proceeds might be used in the erection of another school building at another place, without the consent of all parties interested."

This proposition is sound, and we will proceed to show that not only the church authorities (who had a certain interest in the building), but also the subscribers, consented for the building to be dedicated to the school trustees for school purposes, without a special limitation upon their powers.

H. N. Cousar testified as follows:

"I am an elder in Reedy Creek Presbyterian church, and am clerk of the session. I keep a record of the minutes of the session. My record shows that on March 22, 1903, at a congregational meeting of Reedy Creek Presbyterian church, by a unanimous vote, the following resolution was passed: "That the old Reedy Creek church be turned over to the trustees of Reedy Creek school, to be used as an academy, and that the building now used as a schoolhouse, and the furniture in the old church be sold, and the proceeds given to Reedy Creek church.' I was present at the meeting and took those minutes. That resolution was passed in regular meeting of the church members, after giving two weeks' regular notice. That was the proper way to pass it in regular meeting of the congregation."

The plaintiff, John D. Alford, testified that "most of the subscribers to that fund were members of Reedy Creek church." The plaintiff, E. A. McCormac, testified:

"I was present at the time the new church building was completed, and the old schoolhouse was turned over to the church. Mr. Richards was the first man to make the proposition. He made it to the trustees of the school. *** I was a member of the church and a trustee when the old church was substituted for the school building."

The defendant, W. W. Evans, one of the school trustees, testified:

"When the consolidation was first started, Mr. McGregor was the principal leader. The trustees took an active part

in it. Mr. McCormac also took a part, and signed the petition for it."

McCormac was at that time also one of the school trustees. E. A. McCormac, when recalled, testified as follows:

"Q. Mr. McCormac, it is said in the testimony of some of these gentlemen that you took part in the establishment of the Minturn school. Please state what you did. A. No, sir; I did not. When they first talked of consolidating those schools, and the question was raised where they would like to put the building, I offered to give them two or three acres of land on a hill between my house and Evans' and would give them $50 towards erecting a school building, if they would put it there. They wanted to vote bond issues before they would decide on the site of the school. I told them I would not support it until they decided positively where they would put the building. They wanted to put it in a pond, on the other side of the railroad on my place. I went still further and made another proposition, that if they would put it on the Steed place, and from under the influence of mischief that was going on there with no police, that I would give $50 towards paying for the lot."

It will be observed that the plaintiff, McCormac, was present at the meeting of the congregation in 1903, when the building in question was dedicated to the trustees, and that he consented to the adoption of the resolution making the dedication; that he was a school trustee at that time, and also at the time of the consolidation in 1914, and signed the petition for the consolidation; that the resolution was adopted without any limitation upon the powers of the trustees, other than those imposed by law; that as most of the contributors were members of Reedy Creek church, and the said resolution was unanimously adopted at a congregational meeting of the church, the only reasonable supposition is that most, if not all, the contributors were present and assented to the dedication; that McCormac did not object to changing the location of the building, provided the

change was acceptable to him. There is nothing in the record from which a reasonable inference to the contrary can be drawn. Having reached this conclusion, we proceed to determine whether the trustees, in the absence of a special limitation upon their powers, had the authority to sell the building. The rule in such cases is thus stated in 8 R. C. L. 33:

"In any case, however, such use is authorized as is fairly within the terms of the dedication, and reasonably serve to fit the property for enjoyment by the public, in the manner contemplated. The dedicator is presumed to have intended the property to be used, within the limitation of the dedication, in such way by the public as will be the most convenient and comfortable, and according to not only the proprieties and usages known at the time of the dedication, but also to those justified by lapse of time and change of conditions."

Furthermore, the acceptance of the schoolhouse for school purposes was subject to the provisions of the statute, relative to the sale of such property by the trustees. Section 1755 of the Code of Laws (Civ. Code) 1912 provides that: "The school trustees of the several school districts are authorized and empowered to sell school property, real or personal, in their school districts whenever they deem it expedient to do so, and to apply the proceeds of sale *** to the school fund of the district, wherein such sale is made."

Section 1761 provides that the board of trustees shall also have authority, and it shall be their duty:

"(1) To provide suitable schoolhouses in their districts, and to make the same comfortable, paying due regard to any schoolhouse already built or site procured, as well as to all other circumstances proper to be considered so as best to promote the educational interests of their district. * * *

"(5) To take care of, manage and control the school property of the district."

For these reasons I dissent.

MR. JUSTICE FRASER, dissenting. I dissent. This is a proceeding to enjoin the trustees of a school district from pulling down and carrying away a building formerly used by the school district as a schoolhouse.

The plaintiff alleges that they and others subscribed certain sums of money to build a schoolhouse on the grounds of the Reedy Creek Presbyterian church. That house was destroyed by fire, and a new bulding was erected. The plaintiffs subscribed to the new school building. The church needed a new building and sold the new schoolhouse, used the proceeds of sale in the erection of a new church, and turned over the old church building to the school district to be used as a schoolhouse, reserving the right to use it for certain church purposes. The old church was then used as a schoolhouse for some years. The school districts were consolidated and built a new schoolhouse on another location. The church then turned over the old church schoolhouse to the school district to be sold and the proceeds applied to the new schoolhouse. The plaintiffs, who were subscribers to the funds with which the schoolhouses were built, bring this proceeding to enjoin the removal of the church schoolhouse, claiming that its removal was in contravention of a written contract between the subscribers to the school fund and the church. These subscribers were members of this church and got the benefit of the schoolhouse fund in their new church. This written contract has been lost and the plaintiffs have attempted to prove the written contract by parol, and, as usually happens, the proof is vague, indefinite, and uncertain. One witness says the agreement was that the building itself was the subject of the agreement, and another that the agreement referred to the use of the land upon which the schoolhouse was to be erected; i. e.:

"They were to have the land as long as one of the subscribers wanted a school building. It was expressed in there just that way."

If the agreement refers to the schoolhouse, the proceeds of sale are in the new church. If the parties are entitled to follow the fund, then the fund is in the new church, and not in the old. If the agreement referred to the land, the injunction will not lie, because there is no effort to dispose of the land. One of the plaintiffs testified:

"I was present at the church meeting when this question was brought up, after the erection of the new school building. I did not object to it, and had nothing to say, because I knew it was not right."

The time to say "it was not right" was at the church meeting before the sale. When one does not speak when he ought to speak, the Court of equity will not hear him speak when he ought to keep silent. If the church has taken the property purchased by moneys subscribed by its members, and sold it, and converted the proceeds of sale to other uses, then the church should respond to its members.

There has been shown no sufficient agreement to substitute the old church for the second schoolhouse, and Judge Shipp was right when he refused to grant the injunction, and his order should be affirmed.

9656

DE WITT v. DOWLING ET AL.

(91 S. E. 1040.)

1. COVENANTS - GENERAL WARRANTY - BREACH-INCHOATE DOWER.-If an outstanding or inchoate right of dower exists against the title when the general warranty is made by the grantor, subsequent ripening of the dower right and its successful assertion constitute a breach of warranty.

2. COVENANTS GENERAL WARRANTY-BREACH-DOWER.-An assessment against the purchaser for dower to the grantor's wife amounts to an eviction pro tanto, in violation of general warranty, in diminution of the value of the land, but nevertheless is consistent with the passing of the fee.

8. FRAUDULENT CONVEYANCES-ACTION TO SET ASIDE-BURDEN OF PROOF. -In an action against a grantor's widow and children by a purchaser of land under warranty, where plaintiff alleged as breach the