Appeal, No. 113, Jan. T., 1950, from decree of Court of Common Pleas of Northampton County, Dec. T., 1948, No. 15, in case of Asher G. Abel et al., Trustees, v. Girard Trust Company, Trustee, et al. Decree, as modified, affirmed; reargument refused June 19, 1950.
Charles Morris Hamilton, with him James Rick, 3rd, David B. Skillman, Calvin F. Smith, Ballard, Spahr, Andrews & Ingersoll and Smith, Paff, Van Sickle & Gafford, for appellant.
J. Lawrence Davis, with him Sullivan Cistone, for appellees.
Before Drew, C.j., Stern, Stearne, Jones and Bell, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
This is an appeal in a quia timet proceeding. The court below decreed that the plaintiffs-trustees were the owners in fee of the real estate in question.
On July 22, 1925, L. Renton Brown and others (grantors), for the consideration of $4,000, conveyed real estate in the Borough of Bangor, Pennsylvania, to a corporation of the first class, not for profit, named Bangor Park Association (grantee). The habendum clause of the deed reads:
"For the exclusive use of the grantee hereof, its successors and assigns, of said premises, as and for a public park, for the use and benefit of the inhabitants of the Borough of Bangor, aforesaid, and to and for no other use or purpose whatsoever."
The stated corporate purpose of the grantee was:
"The maintenance of a park and of facilities for skating, boating, and other innocent or athletic sports, to wit: basketball, football, baseball and others including a club for such purpose."
The grantee borrowed the entire consideration from a bank. Two years later it secured an additional loan of $1,000. The debt was reduced by payments on account. The bank failed and the plaintiffs herein were appointed trustees for the benefit of unsecured depositors and creditors of the bank. Suit was brought by the trustees upon the notes and judgment was obtained for $2,732.64. Execution was issued and the sheriff sold the real estate in question to the attorney on the writ, and the premises were deeded by the sheriff to the trustees.
The trustees have agreed to sell the land and to give a fee simple title therefore to the purchasers who decline to complete the agreement upon the ground that the trustees are unable to convey an absolute title in fee. It is conceded that the original corporate grantee ...