Douglas v. Union Mutual Life Ins.

Mr. Justice Scholfield delivered the opinion of the Court: The agreement between Douglas and Burroughs of the 10th of November, 1856, was intended by them as a change and amendment of their agreement of the 2d of April, 1856. Their agreement of the last named date was to remain in full force, except as changed and amended by their agreement of the first named date. They must therefore he read as if what is changed by the November agreement were stricken out of the April agreement, and the matters of the November agreement were substituted. So reading it, the latter clause of the agreement must stand as follows: “And then, on the completion of the building as aforesaid, the said party of the first part agrees, for himself, his heirs, administrators, executors and assigns, that he will execute and deliver to the board of trustees aforesaid, or their successors in office, a good and sufficient deed of conveyance, assuring to said board of trustees, or their successors in office, the title of the premises above described, free from incumbrance, for the sole and exclusive use of the university, inalienable for any other use or purpose, forever.” The agreement was not intended to be a conveyance, of itself, but simply the evidence of an obligation assumed by Douglas to convey in the future. It was wholly executory, and it is proved beyond all controversy that it was never complied with by the university. There never was a time when the university was entitled to demand, as of right, that Douglas execute any deed. But if there had been full performance of the agreement by the university, Douglas might, of his own voluntary munificence, do more than comply with his contract, and give the university an absolute instead of a qualified title. The university could not object, for it might as effectually then retain the property for a particular use as if compelled thereto by the terms of the deed, and no one but the university and Douglas had any interest in the question. It follows, then, that on the 30th of August, 1858, Douglas might make a deed restricted and qualified as by the November, 1856, contract; or he might if he chose to do so, make an absolute deed to the university. No one*had a right to object to either. He made an absolute deed. There was neither fraud, accident nor mistake affecting his action, and there is no pretense that he did not thoroughly comprehend the legal effect of what he did. In his deed he recites that he “has granted, bargained and sold, ” and does thereby “grant, bargain, sell and convey (the premises described) to the ‘board of trustees of the university of Chicago,’ and to their successors and assigns, * *' * together with all and singular the hereditaments and appurtenances thereunto belonging or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and all the estate, right, title, interest, claim and demand whatsoever of the said party of the first part, either in law or equity, of, in and to the above bargained premises, with the hereditaments and appurtenances, to have and to hold the said premises above bargained and described, with the appurtenances, unto the said party of the second part, their successors and assigns, forever.” Then follow covenants of seizin, of good right to convey, and against incumbrances, f “with the said party of the second part, their successors and assigns.” These are not mere idle words. They were deliberately used, and their legal effect is to convey as absolute and unqualified a title as it was possible for Douglas to convey to the university. This is the only conveyance made by Douglas to the university. The university could not have insisted it is to be read as being qualified by the previous agreement between Douglas and the university, because, not having performed its part of that agreement, the university could claim no rights under it; and the deed being a voluntary grant by Douglas, contained its own limitations, and therefore the university, in accepting it, accepted it as it was. But for the purpose of argument let it be assumed that this deed was made because of the obligation of Douglas under the agreement between himself and Burroughs; is it not clear that the deed is a satisfaction of his liability under the agreement, and conclusive as to the absolute character of the title held by the university ? It can not be said here, as it was said in Morris v. Whitcher, 20 N. Y. 41, cited by counsel for appellants, that the covenant to convey the title designated in the agreement is collateral, and therefore not satisfied by the deed, for there is no other covenant in the agreement to which it is possible that it can be collateral. It is itself the principal' covenant. By it alone is it pretended that Douglas was at any time under obligation to convey the property to the university. It is impossible that the university can at the same time have an absolute and yet only a restricted or conditional title to this property, and therefore either the prior agreement must control and modify the subsequent deed, or the subsequent deed must satisfy and discharge the prior agreement. It is not questioned by us that Douglas might have made the language of the agreement describe the title conveyed by the deed, either by making an express reference to it for that purpose in the. deed, or by exacting from the university, before the rights of third parties had intervened, the execution and delivery of a deed to him declaring that the title conveyed by his deed was accepted and held by the university on the terms stated in the agreement. But he did not do so. Nor did he, as would have been most natural had he so intended, use any language in the deed limiting or qualifying the title conveyed. The general rule is, that a written agreement for the execution of a deed is merged in the deed. Moser v. Miller, 1 Watts, 156; Harris v. Barker, 3 Johns. 