Mills v. Evansville Seminary

Cole, J. The claim of the appellants is, that the deed of September 14, 1859, was a grant upon condition, having been executed in pursuance of and under the previous executory contract to convey a site for a seminary; that the deed was voluntary, no consideration being paid or agreed to be paid for the land conveyed; and that the deed was executed solely for the purpose of furnishing a site for a seminary, with the express understanding of the parties thereto that when the land should cease to be used for seminary pui’poses the title should revert to the grantors. But no such condition is expressed in the deed, which is absolute in terms, and purports to convey an indefeasible estate. Now the object of this action is to have the deed reformed so as to make it express the actual intention and understanding of the parties, and, inasmuch as the land has ceased to be used for a seminary, to have the court declare and enforce the forfeiture. This, in substance, is the nature of the relief asked in the complaint; and the question, therefore, to be considered at the outset is: Will a court of equity exert its jurisdiction for such a purpose? It is well settled that it will not. The cases of Clark v. Drake, 3 Pin., 228, and Lawa v. Hyde, 39 Wis., 345, are direct decisions of our own supreme court upon this point. In the former case, the bill was filed for the purpose of aiding or enforcing a forfeiture, and, on demurrer, Judge Whiton, in delivering the opinion of the court, said: “ It is too well settled to be at all controverted, that courts of equity will not take jurisdiction of a case for the purpose of enforcing a forfeiture, but will leave a party who seeks to take advantage of one, to his remedy at law.” p. 233. In Lawe v. Hyde the same doctrine is announced and enforced. In that case the chief justice says: [363] “ Tbe complaint purports to be against Mr. Lawrence, the grantee of the respondent, the university, and the appellant, in equity, for reformation of the condition subsequent in the respondent’s deed, for forfeiture for condition broken, and for possession. Aside from' the statute of limitations, a proceeding in equity to enforce a forfeiture cannot be sustained.” The plaintiff in that case abandoned his equitable proceeding; the cause was argued by counsel at the bar as an action of ejectment for forfeiture for breach of the condition stated in the deed; and, upon stipulation, was considered and decided by the court as an action at law. But had the action been treated as one in equity, the difficulty first suggested by the chief justice would have been insurmountable. The objection seems equally decisive here. It is true, it was sought to prove by pai-ol that the appellants, in executing the deed absolute in form, did not intend to waive or abandon the condition on which the land was conveyed. But still we are unable to perceive how this fact could aid the jurisdiction of a court of equity in the matter; for, if it was competent to prove by parol that the absolute grant was qualified by the condition contained in the executory agreement, this proof could be made as well in a court of law as equity. In either forum the question, of course, would be, whether it could be shown by parol that the conditions in the previous contract were intended to be imported into the deed or coexisted with it. If, as is claimed by the appellants, these conditions did not merge in the deed, but remained in force after the conveyance was executed, and these facts conld be established by parol testimony, then it is very plain that the appellants had an ample remedy at law to recover the possession of the property as for forfeiture upon subsequent condition broken. Horner v. The C., M. & St. P. Railway Co., 38 Wis., 165. But equity will not enforce the forfeiture. On the trial, the court below found, from the evidence, that the seminary corporation had ceased to use the property for a [364] seminary, and had wholly abandoned it for that purpose, and had conveyed the property to the defendant the Evansville Boot dk Shoe Mamifacturing Company. This latter conveyance the circuit court set aside as void, and perpetually enjoined the Evansville Seminary from conveying away the property except for seminary purposes. This is as far as the judgment proceeded. Now the plaintiffs have appealed from so much of the judgment as grants the injunction, and which fails to adjudge that the seminary corporation had forfeited its right and title to the property, and that the title had reverted to them, and that they were entitled to the possession thereof. It is insisted that the court should, upon the case made or facts proposed to be shown, have adjudged the title of the property iu the plaintiffs. .But to grant this relief, the court would have had to enforce the forfeiture. For the reasons already stated, this it could not do. Indeed, in the view we have taken of the case, the whole judgment is indefensible, and would have to be reversed had it been appealed from. But we can only reverse so much of it as is before us for review, and remit the cause for such further proceedings as the parties may be advised to take. It is apparent that the whole judgment proceeds upon the ground that the action is one to enforce the trust. But this is not the purpose and scope of the suit. Whether the appellants, as donors of the Evansville Seminary, could maintain an action for the execution of the trust, and to annul the conveyance made by the seminary corporation to, the Boot óe Shoe Manufacturing Company, is a question not involved in this case, and of course not considered. All that it is necessary and proper to decide on this appeal is, that it would be a violation of the principles upon which courts of equity proceed, to grant the relief asked in the complaint, and to adjudge that in consequence of the wrongful acts of the seminary corporation, which are disclosed in the evidence: — its failure to use the property for seminary purposes and its attempt to con [365] vey it away, — its title in the property was forfeited, and snch title, with the right of possession, had reverted to the grantors. It follows from these views, that that part of the judgment of the circuit court appealed from must be reversed, and the cause remanded for further proceedings according to law. By the Court. '■— So ordered.