Puffer v. Clark

Ostrander, C. J. (after stating the facts). Passing the question of the right of the trustees of the M. J. Clark Memorial Home to contest the granting of relief to the appealing defendants, I consider whether it is true, as is claimed, that this court is without jurisdiction to hear and determine the appeals because they were made too late. We have held that parties — at least when not prevented from appealing by the action or non-action of officers of the court — must perfect appeals within the time limited in the statute, see Perkins v. Perkins, 173 Mich. 690, and cases cited in the opinion, and that, failing to do this, the right to appeal is lost and cannot be restored by the court. These appellants moved, seasonably, for an extension of time for perfecting the appeals, and, within the statute period, the time was extended. It is clear there was — 194 — jurisdiction to do this. Whether the showing which was made was sufficient is another question, not open upon this record, since the order extending the time has not been vacated and no motion to vacate it has been made. And if the question was open, then, considering the objections and the showing which is made, I am of opinion that the Justice who granted the extension of time did so upon a proper showing. It is true that only the solicitors, for plaintiffs and the solicitors for appealing defendants, signed the stipulation which was the basis for the order, but the failure to secure signatures of solicitors for other defendants is explained. Mr. Walsh, who appeared as solicitor for certain defendants, is not objecting. Repeated extensions of time were secured from the circuit court upon stipulations signed by Mr. Ward and Swarthout & Master and Butterfield & Keeney. That these defendants proposed to appeal was apparently known to every one interested, and no claim is made that the case on appeal was not properly settled. This court and the Justices thereof must rely in such a matter upon the showing made and' must assume, when a stipulation is presented, that it is signed by proper counsel. If it turns out after the appeal is perfected, and after the time to perfect it has expired, that technically, some solicitor who did not do so ought to have signed, the stipulation presented with the application for an extension, the order extending the time will not for such a reason be vacated by the action of the court in a case where it does not appear that- the court was imposed upon or that some complaining interest has been harmed beyond the harm which a review of the proceedings may entail. It may be assumed, upon this record, that all solicitors of all parties would have joined in the stipulation if they had been requested to do so. It must be held that the appeals were seasonably taken. — 195 — It is said that appellants have no right to appeal. Considering only the right to appeal from the decree, and not what may be gained thereby, I am of opinion that the right exists as to all appellants, if for no other reason than the one that the decree is not supported by the bill of complaint and the relief granted is greater than and different from that prayed for in the bill. There was no reason why appellants should contest the matters, set up in the bill of complaint or contest the granting of the relief prayed for therein. There was on their part no objection to the substitution of a new trustee for the old one. See Covell v. Cole, 16 Mich. 223; McMahon v. Rooney, 93 Mich. 390; Miller v. Casey, 176 Mich. 221; Reynolds v. Stockton, 140 U. S. 254; Masterson v. Howard, 18 Wall. (U. S.) 99; Northern Trust Co. v. Albert Lea College, 68 Minn. 112; Monarch Brewing Co. v. Wolford, 179 Ill. 252. But, it is said, each of the appealing defendants, since the suit was begun, has executed and delivered to the trustees of the M. J. Clark Memorial Home a quitclaim deed of the Clark property and has thereby divested himself of all interest in the property. Although the execution and delivery of the quitclaim deeds are admitted, their force and effect are disputed. The bill was not amended by setting out the deeds, and no relief was prayed for based upon them. Kelly v. Kelly, 54 Mich. 30. Appellants say the fact is that the quitclaim deeds were executed upon their part to establish, so far as was possible, the validity of a trust attacked by some of the defendants — to release any claim the appellants might have in the property by reason of the invalidity of the claimed trust established by the original deed. „It now appears that the trustees of the M. J. Clark Memorial Home are not of one mind about seeking any advantage from the quitclaim deeds. Moreover, if the court considered — 196 — the effect of these deeds to be the putting an end to the so-called trust instead of validating it, the decree makes no mention of them. It does, however, construe the original deed in such manner as to put an end to the condition in the deed. It must be borne in mind, too, that the deed made by Melvin J. Clark, Jr., an infant, who appeals, is at least voidable. It follows, I think, that the admitted fact that the deeds were executed and delivered does not of itself conclude the right of one who made a deed to appeal from the decree. As to the appeal from the denial of a rehearing, three appellants, namely, Irving M. Clark, Leland J.» Clark, and Gertrude C. Partridge, are nonresidents, brought in by publication. As to them, the statute gives the right to be admitted upon petition to defend. See McDonald v. McDonald, 45 Mich. 44; Coffin v. Ontonagon Circuit Judge, 140 Mich. 420. It must be held that some of the appellants have the right to appeal from the order denying the rehearing, and the motion to dismiss the appeals must be denied. The court, as to defendants against whom the bill was taken as confessed, was in error in granting relief not within the scope of the bill. Measured by the bill, .the relief should have been limited to the substitution of trustees as prayed for, with the provision that the new trustee succeed to and take over all property pertaining to the M. J. Clark Memorial Home, including all endowment and other funds, and manage and control the same, and that it assume and perform all duties, obligations and contracts in that behalf assumed by, devolving upon, or made by, the former trustee. The statute under which the proposed new trustee was created itself supplies further directions. If it is assumed that the answer and cross-bill of certain defendants raised for decision the question of — 197 — the scope and effect of the original deed of the Clarks to plaintiffs — if it is assumed that the validity of the deed is attacked and that all parties to the suit were bound to take notice of the issue sought by the answer and cross-bill to be raised, the decree is still erroneous. In this behalf, counsel for appellees, the trustees