I concur in the holding of the majority in this proceeding. However important it may be that the existing dispute between the Board of Education of Kanawha County and the Town of South Charleston be settled, it is just as important that in a matter involving the approval and *Page 173 marketing of the bonded obligations of the state, counties, school districts and municipalities correct rules of procedure and action be defined and adhered to. With this thought in mind I am of the opinion that the function of the Attorney General, in cases of this character, is limited to passing on the legality of the bond issue, without regard to how the proceeds thereof may be expended, and I think we have authority for this position in the holding of this Court in Baxa v. Partlow, cited in the majority opinion. Of course, an expenditure for a purpose other than that for which the issue was proposed, can be prevented by appropriate proceedings independent of any question of the legality of the bond issue itself.
It would be unnecessary to say more were it not for the concurring opinion of Judge Haymond, concurred in by Judge Riley, which not only argues for the power of this Court to pass on the dispute between the Board and the Town, but proceeds to hold the Attorney General in error and decides the dispute aforesaid in favor of the Town of South Charleston. It is to this latter point of decision that this opinion will be directed.
My disagreement with the concurring opinion of Judge Haymond lies in the contention made therein to the effect that the Town of South Charleston is entitled to repudiate its solemn undertaking, an agreement in writing, and its recognition of that agreement on a court record, and as a reward therefor is permitted to take and hold absolute title to property for which, as between it and the Board of Education of Kanawha County, it paid nothing, and the title to which property it accepted, in the first instance, subject to its specific written agreement which this Court now permits it to repudiate, without placing the interested parties in status quo. The claimed justification for this contention, which, in my opinion, would bring about an unjust and inequitable result, is that a condemnation proceeding by which the United States of America acquired title to the property involved, wiped out all agreements *Page 174 and all equities theretofore existing, as between the Town of South Charleston and the Board of Education of Kanawha County, in relation to the property here involved. The admitted fact that neither the Town of South Charleston, nor the Board of Education of Kanawha County, ever intended such result, and contracted against it, and recognized the force of such contract, is ignored.
That my position may be fully understood, let me state that I concede that the United States of America, through the condemnation proceeding, aforesaid, acquired absolute title to the property covered thereby, free and clear of any rights or equities therein, possessed by either the Town of South Charleston or the Board of Education of Kanawha County. Having acquired such absolute title, it could transfer the same to any person, other than the town or board, and the transferee would have held the same absolute title to the property as that vested in the United States of America. Furthermore, having such absolute title, it could transfer the same to either the Town of South Charleston or the Board of Education of Kanawha County, and vest in either the complete legal title thereto. But when the legal title to the property became thus vested in one of the parties to the 1941 agreement, referred to in the concurring opinion, the grantee of the legal title would, by reason of said 1941 agreement, hold the same in the same relation, and subject to the said agreement, as it was held before the condemnation proceeding was instituted. In this case, we may say that the holder of the legal title would hold the same in trust for itself and other interested parties; or we can say that a party to an agreement, such as existed in this case, is estopped from making any claim to property involved inconsistent with the agreement, under which it acquired title thereto, and that it is immaterial how it acquired title to such property. This proceeding is controlled by equitable principles. One who makes an agreement in respect to a particular property is held to that agreement so long as he holds title thereto, and his obligation thereunder is not *Page 175 destroyed by the fact that the title has temporarily passed out of his hands. If he afterwards reacquires title, his obligation exists to the same extent as when it was originally created, particularly when he contracts to do so. The situation is analogous, although, of course, different, from that where there is a general warranty of title to real estate. Then, when an agreement is made between parties, and one or both, as a result thereof, is induced to surrender rights or property or otherwise prejudices himself, the other party is estopped to assert any claim, however derived, the effect of which, if admitted, would amount to a repudiation of his original agreement. Here the Board of Education of Kanawha County was induced to part with valuable property, without any consideration other than a lease agreement on the part of the grantee, the Town of South Charleston; and if that agreement is permitted to be repudiated, the Board of Education has lost its property without compensation. I do not think it necessary to cite authority in support of the fundamental principles controlling a trust relationship or estoppel. The concurring opinion is strangely silent in recognizing their force, or even mentioning them.
