194 Mo. 576 | Mo. | 1906
This is an action of ejectment by the heirs of Thomas Hoke, deceased, against the defendants for the possession of the following described tract of land situated in St. Louis county, to-wit: commencing at a stone on the dividing line between United States surveys 2684 and 2775 in and on the north edge of the St. Charles macadamized road, in the line dividing the land of John B. Cavender (formerly his) and Thomas Hoke (formerly his), thence north 435 feet to a stake, thence south 33 degrees 31 seconds west, 363 feet to a stone, in the north line of the St. Charles road, thence south 56 degrees 31 seconds east with the north line of said road 240 feet to the place of beginning, containing one acre.
Ouster is laid January 1,1893. The defenses were a general denial, the ten-year Statute of Limitations, waiver of the conditions in the deeds under which defendants derived title, and laches upon the part of plaintiffs in asserting their title to said land.
The cause was tried by the court, a jury being waived. The trial resulted in a judgment for defendants, from which plaintiffs, after an unavailing motion for a new trial, appeal.
The plaintiffs are the lawful heirs of Thomas
On September the 1st, 1892, James Miller sold the property to the Central Township Farmers’ Club, the ■defendant in this case, who immediately took possession and claimed the property as their own, made costly improvements on their house, built new sheds and new fences, constructed a gravel road and walk from the rock road to the house around it, have planted trees, cut the grass and have exercised general authority and acts ■of ownership, claiming it as their own in good faith and under color of title; that they have paid the taxes, together with James Miller, since June the 1st, 1891; that at no time until the. date of the present suit — April the 18th, 1902 — have the plaintiffs demanded the property or made any entry thereon.
At the instance of the plaintiff, the court declared the law to be as follows:
“The court declares the law to be that the defendants, to establish their defense of title from possession, must show that they and those from whom they derived title held the land in suit continuously, exclusively and adversely for ten years prior to 18 April, 1902, date of filing suit herein, against the plaintiffs, and the mere possession thereof for ten years is not sufficient. ’ ’
Over the objections and exceptions of plaintiffs, the court refused to declare the law to be as follows:
“The court instructs that, on the pleadings and •evidence, plaintiffs are entitled to recover.”
The court, of its own motion, gave the following ■declaration of law:
“1. If the court should find from the evidence that the Methodist Episcopal Church South, by and pursuant to order or vote of its General Conference, acting in accordance with its rules and discipline, abandoned the use of the property in question as a house •or place of worship and parsonage, and removed to another church site, and caused the said property with •other property used in connection therewith to be conveyed by deed by the trustees holding the title, to James Miller, absolutely and free from any trust, for the consideration of $3,000, and said church applied the same towards the purchase of such other site or the erection of another church building on said new •site and thereupon turned the exclusive possession of said premises over to said James Miller under his said conveyance, and he thereupon caused his said deed to be duly recorded and took such exclusive possession and removed the church furniture therefrom and exercised all the usual acts of ownership over and upon said property, claiming the exclusive ownership thereof; and all of said acts were done as aforesaid prior to March 14th, 1892, then such acts may be taken into consideration in connection with all the evidence in the case in determining whether or not there
‘ ‘ But to constitute such breach the court may find and determine from the evidence that the trustees holding the title to said property by their acts and conduct clearly manifested their intention no longer to comply with said condition, and disavowed the obligation to perform said condition, and intentionally appropriated and applied said property to uses clearly inconsistent with said condition and prohibited thereby-
“2. Although the court should find that there was a breach of the condition in the deed from Thomas Hoke to the church trustees, by reason of which the heirs of Thomas Hoke became entitled to demand and sue for possession of' the property in controversy, yet if the court should further find and believe from the evidence that, after such breach and before the commencement of this suit, James Miller and the defendant corporation as his grantee, under their deeds read in' evidence, held open, notorious and exclusive possession of said property, continuously, for a period of ten years, claiming exclusive ownership thereof under said deeds, adversely to all the world, then the court should find for the defendants.”
