Lackland v. Hadley

OPINION. I. BOND, J. (after stating the facts-as above). — It is perfectly clear that the only question on this appeal is the interest of Henry Shaw, and the proper enforcement thereof under the terms of his two deeds whereby the property including the outer rim or strip of 200 feet was vested in fee in the city for the purposes and upon the conditions expressed in the deeds. It cannot be. that Mr. Shaw by his will could devise any particle of the estate which he did not possess after his grant of the lands in question, nor could he transmit to his residuary devisees, the plaintiffs, any other remedy for the enforcement of the interests and rights retained by him than he had at the time of his death. With this in mind, the only thing left in this case is to determine from the language of the two instruments what interest or estate passed to the grantees, or was reserved to the grantor. The meaning of these words is not aided.or helped by the conclusion reached by — 560 — ■ this court when it conceded the power of the trustees to whom a great estate had been conveyed in furtherance of a different eharity described in the last will of Henry Shaw to vary the details of its administration, for that case (151 Mo. 210) presented only the question of the powrnr of the trustees who held a fee simple title for the sustention of a charity, to vary their administration from a method of substantial sale by a leasing with a covenant for perpetual renewal, to a sale outright to meet the necessities of a definitely created and established charity. This the court permitted them to do in order to prevent the frustration of the paramount purpose of the donor. Mr. Shaw, a childless and wifeless man, was a lover of flowers, and had devoted much of his life to their cultivation, and had laid out on his residence grounds a botanical garden and constructed a library and museum thereon. This and the remainder of his vast estate was devised by him to the trustees named in his will for the perpetual maintenance of a botanical garden, accessible to the public under the restrictions contained in his will. In its ruling upon the case then presented (151 Mo. 210), the court held that the title-holding trustees, who were directed in the will to. lease the real estate conveyed to them for a term of sixty years, with a covenant for perpetual renewal, were entitled, upon the impossibility of effecting such leases, to make an alienation of the property for the support of the eharity. That ruling merely gave the power to vary the method of administration of the trust, but not to alter the purposes or objects of the charity, nor to change its character as created by its founder. But in the instant case the plaintiffs are no.t asking to. be -allowed to sell any real estate conveyed to them on account of the impossibility of the performance of any duty with which they have been charged in respect to it, for this real estate was conveyed not to plaintiffs, but to another trustee, who, and not plaintiffs, was — 561 — charged in the deed .devoting it to a wholly different charity, with the duty to lease it for a particular purpose — ornamental to the park — and pay the rent realized in that mode only to a grantor of- whom the plaintiffs are merely the assignees. The plaintiffs in this case occupied no such status as they did in that case. There they desired to convey the fee vested in them, to subserve a charity which was richly endowed but hampered in the use of its property. Here, the defendant city is the trustee of a public charity wholly disconnected with the other, of which it is the conjoint founder with the donor of the land (for it made it a park by paying $360,000 to improve it and appropriates $25,000 annually for its maintenance) and since it has turned out that defendant cannot rent for a special purpose which would enable plaintiffs, as assignees, to secure the rent thus collected, they are seeking to cause defendants to sell the property and give them the total proceeds estimated at $816,000, if the fee is sold. In other words, in the case cited'plaintiffs sought to be granted, in the performance of their duties as trustees, the right to vary in the matter of administration, a trust of property to which they had title. Here they are seeking to obtain property to which another trustee holds the title, for another charity, although they admit such other trustee, holding the title for a definite charitable and public trust, has without fault been unable to find tenants for a special leasing required by its charitable appropriation and pay the rent to plaintiffs as assignees of the grantor, Henry Shaw. Here, plaintiffs seek to obtain a title .or its proceeds, which was not given to them. In the case cited they sought to dispose of an asset which belonged to them, and the full title to which was vested in them. It is evident that the decision in Lackland v. Walker, supra, bears no analogy to the case in hand and sheds no light on the meaning of the words contained in the two instruments — 562 — under, consideration. We, therefore, will look to the instruments themselves to ascertain their legal import. II. What Mr. Shaw and the city of St. Louis designed to do, under the authority of the State, was the establishment of a park for the common benefit of the public, a proper civic motive on the part of the city, and a philanthropic benefaction by Mr. Shaw. This