German Evangelical Protestant Congregation of the Church of the Holy Ghost v. Schreiber

BOND, J. This is a second appeal, the suit originating in the St. Louis Circuit Court in July, 1910, to quiet title in plaintiffs to certain described land commonly designated as the “Old Picker’s Cemetery.” In 1864, Johan Schreiber, together with his wife, Agnesa, conveyed this land, for a consideration of $1800, to A. C. Cordes and seven other specified trustees, to the use and benefit of the Herman Evangelical Protestant Congregation of the Church of the Holy Ghost. The land was laid out and platted as a cemetery and lots therein sold by the Congregation to purchasers, who received certificates showing an equitable but not a legal title. In 1865 certain lot-owners and their associates and successors, by a special act of the Legislature, were granted a charter of incorporation under the name of the Evangelical Protestant Cemetery of the Holy Ghost Association, and thereafter, on , March 12, 1884, the German Evangelical Protestant Congregation of the [123] Church of the Holy Ghost was also incorporated, but no formal deed to the land in controversy was ever made to either of these corporations by the trustees to whom Johan Sehreiber conveyed the land. The chnrch corporation thus formed continued to use the land as a cemetery until 1903, when, by ordinance, the City of St. Louis withdrew it from the list of cemeteries in which interments would be “recognized and authorized as legal,” for the reason that it had become unsuitable for use as a cemetery, owing, to the fact that a business and residence section of the city had grown up around it. Accordingly disinter-ments and removals were rapidly made by the relatives of decedents. Thereafter, in order that it might sell this land and purchase a more suitable site for a cemetery, the church corporation, together with the cemetery corporation, instituted this suit against Johan Sehreiber and hip heirs and the heirs of Albrecht C. Cordes, deceased,, the last surviving trustee named in the Sehreiber deed, and prayed for a quieting of the title in fee simple in said plaintiffs. The Sehreiber deed contained the following clause, on which appellants base their claim of title by reversion: ' “To have and to hold unto the said parties of the second part and unto their successors in office in trust for the benefit of their said congregation for the purpose and uses of a graveyard, burying-ground or cemetery, forever and for no other purpose, foreign or adverse to the one mentioned whatsoever.” The deed from the Congregation to each lot-owner recited that it was “subject to the conditions and restrictions contained in the deed from said Sehreiber to the Congregation.” On the first appeal this court reversed and remanded the judgment in favor of the plaintiff church corporation, in order that evidence might be adduced that the congregation authorized the incorporation of [124] the church and intended to and did part with its property to the corporation thus formed. [187 S. W. 845, Woodson, J., dissenting.] At the second trial the incorporation of the religious society on March 6, 1884, was shown and, also, that said religious body, on May 19, 1884, recognized its incorporation and, in writing, accepted its charter. (This written acceptance was excluded by’the trial court). Also the resolution adopted by the Congregation on January 8, 1917, was introduced, setting forth the various acts of the Congregation since its organization in 1834, its incorporation and customs, and, among other things, reciting “that the Corporation now also has outstanding a contract with Richard C. Spackler for the sale and conveyance to him of the cemetery properties of the Congregation; that this contract was authorized to be made for the Congregation as a corporation by the members thereof and that it is their desire that by the pending suit against the Schreiber heirs the Corporation’s title to this south half of the cemetery property is made perfect.” The court found the issues in favor of the plaintiff, the German Evangelical Protestant Congregation of the Church of the Holy Ghost, and ordered a .decree entered of record vesting the fee-simple title to the land in controversy in said church corporation, free and clear from any trust, and dismissed the defendants’ cross-bill. From this decree none of the defendants except the Schreiber heirs appealed. I. ‘ The only question presented by the appeal in this case is whether or not the appellant, the Schreiber heirs, have been aggrieved by the decree rendered in the circuit court, since that judgment is assented to and acquiesced in by all other parties to the record. [125] Condition Subsequent. [124] The theory of appellants is that the deed of their ancestor to the property in question (a certain portion of the Old Picker Cemetery) contained a condition [125] subsequent by the non-compliance with which the land conveyed has reverted to them. This ,. . „ , . , » . question is one ot. law under the terms oi the deed taken in connection with the undisputed facts. The latter may be briefly referred to in order to show the circumstances under which the deed was executed. The grantor in the deed had purchased the land in question a few months prior to his conveyance thereof for $1900. He sold it to seven individuals in trust for an unincorporated religious association for $1800, receiving a part of the purchase money in cash and taking a mortgage back from the trustees to secure the balance. The debt thus secured was paid before its maturity. The deed of bargain and sale to said trustees purported to convey a fee simple, unless defeasible under the condition above quoted. These trustees, under the terms of the deed, took a dry, legal title, coupled with no active duties. The deed in express terms provided that the-equitable owners of the land, the religious association, should use it for a ‘ ‘ graveyard, burying ground or cemetery and for no other purpose foreign or adverse to the one mentioned whatsoever.” The deed further provided for a plat and plan of the intended cemetery by the religious association,' and that the sale of the burying lots should be