The premises sought to be recovered in this action were conveyed by Louis Le Couteulx, the plaintiff's devisor, to the city of Buffalo, on the 30th day of May, 1838, *Page 339 for certain specific and clearly expressed purposes. The language of the deed is, "the said premises hereby conveyed to be heldand appropriated by said city for the use, maintenance andsupport of a `free school, and for no other purpose.'"
The ground on which the plaintiff claims to recover is, that the city of Buffalo, at the time of the conveyance, had no lawful power to establish and maintain a "free school," and therefore could not take title to lands for the purposes indicated by the deed. There is no question but that the city in its corporate capacity had power to establish and maintain schools under the common school system of the State, to be supported in the manner prescribed by the several acts of the legislature creating that system; and one ground of the decision of the court below is, that the schools organized under that system are free to all persons and classes of community inhabiting the several districts, and are therefore "free schools" within the meaning of that term as used by the grant. This position, in my judgment, cannot be maintained. The language of the grant, it is true, is to be construed most strictly against the grantor; but when a particular term or phrase is used as descriptive of the special object or purpose of the grant, and there are other portions of the instrument clearly indicating the sense in which it is used, it would do violence both to the letter and intent of the conveyance to pervert the term or phrase to any other sense. That is precisely this case. The grantor recites as the real consideration of the conveyance, "that the said party of the first part, with a view of aiding in the establishment of an institution where the children of those who are unable or unwilling to provide for their education, may receive the same free of expense," has given, remised, c., the premises described, "for the use, maintenance and support of a free school, and for no other purpose." This language shows, beyond doubt, that the term "free school" is not used in the sense in which it may be considered descriptive of our "common schools," under the then existing system of the State, that is, free in respect to the universal admissibility of *Page 340 the children of all classes of inhabitants of districts, but to indicate a school which should be free in a pecuniary sense, and in respect to the expenses or charges for tuition to be bestowed therein.
It is essential, therefore, to the validity of the conveyance in question, to establish that the city of Buffalo could, at the time of receiving the conveyance, lawfully maintain a common school where education might be received by those entitled to attend it, free of any charge or expense specifically for tuition therein. This was the purpose which the grantor had in view, and it was solely to accomplish that end, and to induce the city to adopt and pursue it, that his beneficence was exercised.
The city was incorporated in 1832. Power was given to it by its charter to "take, hold, purchase and convey such real and personal estate as the purposes of the corporation might require." (Laws of 1832, p. 297, § 2.)
By the Laws of 1837, the common council of the city of Buffalo were made commissioners of common schools, in respect to the common schools in said city, with all the rights, powers and authority possessed by such commissioners in the several towns of the State, and it was made their duty to levy and raise the moneys required by law to be raised by tax, for the support of common schools in said city; and the proportion of the annual distribution of the common school fund of the State, belonging to the schools of said city, was to be paid to the treasurer of said city. (Laws of 1837, p. 438, §§ 11, 12.)
These powers of the city, in respect to schools, were increased by the act of March, 1838 (Laws of 1838, p. 40, §§ 16, 18, 20), and the common council were clothed with plenary power to divide the city into districts; to purchase or lease sites for, and erect school houses and keep them in repair; to supply them with books, furniture, appendages, and school apparatus, and to raise by tax upon the taxable property in the districts, from time to time, such sums as they might deem necessary for those purposes. And they were also empowered to raise, annually, for the support of *Page 341 common schools in said city, by tax upon the taxable property in said city, such sums as they might deem proper, not less than twice nor more than four times the amount of that portion of the annual distribution of the common school fund apportioned to the city. They were also invested with the entire control and management of the common schools of said city, and authorized to make such by-laws and ordinances as they might deem necessary for the good order and government of the same. These became a part of the corporate powers and duties of the city, and the authorities were as much bound to use them for the public benefit and advantage, as any other portion of the powers conferred by its charter. It was at this point of time, and doubtless with a view to this state of facts, that the liberal and public spirited grant in question was made, probably with intent on the part of the donor, to induce the city to attempt the experiment of a common school in every sense free, and which might lead to the universal establishment of such schools in that city, which followed so rapidly upon his generous action. (Sess. Laws of 1839, ch. 24, § 22.)
Under the powers of the corporation as they existed at the time the conveyance was made, I see no reason why the city might not have used the premises conveyed, for the purpose indicated by the grant. By applying to that object so much of the moneys received from the State appropriation, and of the tax authorized to be raised and added thereto, as should belong to the district existing or to be created, and regulating the continuance of the school, the number and wages of the teachers, and other expenses, as the circumstances might require, they could, without any infringement of law, have kept up a school in which no necessity for collecting tuition fees or charges, by rate bills, could arise. It is to be observed that rate bills, under the law, were to be resorted to only when the funds above referred to proved insufficient to pay the wages of teachers. The superintendent of common schools of the city was by law required to pay the wages of teachers in each district, "out of the moneys in his hands distributed to such district by the common council as commissioners *Page 342 of common schools, so far as such moneys may be sufficient for that purpose, and to collect the residue" from persons liable therefor, by rate bill, in the mode provided. (Sess. Laws 1837, ch. 392, § 23.) Whenever those moneys were sufficient, nothing was to be collected, and the school would be free, in a pecuniary and every other sense. Under the very general powers lodged in the common council, there would have been no difficulty in so regulating the school to which the use or income of the lands conveyed by Mr. Le Couteulx should be appropriated, that it would be a free school in the sense that all education given in it would be wholly gratuitous; and I think this was the very thing that gentleman desired to bring about and to aid.
The corporation having authority to carry out the object of the conveyance, were unquestionably authorized, under their power to hold real estate, to take the title by gift. (4 Kent Com., 374; 2 Black., 241; 5 Cow., 509.)
It follows that the conveyance to the city was a valid one and that the judgment below should be affirmed.
DENIO, Ch. J., was for affirmance, on the ground of a charitable use; CAMPBELL, J., on that ground, and also on the ground of the opinions; POTTER, J., also on both grounds; WRIGHT and PORTER, JJ., on the ground stated in the opinions.
Judgment affirmed. *Page 343