The case at bar seems to present a clear instance where these principles should be applied. The Board of Education of Kanawha County purchased certain lots in South Charleston at a cost of $1,771.53. By reason of the war activities of the United States of America it was understood that if the Town of South Charleston would furnish a site, and otherwise sponsor the project, the United States would erect a recreation building on the site so furnished. To facilitate the project, there was an agreement between the town and the Board of Education that certain lots theretofore purchased by the Board of Education would be conveyed to the town without a money consideration, but that in return for such conveyance the town would lease the said lots, and the proposed recreation building to be erected thereon, to the Board of Education for a term of ninety-nine years, with provision for renewal *Page 176 for two like periods. The conveyance of the lots was made by the Board of Education to the Town of South Charleston, on June 10, 1941, and the contemplated lease agreement was entered into on October 10, 1941. The whole purpose was to induce the United States of America to erect a recreation building on said lots, which it was believed would be a valuable asset to the community. It was, of course, contemplated that the town would convey the lots to the United States of America. When attorneys for the government looked into the matter, they concluded that it would be safer to institute a condemnation proceeding against both the Board of Education and the Town of South Charleston, and secure title to the lots in that way. This was done, and all interested persons, including the town and the board, were brought into the proceeding as parties. It was in effect a friendly suit. The United States of America paid a compensation of one dollar for the property which had cost the Board of Education the sum of $1,771.53. To show that this proceeding was not intended, as between the town and the board, to change the relation between them, as it affected said property, the final order in the condemnation proceeding entered on the 29th day of January, 1942, contained a recital of the agreement, between the board and the town, and the lease dated October 10, 1941, as follows: "* * * that if the land should be conveyed to the United States of America and it should reconvey it to the town or its designated grantee, the town, or such grantee, would forthwith lease the property to the board, in conformity to the form of the proposed lease, for a term of ninety-nine years with the right to renew it for two additional terms of ninety-nine years each and that the prior conveyance of the lots and the parts of lots by the board to the town should constitute the consideration for such lease." In that way, the Town of South Charleston, and the Board of Education, attempted to foreclose any claim which the town might make to the property, free of its contract with the board, in the event title to the property should thereafter become vested in the town. I know of no reason why this Court should feel *Page 177 impelled to force the Town of South Charleston to repudiate this well understood and well defined obligation.
We have here a case where two public agencies, apparently acting in good faith with each other, and seeking to serve mutual interests, entered into a written agreement. One of them furnished the valuable property to which their agreement related. It may be that in entering into this agreement each exceeded its legal powers; but in that event, there being no fraud involved, if the agreement should be declared invalid, the parties would ordinarily be restored to the status quo. There was no legal test of the agreement prior to the condemnation proceeding, aforesaid, and that proceeding made such test unnecessary, so far as the United States was concerned. The United States, after obtaining title to the lots involved, erected a recreational building thereon. After the end of the war, the lots and building were declared surplus property and offered for sale, and the Town of South Charleston, and as we understand, the Board of Education of Kanawha County, desired to purchase the same, but in this case we are dealing with the offer of the town to purchase said property. In this situation, what is it that prevents the Town of South Charleston and the Board of Education of Kanawha County from having made effective the contract entered between them? Of what concern is it to the Federal Government, after it has parted with its title and received the price it demands therefor, what this Court may decree as between the town and the board? And, in the face of the plain agreement between the town and the board, how can the temporary ownership of the title to the property by the Federal Government be given the effect of nullifying the contract between the town and the board aforesaid.
According to the concurring opinion, the Town of South Charleston may purchase the said lots and the building thereon out of the proceeds of the $18,500.00 bond issue which it would approve; and when it does so, may hold *Page 178 title to the same, free and clear of its obligation to lease the same to the Board of Education, under its contract of October 10, 1941, as recognized and referred to in the condemnation order of January 29, 1942; and may, in that manner, repudiate the very agreement which gave to it the claimed priority with respect to the right to purchase the property involved from the United States.
I do not believe that such a holding would conform to the principles of equity and fair dealing which should prevail in dealings between man and man, and which, for stronger reasons, should prevail as between agencies of government. These two governmental agencies set out, in good faith, to accomplish a result which was believed would be beneficial to the community which, in a different manner, was served by each. To effect this purpose the Board of Education conveyed valuable property to the Town of South Charleston, on the strength of a specific written agreement; an agreement which contemplated that the property so conveyed might thereafter be transferred to the United States of America, and still later might be reconveyed to the town. Every contingency was provided for to the end that the rights of the Board of Education in the property should not be lost; and yet, now that the contemplated return of the title to the said lots into the hands of the Town of South Charleston, in the same form as it was before the condemnation proceeding was instituted, is about to be effected, we are told that all the agreements aforesaid may be repudiated, the equities of the Board of Education destroyed, and, in effect, the money it invested in the property involved confiscated, all for the benefit of the Town of South Charleston, which can only accept such benefits by the repudiation of its agreement not to do so.
My position is that when and if the town purchases from the United States of America the lots and building here involved, it will hold the property in exactly the same relation as that in which it held the lots prior to the condemnation *Page 179 proceeding. In other words, it should be held to its solemn undertaking in that regard. That and nothing more. If the lease agreement should prove to be invalid, then, neither party being at fault, in any sense of intended wrong doing, they would be restored to the status they occupied before the deed of June 10, 1941, and the agreement of October 10, 1941, were executed. Of course, this would involve a reimbursement to the town of any amount paid by it to the United States of America. Thus equity would be dealt out to all parties concerned, and neither party would be unjustly enriched at the expense of the other. Furthermore, we would be saved the unworthy spectacle of the repudiation by a governmental agency of its solemn agreement, and of such repudiation being made effective by the mandate of this Court.