 Ga. 490 (52 S. E. 804), this court evidently considered that the whole property, buildings and grounds, was exempt from taxation. In Cassiano v. Ursuline Academy, 64 Tex. 673, 675, it was decided that the exemption of “ buildings ” embraced the land upon which the buildings were located. See also Blackman v. Houston, 39 La. Ann. 592 (2 So. 193). The opinion by Chief Justice Bleckley in Trustees etc. v. Bohler, 80 Ga. 159, 162, 165 (7 S. E. 633), strongly indicates that the exemption from taxation of an institution “would necessarily carry with it the land covered with the necessary .buildings, grounds for recreation, etc., connected therewith and used by the institution. Under the agreed statement of facts, so much of the land of Brenau College as is not actually covered with necessary college buildings is adjacent thereto and used exclusively as a college campus. We recognize the rule that the statute exempting property from taxation is to be strictly construed. Brenau Association v. Harbison, 120 Ga. 929. (48 S. E. 363, 1 Ann. Cas. 836). We regard the rule as salutary. Nevertheless buildings erected for and used as colleges, incorporated academies, and seminaries of learning are usually permanent in character. In a relative sense they are immovable. When, therefore, so solemn an instrument as the constitution authorizes the exemption of all such buildings, and when the General Assembly in exercising the power so conferred upon it exempts from taxation all such buildings, a construction of the statute consonant with the purpose of the exemption and the settled policy of the State, as reflected by the exempting statute, must be adopted. Buildings will therefore be construed to embrace the land upon which they are located and the land adjacent thereto necessary for their proper use, occupancy, and enjoyment, provided of course “the property be not used for purposes of private or corporate profit or income.” We conclude that the court did not err in granting an interlocutory injunction.

Judgment affirmed.

All the Justices concur.