made by 'a committee appointed by said religious association, from time to time, styled the ‘ ‘ Cemetery Committee, ’ ’ by the method of executing certificates in the name of the congregation to the respective purchasers of such lots, such cemetery committee being restricted in making sales to the powers given them by the “private records of said congregation and to this deed;” and that such certificates should carry only an equitable and not a legal title to the purchaser. The deed in question contained no provision for a reversion or for any right of reentry upon the land therein conveyed in favor of the grantors (Sehreiber and wife) or their heirs. [126] It is well to note that in suits under Section 2535, Revised Statutes 1909, the court before whom an action to quiet title is pending, is empowered “to ascertain and determine the estate, title and interest of said parties, respectively, in such real estate, and to define and adjudge by its judgment or decree the title, estate and interest of the parties severally in and to such real property.” In speaking of the meaning of this statute this court said: “It has been again and again ruled by this court that the object of this statute (as expressly said in it) is to ascertain and define ‘respective titles’ and to adjudge or decree the ‘several’ estates of the parties between themselves. Whichever of the parties has the better title, is entitled to have it quieted against his adversary. It is not essential that either plainiff or defendant should possess the highest form of ownership, in land, such as would warrant a judgment investing him with a fee simple title good against the world. It is sufficient if one of the parties proves title and ownership superior to that of the opposite party. When this is done the owner of the better title has the right to a judgment or decree establishing it as against the opposite party and quieting it from further attack by him. [Maynor v. Land & Timber Co., 236 Mo. l. c. 728; Gage v. Cantwell, 191 Mo. 698; Graton v. Land & Lumber Co., 189 Mo. 322.]”—Toler v. Edwards, 249 Mo. l. c. 161, 162. See, also, Felker v. Breece, 226 Mo. l. c. 332. Therefore, as stated, the only question that can arise under the present appeal is whether the judgment of the lower court has deprived the Sehreiber heirs of any interest and estate in the lands reserved to them by the terms of the deed executed by their ancestor to the trustees named therein for the benefit of the unincorporated religious association; for if the language of that deed left no reversion or' right of re-entry in favor of them in any event, then they could not have [127] been aggrieved by tbe decree of the trial court vesting the title in the church corporation which was subsequently formed by the religious association named in the deed. As to all persons not appealing' from that judgment, its findings are absolutely conclusive. Hence, in the determination of the rights of the Schrieber heirs, it is wholly unnecessary to review the correctness of the judgment of the trial court as to the other parties in interest; i. e., the heirs of the original trustees to whom the property was conveyed, the corporation which succeeded the voluntary religious association, and the corporation legislatively granted to the cemetery committee. Assuming for the argument only, that the pleadings of the Sehreiber heirs amounted to an assertion of their right to a reversion under the terms of the deed in question, equivalent to a re-entry (Lackland v. Hadley, 260 Mo. l. c. 567; Bredell v. College, 242 Mo. l. c. 337; Hoke v. Central Twp. Farmers’ Club, 194 Mo. l. c. 586), it only remains to determine whether, in the circumstances of this case and under the language of that instrument, there has been a breach of the condition subsequent contained in the deed which woitld enure to the benefit of the Schreiber heirs. The law governing the rights flowing from breaches of conditions subsequent, as well as that controlling the creation of such methods of defeating a conveyance, is well settled in this State and has been formulated in accordance with our adjudications, to-wit: “While a condition subsequent may be inserted in a conveyance of lands in fee without using express terms of reverter upon the breach of such condition, if the deed in its entirety and the circumstances attending its execution, demonstrate that the object of the grantors was to cause a reversion of the estate upon the subsequent happening of a. lawful condition; yet no such conclusion will be drawn if it may be avoided by any other reasonable construction of the language of [128] the deed. This is the settled policy of the law. The reason of which is, that estates once vested in fee onght not to he nprooted, except npon proof of the happening of a lawful condition attached to the continuance of the estate by the terms of the deed, and further proof that if was the intention of the grantor in making the conveyance that it should revert when this condition ceased to exist. [Morrill v. Railroad, 96 Mo. 174; Krueger v. Railroad, 185 Mo. 227; Roberts v. Crume, 173 Mo. l. c. 581; Ellis v. Kyger, 90 Mo. 600; Studdard v. Wells, 120 Mo. 25; Messersmith v. Messersmith, 22 Mo. 369; Moore v. Wingate, 53 Mo. 398; O’Brien v. Wagner, 94 Mo. 93; Haydon v. Railroad, 222 Mo. l. c. 139; Lackland v. Hadley, 260 Mo. 539.]”