is demonstrated by the fact that the precaution (though unnecessary) was taken to apply to the Legislature for an act establishing and naming the park, describing the lands to be conveyed, providing a board of control and management, authorizing the city to expend immediately and subsequently the sums mentioned in the act, exempting the entire property from any burdens of taxation, and providing further that “it shall be held in fee by the city.” In pursuance of this act Mr. Shaw executed his deed of indenture to the city, conveying to it the lands by the same description contained in the enabling act, and imposed, among others, a condition that 200 feet in width on the outer portion of said lands should be leased by the city in specified lots, on terms of' thirty years before renewal, for the purpose of villa residences, and the- city should pay over the rents for such leasing “forever to Henry Shaw and his heirs, executors, administrators and assigns.” The indenture then provides that if any of said conditions are broken in the lifetime of Shaw “the said property and all its improvements thereon shall at once revert to said Shaw and absolutely vest in him in fee as if the conveyance had not been made;” but if violated after his death then a similar reverter should take place to an appointee of Shaw for the use of the Botanical Garden, or to it if then incorporated. It is not necessary to consider any pf the other conditions upon which the fee was vested in the city, except the ones above quoted relating to the leasing of the strip by the board of commissioners, for all the others have been fully — 563 — performed. The one in question moreover has been expressly and specially restricted by the deed poll made by Mr. Shaw three years after the execution of his indenture with the city to a “willful violation” by the city or said commissioners of the requirement to lease said strip for villa residences and pay the rents to' him or whomsoever he may appoint. The grantor in said deed also expressly reserved the right to enforce that condition as to leasing by mandamus or other appropriate remedy. This partial waiver and modification of the conditions in question by Mr. Shaw is an absolute estoppel by deed as against him or his assigns, the plaintiffs. Such was the purpose and effect of his confirmatory deed. It was executed to relax the stringency of the condition of forfeiture which had been inserted in the prior deed of indenture between the city and Mr. Shaw. It was clearly out of the power of . Mr. Shaw by his subsequent confirmatory deed, nor did he attempt so to do, to alter the title which the city got under the prior deed. He might and did modify his .right to invoke a breach of the condition of his former deed, but he could not change the character of the title previously vested in the city. What then was the title under the first conveyance ? That instrument by its terms and as the sequence of the enabling act, shows that it was framed to perpetuate a public charity in the form of a designated park. This was the primary and paramount purpose of Henry Shaw, to achieve which he gave the State Legislature the exact boundary of the land which he intended to donate, and obtained authority from it for the city to take such lands and provide at its expense for their improvement and maintenance, and to hold them in fee simple title and free from any form of taxation for the-charitable purposes described. As the giver of the soil for park purposes Mr. Shaw felt entitled to have a voice in its control and management. This he secured by a life membership on its board of commissioners, — 564 — and the appointment by himself of all other members. He desired to impress his personal views in the improvement of a part of the land — its outer border of 200 feet. This he designed to be an ornament to the park by being made the site of villa residences. He required the board of commissioners, composed of himself and his appointees, to make leases for such edifices at thirty years before renewal, and provided that the rents thus derived shóuld be paid to himself or his assigns. His controlling object was the establishment of the park, whose government was retained in his hands. He believed that a most artistic effect would be added to the general plan of the park if it should have a border of picturesque residences with “passageways through leading to the inner park grounds.” His idea was that this would enhance the beauty of the approaches to the park which he evidently beheld with the “prophetic eye of taste” as a scene of driveways, walks, fountains, rare forestry, temples, pools, grass plots, playgrounds, all encircled with embowered villas and winding entrances. The thought dominating his mind was the effect of a colorful and exquisite border as an adjunct to that park, to establish which he had invoked the power of the State and the financial aid of the city and its services as the holder of the title in fee of the land donated to this great public charity. From a reading of the act and the deeds under which this charity was created, it cannot be imagined that Mr. Shaw had any other motive in reserving to himself and his assigns the rent for the villas than to dispose of an incidental revenue derived from an ornamentation of a part of the grounds which he conveyed to the trustee for the public park. He was not concerned about adding to his private fortune. He