506; Houghtailing v. Lewis, 10 id. 296; Brooks v. Mallbie, 4 Stewart & Porter, 96. There is nothing in the evidence in this record to make this case exceptional. Upon the contrary, the fact that immediately after the execution of the deed by Douglas the trustees put a loan of $25,000 on the market, and secured it by a deed of trust on the property it conveyed, which was executed by Douglas himself as president of the board of trustees, is conclusive that all parties then thought the character of the title of the university was fixed by the terms of the deed alone. It may be conceded that the evidence very clearly shows that it was desired by Douglas, and by the other members of the board of trustees, that this property should not pass from the university ; that the munificence of Douglas in making the grant was highly appreciated by the trustees, and that they were, in return, anxious that the university should become an honor to his memory. But this has no tendency to prove that language in a deed is not to be construed according to its well established meaning, or that a prior written agreement, not referred to in that deed or in any written instrument made contemporaneous with or subsequent to its execution, is to be held as qualifying and changing the title it conveys. The fair inference is, that Douglas trusted entirely to the trustees of the university to see that his wishes and expectations in this regard were not disappointed. And this does not rest in inference alone'. There is positive proof to that effect. Burroughs testified, among other things : “I conversed with Douglas concerning the conveyance. I told him I thought he had done a very wrong thing. I told him there was a contract between him and me, and this deed was in anticipation of that contract, and in violation, and my impression was it was fatal to the enterprise. A concern beginning to go in debt at that stage would be ruined. And Mr. Douglas said a good deal, trying to smooth me down, saying the better wray was to make no fuss about it, but let it go on; that he had confidence in the trustees; that it was a temporary expedient, and they could go on. So I was induced to keep quiet and let the thing go on.” And the resolution of the board of trustees authorizing the executive committee of the board to execute a bond to Douglas for the faithful “carrying out of the university enterprise according to the spirit of the original contract, ” is proof to the same effect. If the grant was on a condition subsequent, then no bond was needed, for the property could not be alienated. The resolution necessarily implies that the grant was absolute, and that Douglas, therefore, had no guaranty that the property would not be diverted from the purpose of the grant. The eighth section of the charter of the university has been cited as prohibiting the alienation of this property. It provides that “no gifts, grants or devises made to the university for a particular purpose, shall be applied to any other purpose,” etc. But even under the contention of appellants this >vas not a grant to the university for a particular purpose. The contract of November, 1856, was only that the title should remain in the university “for the purpose expressed in said agreement.” There is no “particular purpose expressed in said agreement.” The section, obviously, has reference only to donations to the university to aid in the accomplishment of a special object, as distinguished from aid to the university generally,—as, for instance, to endow a professorship in a particular branch of literature or science, purchase a library or designated scientific instruments, etc. But if the evidence here showed a grant upon a condition subsequent, the present bills could not be maintained, for no rule is better settled than that a court of equity will not lend its aid to enforce a forfeiture because of a breach of a condition subsequent in a deed. 2 Story’s Eq. Jur. sec. 1319; 4 Kent’s Com. (8th ed.) 134, *130; Freeman’s notes to Cross v. Carson, 44 Am. Dec, 757. And it will make no difference in such case that the aid of equity is sought upon the special ground of removing a cloud on the title. Memphis Railroad Co. v. Neighbors, 51 Miss. 412. If we are right in the preceding views, it is unnecessary to consider the capacity of the university to make a,mortgage, or whether the mortgage foreclosed was executed by the proper parties, for, in that event, those questions do not concern these appellants. If they have no standing to enforce a forfeiture on account of a breach of a condition subsequent, the decree below is right, since they make no showing that they are entitled to relief on any other ground. The decree is affirmed. Decree affirmed. Mr. Justice Bailey took no part in this decision.