of the M. J. Clark Memorial Home, say that if compelled to go to a hearing upon the merits they desire that further testimony be taken and they suggest that it be taken orally in this court. By “a hearing upon the merits” is meant, evidently, one in which the appellants seek to show that notwithstanding the execution of the quitclaim deeds the decree is erroneous. Some one representing plaintiffs procured the execution and delivery to the proposed new trustee of quitclaim deeds of the Clark property, .made by eleven of fifteen of the residuary legatees of Mr. Clark. There has been no determination of heirship. It is proposed to be proven in “a hearing upon the merits” that in September, 1918, the plaintiffs executed a quitclaim deed to the same grantee of the same property. It is insisted that in this way an interest in said real estate was created in the grantee in said deeds supporting the conclusion that the estate — the property — is alienable, in whole or in part. This I understand to mean that the condition in the deed has been released, or conveyed. Upon the other hand, appellants contend that the purpose in giving the quitclaim deeds was not to release the provision for reverter and that the quitclaim deeds do not, in law, release or assign the condition in the original deed. If the purpose or intention of the grantors in executing the quitclaim deeds in any manner controls the determination of this question, further testimony might be required. So, also, if the claimed benefit of the quitclaim deeds cannot be given or clearly denied upon the record as — 198 — made, there should be a further hearing with a right to amend the bill. If the intention of the grantors is immaterial, there is no occasion for taking further proofs. It will be observed that in the decree it is said that the condition in the deed— “is a conditional clause relating to a grant directly in line with the general purposes contemplated by complainants’ organization, and does not take away from the grantees in said deed, or their successors, the power of alienation; and that the trust sought to be created by the grantors in said deed is a charitable trust; and that such trust is fully expressed and clearly defined upon the face of the instrument creating it.” Following this is the judgment that the defendants —plaintiffs in the cross-bill — be denied relief. For any purpose here material, there is m> reason for saying that the deed executed by the Clarks created a trust. The conference has, and had, a trust fund, the charitable purpose of which is clear. The committee of the conference was trustee and the beneficiaries were the superannuated ministers and widows and children of deceased ministers. The people who contributed to this fund did not each of them create a trust, nor were they each of them, in any proper sense of the term, settlors of a trust. Their gifts augmented a specific trust fund. So the Clarks, knowing of this charitable trust, solicited by an agent of. the trustee, and desiring “to aid said parties of the second part in their work,” contributed to a trust already settled, with beneficiaries already designated, property to be used in a certain way, the gift being, 'as the trial court says, “a grant directly in line with the general purpose contemplated by complainants’ organization.” This does not deny that the property was thereafter and now is held in trust by the plaintiffs or by the substituted trustee. They conveyed, — 199 — however, a conditional or qualified fee, absolute until the condition is broken, and if broken the heirs of the grantor take by right of reverter. There is a possibility of reverter which denotes no estate,— “ ‘but as the name implies only the possibility to have the estate at a future time. Of such possibilities there are several kinds of which two are usually denominated by the term now under consideration: (1) The possibility that a common law fee may return to the grantor by breach of a condition subject to which it was granted; and (2) the possibility that a common law fee other than a fee simple may revert to the grantor by the natural termination of the fee.’ The possibility of reversion expectant on such an estate is left in the person who limits it and ‘in the meantime the whole estate is in the grantee or owner subject only to this possibility of reverter in the grantor. The grantee has an estate which may continue forever though there is a contingency which when it happens will determine the estate. This contingency cannot with propriety be called a condition. It is a part of the limitation and the estate may be termed a fee.’ ” Pond v. Douglass, 106 Me. 85, 89. See, also, North v. Graham, 235 Ill. 178; First Universalist Society v. Boland, 155 Mass. 171; Estes v. Muskegon County, etc., Park Ass’n, 181 Mich. 71; Delhi School Dist. v. Everett, 52 Mich. 314. Examine Blanchard v. Railroad Co., 31 Mich. 43; Thayer v. McGee, 20 Mich. 195. According to what seems the better reasoning, a possibility of reverter is not devisable, but passes to those who are heirs of the grantor at the time of the breach. It is not an estate, interest, or right in land, but a possibility of obtaining an estate in the future, and is therefore not devisable. It passes by right of representation and not by descent to the heirs at the time of the breach. Methodist Protestant Church v. Young, 130 N. C. 8; Upington v. Corrigan, 151 N. Y. 143. To the contrary is North v. Graham, supra, holding, upon the — 200 — Illinois statute, that the heirs at the time of the grantor’s death take the right of reverter. See the note to North v. Graham, 18 L. R. A. (N. S.) 624. It is inadvisable to determine the precise point now. There has been no breach of the condition by the grantee in the Clark deed. To devolve the title and management upon a new trustee will not breach the condition. It does not appear that there has been a release of it, or that the condition is not in force; and if it is in force, the decree adjudging the substituted grantee, or the conference, to have the right of alienation is erroneous. There is no testimony tending to prove that the conference, or the plaintiffs, desire to avoid any responsibility or to refuse or repudiate the grant as it was made. Nor is it proper that the court shall now advise them of the consequences if hereafter they shall deem it inadvisable to hold the property according to the terms, of the grant. The quitclaim deeds are in existence. The title to the land and the record thereof ought not to be clouded by them or doubt thrown upon the relation of the conference and the trustee to the property. Their force and effect are not considered except as herein expressly indicated. The decree below is reversed, and one will be entered in this court in accordance with the prayer of the bill. Bird, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.