was a philantropist, not a miser. What engrossed his. mind was the project of beautifying the park by entrances to its inner drives and courses through a picturesque setting in harmony with the flowers and for — 565 — estry within. lie designed the park and its surround ings to present the view of a single landscape. Had he desired money out of this property he would not have conveyed it to the trustees of the park, but would have reserved it to himself to be devoted to trade or utilitarian uses. That he parted with the titles to carry out his purpose to make this strip an cvmiliary to the park is also shown by his conduct. For over twenty years he managed and ruled the park through its board. During that period he never sought in any way to disturb the conveyances which he made to this land, though he knew no leasing had been made of it and no rents paid over to him, for the duty to do. this was cast upon himself. To put the matter at rest he expressly covenanted that no forfeiture should arise as to this condition except for “willful violation.” To our minds it is patently plain that the first and fundmental purpose of Henry Shaw was the creation of a park; that in pursuance of that controlling object he desired to improve the outer rim of the lands deeded to the park in a particular suggested by his own taste, and which he thought would embellish the park. His charity in this instance was the park. His method of furthering it by an ornamental border was a mere suggestion of his own fancy, which if impossible of accomplishment he did not intend to be used as an instrument to despoil a beneficent public charity of which he was a co-founder, and which expressed his primary purposes. III. The language of his deed of gift conditioning the continuance of the estate upon a future compliance with certain conditions* including the one as to leasing this strip, brings that requirement directly within the definition of a condition subsequent. .Such a condition if it has any effect, defeats a vested estate. The rule for determining a condition subsequent is thus ex — 566 — pressed by a standard authority: “If the act or condition required does not necessarily precede the vesting' of the estate, but may accompany or follow it, and if the act may as well be done after as before the vesting of the estate, or if from the nature of the act to be performed, and the time require'd for its performance, it is evidently the intention of the parties that the es-. tate shall vest, and the grantee perform the act after taking possession, then the condition is subsequent.” [2 Washburn on Real Property (6 Ed.), sec. 941, p. 7.] The habendum clause of the indenture referring to this and ether conditions is, to-wit: “To have and to hold'the same unto the said city of St. Louis in absolute property in fee so long as the said city shall conform and comply with the following conditions annexed to said grant, to-wit. ’ ’ If anything could add to the certainty and definiteness of the foreg*oing language, it is comprised in the following provision of the deed with reference to the breach of any of the conditions upon which the property was conveyed, to-wit: “It is hereby expressly provided and this conveyance is-made upon the express condition that if said conditions upon which said conveyance is made or any of them shall be violated in the lifetime of said Henry Shaw, the said property and all improvements thereon shall at once revert to said Shaw, and absolutely vest in him in fee'as if the conveyance had not been made and if said conditions or any of them shall be violated after the death of said Shaw, then the said estate hereby conveyed and all improvements therein shall go to and be vested in whomsoever said Shaw may appoint for the use of the Missouri Botanical Garden or directly in said Garden whenever the said is incorporated as authorized by law.” * The foregoing clauses of the deed show that the estate was fully vested when the deed was made, and provide that it shall remain vested “so long’’ as certain conditions of a nature which could not be per — 567 — formed until after the vesting of the estate is observed. It further provides for a future reverter of the property. This language of the deed contains every element necessary to create a condition subsequent, and cannot be distinguished therefrom under the definition above-quoted. While legal exactitude postulates that the condition as to the leasing of the strip is simply a condition subsequent, and, therefore, neither Henry Shaw nor his heirs could take advantage, except by a re-entry or equivalent acts, for a breach, yet plaintiffs would be in no better position if we were able to construe the deed to have simply created a covenant to pay rent received for a specified renting, to Mr. Shaw, which was assigned to them.