*1 al al v. PEARSON et KOHN et S.W.2d 795 83-291 Court of Arkansas Supreme May delivered Opinion *2 Scott, for appellant. Bob Branscum, for Jr., appellee.
Herby Kohn Appellants, Richard B. Chief Justice. Adkisson, in etal, deed by a charitable trust established trustees of Perry County decree of the from a appeal this bring the had which held that the trust Court Chancery and that the res was pres inapplicable, doctrine of cy and succession revert back to trust should appeal in to the On grantors. heirs succession appellees, reverse. of four dollars received
In 1913 for a consideration Smith, “commide”, C. and S. Cody, R. C. W. Chappell, Commity his wife deeded “unto the said L. Mitchell and J. site, a of Rosecreek” for Church House and Citizens In the deed was recorded. two-acre tract of land. erected a community to this deed the Rosecreek Pursuant until about which was used as a church building church affairs, use as community including polling 1960 and for up 1982. precinct, must describe a
In a charitable trust the settlor creating interest. The presence of substantial purpose public is not conveyance absence of words of trusteeship existence of an intent to determinative as to the necessarily T. The Law of establish a trust. G. G. and G. Bogert Bogert, event, acknowledged Torts In all the 66(1973). any parties that the 1913 deed established a charitable trust. trust for the the charitable
Appellants argue Rosecreek has not failed because the community house has been used for a Rosecreek continuously Com- Center, munity and for secular and meetings, “up witness, sixties” for An religious meetings. eighty-year-old committee, son of one original members of the Rosecreek, testified the church was built by the citizens of Mitchell, L. including grantor, building used by Missionary the Free Will Baptists, Baptists, Cumberland Presbyterians for church services and for funeral services until in the sixties.” He “up further testified was used 4-H building for as a meetings, lodge World, Woodsmen of the as a site for political speeches, as a precinct polling primary and state and general federal elections up He through elections. stated L. attended grantor, the secular *3 of the meetings community as well as the religious meetings. He also testified that the were used'for grounds dinner on the he, after funeral ground services. He further testified that others, along two had been elected the citizens of Rosecreek community to serve as the committee for the administration of the trust. This evidence the supports conclusion that the trust have failed although may for the services, purpose of maintaining religious it has not failed for the purpose of the citizens of Rosecreek. benefiting We conclude the chancellor erred in the trust had finding failed. completely
Even if the trust had the res of the trust should not revert back to the grantors and succession the heirs. to fails, When the specific charitable of the trust “if the purpose trustees paid consideration for the transfer to them are they allowed to retain the on failure property of the trust.” G. G. Bogert G. T. The Bogert, Law of Trusts (1973). 147 § The 1913 deed clearly states that the grantors conveyed the trustees, “unto the property the Commity,” “for and in $4.00, the consideration of the sum of Four Dollars.” Once consideration, is property conveyed for the grantor, or his succession, heirs in can no claim an interest in the longer land. Accordingly conclude the chancellor erred in that the finding should revert to by succession to their heirs. further it is
Appellants argue possible
421
In
in the 1913deed.
a mutual mistake
court
reform
equity
chancery
court
appellants prayed
an amended response,
two-acre
which described the
correct a mistake on the deed
rather
forty (S40)
the south
house site as
on
lying
of land where
a
tract
forty (N40)
larger
than the north
not
in
deed was
built. The error
actually
church was
more
had
filed. For
until
suit
been
appellee’s
discovered
years,
appellees,
sixty-seven
appellants,
than
tract had
had
the two-acre
residents of Rosecreek
assumed
deed.
correctly
been
1913
or
fraud
but by
to an agreement,
come
When parties
contract,
reflect their
truly
down to
fail to write it
mistake
the parties’
it reflect
to make
writing
will reform the
equity
Dobbs,
“The
(1973).
Remedies
4.3
intention. D.
true
§
draftsman,
is
the parties
he
one of
whether
mistake
a
relief,
scrivener,
provided
is adequate grounds
merely
true
parties’
to reflect
fails
only
writing
Dobbs,
is well-estab
11.6. It
supra,
D.
understanding.”
a deed upon
reform
law that
will
equity
Arkansas
lished
clear,
mutual
that a
evidence
and decisive
convincing,
instrument.
drawing
been made
mistake has
157,
v.
Eslick,
Booe
(1965);
1
v.
Ark.
388 S.W.2d
Warner
239
709,
v.
Goodrum
Booe,
(1946);
Ark.
Since review cases we hold that equity be charitable trust has not and the deed to we order reformed conform to the two-acre tract in use as a church site. building
Reversed.
Hickman, J., concurs the results. George Dudley Smith, Hollingsworth, Rose and JJ., concur. Hollingsworth,
P. A. The ma- Justice, concurring. holds that jority the charitable trust failed has not and that therefore, the chancellor ruled that the res erroneously trust should revert to grantors. agree While I with the result reached I by would hold that majority, way different reason. I do not think a ever charitable trust existed. Rather, I think the grantor’s entire interest conveyed deed in 1913. warranty
The property was sold an instrument entitled “Warranty Deed With Lien and of Dower.’’ Relinquishment It recited L. Mitchell and W. his wife: for and in consideration of the sum of Four $4.00 Dollars paid and to be R. W. paid by Chappell, C. C. Smith, commitie, Cody and S. hereby ... do grant, sell, and bargain, unto said for Church Commity site, Rosecreek, House of and Citizens unto. . . and heirs forever the lands . . . assigns, To following and have to hold the same unto said Committie and their unto and Successors unto his heirs and assigns, forever, with all thereunto appurtenances belonging. And we hereby covenant the said Commitie that we will forever warrant defend the title to the said against lands all lawful claims whatsoever lands are free from all liens and incumbrances. It being hereby expressly understood that a lien is hereby retained upon parcel lot land secure the payment residue of the purchase money he*nbefore *5 I, mentioned. And L. Mighell, wife of said M. for and in consideration of the said sum of money, do hereby release unto the relinquish Commitie, in and and homestead all of dower my right to said lands. deed, is than warranty selling
This more nothing build a church for the committee to property dollars. There is no of how long sum of four mention if must be used as a what it is church or happens not. To the the deed do contrary, says “grant, and sell” to the their heirs bargain committee members and “forever.” The interest retained assigns only was in the price nature of a lien until grantor purchase trust, was To establish a the donor first fully paid. charitable gift must make a for a charitable something purpose. Here, Charities sold Am his grantor 2d § Jur He did not it to the committee. Another property. give feature of of trust is that it involves a distinguishing any type Am separation interest and title. equitable legal 2d Jur Here, Trusts 5 (1975). the entire interest held the grantor to the deed. conveyed grantee this Since warranty existed, no trust it is is irrelevant whether or not the property still used as a church. I the reasons being would reverse for stated above. George
Smith, Rose, in this joins concurrence. J.,