To the giving of said declarations of law the plaintiffs excepted at the time.
While the plaintiffs objected and excepted to the above declarations of law given by the court of its. own motion, as well as to the action of the court in refusing other declarations of law requested by them, the attention of the court was not called to these matters in the motion for new trial, and they cannot, therefore, be considered upon this appeal. [State v. Pyscher, 179 Mo. 140.]
Plaintiffs contend that James Miller became the trustee under the Hoke deed in 1852, and continued as such until September, 1892, and trustee of the church until November 14,1895. On the other hand, defendants contend that the condition in the Hoke deed was broken on the first day of June, 1891, when the trustees of said church, by warranty deed, conveyed the remaining part of said land to James Miller. Section 4263, Revised Statutes 1899, provides that “no entry upon any lands, tenements or hereditaments shall be sufficient or valid as a claim, unless an action be commenced thereon within one year after the making of such entry, and within ten years from the time when the right to make such entry descended or accrued.” In passing upon this section of the statutes, in Bradley v. West, 60 Mo. l. c. 41, the court said: “This section is the same as it existed under the previous statute; and, as applicable to the limitations of ten years, it is meaningless and fails to provide any new or additional remedy. Whilst it declares that an action may be brought within one year after an entry is made, yet it abridges or limits the time to within ten years from the time when the right to make such entry descended or accrued. As the right to make the entry existed as soon as a cause of action arose in consequence of an adverse holding, the limitation is not in the least extended. The intention was doubtless different, but the statute is thus written.” So that, whether entry for condition broken be made under the statute, or as at common law. it must
The universal doctrine is that conditions subsequent are not favored in the law, and are strictly construed in favor of the grantee. [Morrill v. Railroad, 96 Mo. 174; Crane v. Hyde Park, 135 Mass. 149.] Under such circumstances, it is well settled that there must be some positive act upon the part of the grantor manifesting his intention to reclaim the estate, either by bringing suit or otherwise.
It may be conceded that the possession of James Miller and other trustees was not adverse to plaintiffs; but that it did become adverse to them when the property was sold and the deed executed to Miller by the trustees is, we think, beyond any question. The execution of such deed to Miller clearly showed an intention on the part of the trustees to use the property for other than church purposes, for which it had not been used for several years. This is emphasized by the fact that the property was sold to Miller absolutely and unconditionally. That the title to the property was in the trustees until the sale to Miller is not disputed, and upon such sale the title vested in him, his heirs and assigns, until re-entry by the grantor or his heirs for condition broken.
The right to enforce a forfeiture may be forfeited or waived by the grantor. “He has an option to de
In Kenner v. American Contract Co., 9 Bush (Ky.) l. c. 210, it is said: “The more modem authorities on the subject of forfeitures establish, the doctrine that it is with the party in whose favor the condition is, or who becomes entitled to the estate by reason of the forfeiture, to say whether the estate shall be forfeited or not; and although the user, from which the grant of a public passway may be implied, must have continued for a period required to toll the right of entry in ejectment, the waiver of a forfeiture may nevertheless be inferred by reason of the failure of the party entitled to the estate to re-enter or assert some claim in a reasonable time, terminating the estate; and particularly in a case where the party to whom the grant is made is permitted to use and make valuable improvements on the premises after .the condition is broken. The courts adjudge the waiver of a forfeiture upon the principle that the happening of the condition does not ipso facto determine the estate, the same remaining in the grantee, but only subjects it to be defeated at the election ■of the grantor; and for the additional reason that forfeitures are not favored either in courts of law or •equity.”
There was evidence to show that the church, in pursuance of an order or vote of its Quarterly Confer■ence, acting in accordance with its rules and discipline, abandoned the property in question and removed to another church site, and caused the said property, with ■other property used in connection therewith, .to be con
The judgment should be affirmed. It is so ordered.