- The reason is that if the requirement as to paying the rent received for villa residences is not á condition of the continuance of the estate in the grantee, then it cannot trench upon that estate and the present action is wholly misconceived. This suit is necessarily predicated upon the theory that the title to the strip sought to be sold is in equity vested in the plaintiffs, who are asking for the proceeds of its sale. But no-title whatever could accrue to plaintiffs if the clause in question was simply a collateral covenant or obligation assumed on the part of the city. For on that hypothesis, its nonperformance could not affect the title conveyed, but would simply furnish a basis for an action for damages at law. A covenant to pay rent to Mr. Shaw or his assigns for a specified use of the property, whether observed or not observed, could have no relation whatever to the title conveyed for charitable purposes. It might involve a question of liability, but it could not in the nature of things, disturb the title vested in the trustee, nor defeat the charitable purpose for which it was granted and held for the trustee. Taking either of the horns of the dilemma that the language under review, of the donating deed, created either a condition subsequent (which we think it did) or that it created only an obligation, on the title holder (the — 568 — city) to pay the rent which it might receive from this prescribed method of leasing, and the result is, equally inescapable that plaintiffs are not entitled to enforce either the condition or the covenant, since there has been no willful refusal either to lease the property or to pay the rent, and that is the test which Mr. Shaw fixed as the standard of obligation on the part of the city. Our conclusion is that whether the provision as to leasing this strip was a condition subsequent or a mere covenant or agreement on the part of the trastee, in either event no redress can be granted in the present action, it not being claimed that defendants have “willfully” refrained from renting the property for villa purposes and paying over its proceeds, and that being the only ground on which plaintiff' would have a shadow of right to sue defendants either at law or in equity. IY. The error which runs through all. the contentions of appellants is that they seemingly overlook the real nature of their relations to the property which they seek to sell or sequester. When their assignor, Mr. Shaw, reserved a' right in himself and his assigns to the incidental earnings of a part of the land donated by him to the trustee'for a public park,-he did not thereby detract one whit from the title which he had vested in the trustee for the public charity. He merely said to this trustee in effect: “Make a part of the property held by you for the public park an ornamental inclosure, with inlets and outlets to the recreation grounds of the park. Whatever rent yon collect by following my directions as to the improvements of this beautifying border, you will pay to me or my assigns.” In so stating in substance, Mr. Shaw would be addressing himself, for he was the head and the selector of the executive board of the park, and charged with the duty of its entire government, and specially charged with — 569 — the duty as to making such leases of the ornamental rim of the land given by him to the park. He did not during his whole life, perform that requirement. And, as has been shown, three years after assuming the management of the park, by his solemn deed he released the city as trustee of the land, from any obligation arising out of this clause of his deed, except a “willful” refusal, and reserved to himself only the right to resort tó mandamus or other appropriate remedy to enforce action as to the leasing, if he so desired: Upon his death, appellants as his assignees became entitled only to' enforce this requirement in the method- to which he had restricted it, and by the means which he had fixed in his lifetime. The misconception of appellants .is as to the nature of the interest transmitted to them. It was at most a mere succession to the rights of contract which existed between the city and Mr. Shaw under the two deeds executed by him. The rights thus devolved by Mr. Shaw were not greater by being assigned to the appellants, than if he had given them to a faithful servant or a personal friend. The fortuitous fact that appellants happened to he the trustees of the title to the bulk of Mr. Shaw’s estate for the use of another charity prompted by his aesthetic nature and disposition, gave them no higher right as assignee of. the asset sought to he reached in this suit, than any individual would have had to whom Mr. Shaw might have made a similar assignment. If Mr. Shaw in his lifetime had filed a petition seeking, as in this case, to forfeit the title in the city and to sell this part of the land which had been contributed by him to this public park, and on the faith of which the State exempted every portion of it from taxation, and the city expended up to the present time about a million and half dollars in development and in maintenance, would he not have assumed in so doing an attitude beyond the scope of any equitable relief, in view of the terms of his grant and its acceptance, and his oiun conduct in refraining from mak — 570 — ing any such leases or attempting to make any, conplecl with a statement in such a petition that it was impossible to make them? We think the question answers itself, and that it cannot be seriously urged that a court of equity would, upon such a showing, virtually decree a forfeiture of the title to a part of the land conveyed by him in carrying out his object of creating a public charity for the common benefit of the people of the city, and at such costs to them. In a suit in equity brought to recover title to property conveyed on condition to support the grantor, which was not complied with during the lifetime of the grantee, this court said: “The answer to this is, that a court of equity never