Board of Trustees v. Oregon Consistory No. 1

HARRIS, J. 1. It will be observed that the deed from Macleay to Bishop Morris is a conveyance to the latter “and to his successors in office in trust and their assigns forever.” This conveyance was not the — 627 — consummation of a gift, but it was a purchase. The moneys with which the purchase was made were the moneys of the church. The conveyance was not made upon any express condition, nor with any specified limitation. The grantor did not attempt to reserve to himself, any right whatsoever. The conveyance from Macleay divested him and his heirs of all interest in the property. The fee-simple title was conveyed to Bishop Morris “in trust”; and it is conceded that the church was the beneficiary. The conveyance from Macleay is devoid of the slightest suggestion of any attempt to fetter the land with a restriction obliging Bishop Morris, as trustee, perpetually to occupy the land for any specified use; and hence it may -be said that after the delivery of the Macleay deed the church as the beneficial owner could, for aught that appears in the deed standing alone, have caused the land to be leased or mortgaged or sold the same as it could have leased or mortgaged or sold or otherwise disposed of any other land owned by the church. The controversy between the parties arises out of the habendum clause appearing in the deed from Bishop Morris to the five persons appointed to serve as the Board of School Trustees, and in the conveyance from those five persons, constituting a board called the Board of School Trustees, to the corporation known as the Board of School Trustees. Attention has been directed to the recitals contained in the deed executed by Bishop Morris. One recital declares that Macleay conveyed to Bishop Morris “in trust,” and another recital asserts that Bishop Morris accepted the conveyance and held the property “in trust for the use and benefit of St. Helen’s Hall.” These recitals are in perfect agreement with the construe — 628 — tion which, we have placed upon the deed from Macleay. By the recitals written in the deed signed by Bishop Morris, he and those in privity with him are estopped from denying that he possessed an estate more restricted than the one recited: Bayley v. McCoy, 8 Or. 262. See also 39 Cyc. 226. The conveyance from Bishop Morris was authorized by the resolution adopted June 28, 1890. That resolution on its face in express terms declares that the persons to whom the conveyance shall be made shall have power to “expend and dispose of” the property; and the same resolution empowers the same five persons to organize a corporation with power, among other things, to “expend and dispose of” the property. The church convention passed the resolution on the assumption that it had the right to empower Bishop Morris, the trustee, to expend and dispose of the land for the use and benefit of the school for girls, known as St. Helen’s Hall. The church convention did have that right. The five persons accepted the trust defined by the resolution and agreed to take, hold, possess, manage, expend and dispose of the property “for the use and benefit of the aforesaid school for girls, known as St. Helen’s Hall.” . The grant of power to “dispose of” accompanied, as it is with a grant of power to “manage” and “expend” is a grant of power to sell: 2 Words and Phrases (2 Series), 81. Bishop'Morris was simply a trustee, and, even though it be assumed that he intended to convey the property to the five persons upon a trust more restricted than that contemplated by the church or than that originally imposed upon him, he could not have done so. If the church intended by. its resolution to authorize and direct the conveyance of the land to the five persons with — 629 — power to expend or dispose of it, and the resolution in plain language declared that such was the intention, then Bishop Morris as trustee could not have prevented the carrying out of that intention by prescribing other and different restrictions upon the estate conveyed to the five persons: Dickerson’s Appeal, 115 Pa. St. 198 (8 Atl. 64, 2 Am. St. Rep. 547); 26 R. C. L. 1207; 39 Cyc. 92. Moreover, the language of the habendum clause, when read in the light of the recitals and the resolution, does not necessarily and inevitably mean that the deed from Bishop Morris imposed a trust requiring the land perpetually to be occupied as a school for girls. It is not necessary to attempt to decide what construction should be placed upon the words in the habendum clause if they stood alone; for the language of the habendum clause, when read in the light of the recitals and resolution, may be so construed as to be in harmony with the construction which we have placed upon the Macleay deed and the resolution passed by the church convention on June. 28, 1890. Furthermore, it must not be forgotten that the church in convention assembled elected seven persons as a Board of Trustees of St. Helen’s Hall, and that “pursuant to a resolution duly passed” by the convention those seven persons formed the Board of Trustees of St. Helen’s Hall, a corporation, to take, hold, possess, manage, expend and dispose of the land “in trust for the use, benefit and maintenance” of St. Helen’s Hall. The land was conveyed to the last-named corporation which, pursuant to the resolution, had been formed with power to “expend and dispose of” the land. The plaintiff is of course a mere trustee, and under the terms of the trust it is — 630 — obliged to use the proceeds of the sale for the use, benefit and maintenance of St. Helen’s Hall. The Macleay deed does not require the perpetual occupancy of block 3 in Johnson’s Addition for a school. The resolution appointing the five persons as a board to be known as the Board of School Trustees does not require the perpetual occupancy of the land for a school. The resolution by which the seven persons were elected as the Board of Trustees of St. Helen’s Hall, and pursuant to which the plaintiff corporation was formed, does not require the perpetual occupancy of the land for a school. Upon the contrary every resolution passed by the convention defining the power of the trustee uses the language “expend and dispose of” the land, for the use and benefit of the school. Regardless of the construction placed upon the habendum clause in the deed from Bishop Morris and in the deed executed by his immediate grantees, the authority given by the church, the beneficiary and real owner of the land, enabled the plaintiff to pass a good title to the defendant, since as we have already pointed out the Macleay deed did not attempt to restrict the use of the land and the trustee could not.alone add qualifications to the trust. We understand that the “express assent of the Diocesan Convention to the making of this sale, * * has been given”; and hence it is not necessary to ascertain what the result might be if such/ assent had not been given. The land was purchased with church funds, and presumably it was purchased “for the use and benefit of St. Helen’s Hall.” It can be sold “for the use and benefit of St. Helen’s Hall.” The plaintiff has made a contract to sell the land “for the use and benefit of — 631 — St. Helen’s Hall.” The plaintiff can pass a good title to the defendant; and consequently the contract is enforceable. The decree is affirmed. Affirmed.