—Catron v. Scarritt College, 264 Mo. l. c. 723. In determining whether non-compliance with the condition subsequent inserted in the deed would cause a reversion upon re-entry or equivalent acts by the heirs i of the grantor, we must consider the intent of the parties, as ascertained from a consideration of the instrument as an entirety, the circumstances of its execution, and the facts causing the violation of the condition subsequent; and if from all or any of these sources of inquiry, it should be patent that there was no intention by the parties to the deed that the land should revert to the grantor or his heirs, or if it should appear that the performance of the condition subsequent was illegal or impossible (Clarke v. Brookfield, 81 Mo. l. c. 509; Morgan v. Cox, 22 Mo. l. c. 373; Scovill v. McMahon, 62 Conn. 371; Ricketts v. Railroad, 91 Ky. 221; Taylor v. Sutton, 15 Ga. 103; Ordway v. Farrow, 79 Vt. 192; 8 R. C. L. 1107, sec. 167), then the breach of the condition subsequent did not enure to the benefit of the Schreiber heirs; for uuon either hypothesis they could have no interest whatever in the land conveyed. [129] Conveyance for Cemetery Uses. [128] II. When the deed in question was made, the grantor sold a piece of land for $1800 which he had ac [129] quired only six months before for $1000. Except as to the condition subsequent therein, the deed was one conveying a fee simple absolute. The. grantor did not insert any words providing for a reversion to himself or heirs. In circumstances somewhat similar, where land was conveyed to the City of St. Louis to be used as a public market, it was held that an abandonment of that use did not cause a reversion. [Hand v. St. Louis, 158 Mo. l. c. 209.] It does not appear in that case that any consideration whatever was paid for the conveyance to the .City of St. Louis. For a much stronger reason the rule therein announced should be applied in the present case, where the consideration paid was the full value of the land at the time of its conveyance by Schreiber and wife; indeed, was nearly twice what he paid for it only six months previously. In these circumstances it would be quite unreasonable to impute to both parties to the deed an intention that the breach of the condition subsequent should enure to the benefit of the grantors, for whom no provision for reverter was put in the deed. It would'be difficult to perceive any sensible motive on the part of the buyers of the land at a full price, for surrender of their title in case the land was not put to the particular use prescribed in the deed, which use primarily concerned the purchasers. The nature of that use (church cemetery) points-unmistakably to the fact that the condition subsequent providing for it, was inserted for the benefit of the parties who were buying and paying for .the land in order to procure a burying ground for all the members of the religious association whom they represented and who furnished the entire consideration. This unincorporated religious association was incapable of taking eo nomine a deed. It had the distinct purpose' of procuring a burying ground for its deceased members, .and in order that' a trust to that effect should be created, it bought and paid for land with' a provision in the deed prescribing the particular use to which they [130] intended to devote it. By this plan the religions association avoided circnity of conveyances; for though incapable of taking a deed as an aggregate body of unincorporated persons, the religions association, which paid for the land, might have taken a deed to a third party or parties for its benefit and might have required such trustee or trustees to make a second conveyance declaring the purpose for which he or they stood seized of the title. Instead of doing this they adopted the simple device of requiring an insertion in the direct deed from the first grantor. We do riot think any other conclusion as to the purpose of the insertion of the condition subsequent in the deed under review could be rationally arrived at from a consideration of the terms of the instrument and the circumstances surrounding its execution and the obvious purpose of the religious association, as shown by the records of its action in this matter. It follows that the Sehreiber heirs, having no right to a reversion of the land in the terms of the deed of their ancestor or by the intent of the parties thereto, were not prejudiced by the judgment of the lower court from which they alone appealed. Grantees Without Fault. III. There are other facts in the present record which are equally conclusive against the right of the Sehreiber heirs to any redress on this appeal. The law is that where a condition subsequent becomes incapable of performance without fault of the gurantee or from any legal obstacle, it cannot defeat the fee granted .or cause a reversion to the grantor or his heirs. That the City of St. Louis, in the' valid exercise of its police powers, had full authority to order the cessation of interments' in the cemetery in question, is a proposition which cannot be gainsaid, either in reason or upon authority, and it is affirmed with a full citation of cases, by Woodson, J., in Union Cemetery Assn. v. Kansas City, 252 Mo. l. c. 502, as well as in the cases cited in this opinion. [131] There are no circumstances in this case invalidating the ordinances of the City of St. Louis prohibiting any further use of the property in question for cemetery purposes, such as appeared in the case cited supra (Union Cemetery Assn. v. Kansas City). Besides, in this case the owners of the cemetery property acquiesced in the reasonableness of the ordinance prohibiting further interments in the cemetery in question, and have complied therewith by purchasing a cemetery whose location frees it from unsanitary conditions and-aré seeking to effectuate that purpose by the present suit. In the Kansas City case, supra, the owners of the cemetery denied the reasonableness of the ordinance and were sustained in that contention by this court. The facts of the two cases are essentially dissimilar, and the present case falls within the general rule that a reasonable ordinance of a municipal body prohibiting further interments in a cemetery within its limits, is within the power of that body and must be obeyed. Applying .this .principle to the matter in hand, the rule is thus stated by a standard text-writer: “Where a deed is made on the condition subsequent that the premises should be used as a cemetery, and an act of the Legislature renders further performance of the condition unlawful, the condition is discharged, and the title of the grantee is no longer subject to it.” [2 Devlin on Real Estate (3 Ed.), sec. 961.] The result is that even if the deed had contained any provision securing a reversion of the property in question or if such had been the intention of the parties, it would not be available in the present case to the Schreiber heirs. The judgment of the trial court is, therefore, affirmed. All concur.