lends its aid to enforce forfeiture under any circumstances (Livingston v. Tompkins, 4 Johns. Chan. 415); and as we cannot consider this a proceeding at law to recover the possession of the land upon the legal title that would have reverted to the plaintiff upon an entry for the breach of the condition, the judgment must be reversed and the petition dismissed. ’ ’ [Messersmith v. Messersmith, 22 Mo. l. c. 372.] That doctrine has never been departed from in this State (Sease v. Cleveland Foundry Co., 141 Mo. l. c. 496; Moberly v. Trenton, 181 Mo. l. c. 646; 1 Pomeroy’s Equity [2 Ed.], secs. 459, 460; 2 Story’s Equity [13 Ed.], p. 652), and furnishes the correct solution of the question raised on .this appeal. For however disguised, whether by terming the claim made by appellants a covenant or reservation in trust, it necessarily means one and the same thing, that they are seeking to cancel the conveyances of their assignor of the fee simple title to the property in question subject to charitable uses, in order to obtain for themselves the “net proceeds” of the sale of the property by “authority” of a decree of this court. To that relief they are not entitled, either under the pleadings or evidence conT tained in this record, nor would their petition have survived a general demurrer. — 571 — V. Before disposing of this appeal we will consider the cases cited by appellants. Clarke v. Inhabitants of the Town of Brookfield, 81 Mo. l. c. 509, cited in appellants’ brief, simply reaffirms the rule that an illegal condition or one made impossible by inevitable accident, or by the act of the grantor, will be held void, and no reverter of the estate of the grantee can take place for the nonperformance of valid conditions. That doctrine cannot be invoked by appellants for two reasons: First, none of the conditions of this deed have been violated, there being no willful default by defendants; secondly, equity may for good reasons relieve against forfeitures, it does not enforce them. Moreover, if there was a failure for'twenty-one years to comply with this requirement,it 'w&s-caused by the nonaetion of the grantor in the deed himself. In Studdard v. Wells, 120 Mo. 25, Judge Black, speaking for the court, correctly held that when the language of a deed relied upon to create a condition subsequent did not in express terms or by clear implication show the intention of the parties to create such a condition, it would be held to be only a- covenant between the parties, the reason given by him being that otherwise a vested estate would be defeated, which was against the policy of the law if it could be avoided by • any reasonable construction of the terms of the grant. That case is conclusive against the right of appellants to recover in this suit for it distinctly shows that the reason the courts are adverse, to upholding a condition subsequent is that it will have the effect, if upheld, of divesting the title of a grantee, whereas ■ a covenant does not. If, therefore, by any stretch of construction (which we do not concede) the clause of the deed relating to the payment to Shaw, or his assigns, of rents collected on villa leasings could be held to be only a contract obligation, or anything else less than a condition subsequent, it would for that very reason — 572 — have no effect upon the title of the grantee in the deed, which would he wholly undisturbed either by its performance or nonperformance, and áppellants would be relegated to another action if they could show any breach of such covenant. And this is precisely what was done in a suit broug'ht to forfeit the title of a grantee and annul the deed to him for an alleged breach of covenant which it was claimed was the cause of the deed. After reviewing the eases and pointing out the distinction arguendo between conditions subsequent, which would uproot a vested title, and covenants or other obligations between the parties, which would not have that effect, it was ruled that the deed then before the court disclosed that the clause relied upon to defeat it was merely a covenant. Wherefore, this court dismissed the suit in equity for the reason that it whs not the proper forum for the recovery of damages for the nonperformance of a covenant and that a breach of a mere covenant, even if it went to the whole deed, did not annul it. [Haydon v. Railroad, 222 Mo. l. c. 145.] Th'at no suit can be maintained in equity to set aside a deed for breaches of an independent covenant for which it was given, is the settled law, and was also ruled in Anderson v. Gaines, 156 Mo. l. c. 670, 671. Under these authorities, appellants have no standing in a court of equity under the allegations of their _ pleadings, and the evidence adduced on the trial. Whether any ground for mandamus, or other appropriate remedy reserved by the grantor, exists now or may arise hereafter in favor of appellants as his assigns, does not appear in the present case, and will not be prejudged by our conclusion herein, which is that the judgment of the circuit court is too broad in its terms in that it should not have passed on any issue in the present action which might .have arisen in other proceedings. It will, therefore, be reversed and the cause remanded with directions to dismiss appellants’ peti — 573 — tion. All concur; Graves, J., in separate opinion in which all concur except Walker and Woodson, JJ., who dissent in a separate opinion, by Walker, J.