260 Mo. 539 | Mo. | 1914
Lead Opinion
OPINION.
I.
(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
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
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,
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
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
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
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.
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
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
Concurrence Opinion
CONCURRING OPINION.
— If I understand fully my brother • Bond’s opinion he reaches the right result. I believe that his views are my views, but for fear that his very concise way of stating things may not fully present my ideas I add a few words. I believe that the fee simple title to this 200-foot rim is in the city of St. Louis. By the first deed made there might have been broad rights reserved tó Mr. Shaw and his assignees. By the second deed this first deed in this respect was shorn oí much of its apparent potency, but whether this ‘ ‘ shearing” touches the rim tract might be a question. But to my mind there is one thing clear throughout this whole transaction, and that is that Mr. Shaw intended to not only make this 200-foot rim an ornament to the park, but he likewise desired such ornament to produce some revenue for the other child of his creation, the Botanical Garden. To this end he required that leases should be made, and the proceeds paid to him in his lifetime, and thereafter by his will to the Botanical Garden. In modifying his first deed he did not undertake to destroy all his rights or interest in this 200-foot rim. If he did not do more, he at least clearly left upon the city the duty to lease this rim in the manner designated in the first deed, but he may have limited his rights (a matter we leave open because of some peculiar language in the second deed) to a suit to compel performance in a case of a willful neglect to do this thing. It is a clear duty upon the part of the city to make an attempt^ in good faith, to rent this rim property as provided for in that first deed, and when so rented to pay over the rentals to the Botanical Garden. Unfortunately the pleadings in the case here
This cannot be decreed in the instant case, because of the pleadings, but I add these few words, because I feel that Mr. Shaw has at least properly reserved for the Botanical Garden a remedy to enforce this right which he always had, and because my brother’s opinion does not emphasize this view. The opinion states that there may be a right to enforce the performance of this duty to rent. I desire to add that there is not only a duty imposed to rent, but that a clear right is reserved to enforce this duty/when there has been a willful neglect. This right was first in Shaw and by his will passed to the Botanical Garden.: Nor could the city escape this duty by showing an attempt to rent at fanciful prices. If the city, can get any substantial ground rental for the use of the described lots, it is its duty to rent. It should try to rent at reasonable or even low rental sums provided it can procure the erection of ornamental villa residences on these lots. Shaw intended not only to beautify the park by these villa residences, but to get some revenues for himself and assignees. His idea was to beautify the park, and at the same time support and maintain his other charity, the Botanical Garden. He was looking into the future, and what the future-will realize of his dreams, if
SEPARATE OPINION.
— I concur in the result reached in the majority opinion that this case should be reversed and remanded; but I am not in accord with the reasoning by which this conclusion is reached, and finding the divisional opinion of Commissioner Blair more nearly expressive of my views, I have, barring changes in phraseology, adopted same, and file it herewith as my separate opinion.
Appellants constitute the board of trustees of the Missouri Botanical Garden, under the will 'of Henry Shaw, deceased. Respondents are the city of St. Louis, the Attorney-General, and the persons constituting the board of commissioners of Tower Grove Park.
This suit was brought to procure a decree authorizing the sale, under restrictions and in lieu of leasing, of a strip of ground 200 feet wide surrounding Tower Grove Park in the city of St. Louis.
The court below denied the relief sought and, on the cross-bill, -gave judgment vesting the title in the strip mentioned in the city of St. Louis, for park purposes. ' •
In 1867, the Legislature passed “An Act to Create, Establish and Provide for the Government of the Tower Grove Park, of the City of St. Louis,” the most pertinent sections of which follow:
“Section 1. As much and such portions of the following described tracts or parcels of land, partly within and mostly without the present corporate limits of the city of St. Louis, to-wit: Bounded by Grand*576 avenue on the east, Arsenal street or road on the south, Magnolia avenue, as now existing, on the north, and the King’s highway, so-called, on the west, in the city and county of St. Louis, as Henry Shaw may see fit to give, .grant and convey, to the city of St. Louis, for the purposes of a public park, shall be known and designated as the Tower Grove Park of St. Louis.
“Section 2. The said park shall be under the exclusive control and management of a board of commissioners, to consist of not less than five nor more than seven persons, who shall be named and styled the Commissioners of the Tower Grove Park, and who shall be appointed as hereinafter provided; but of which commissioners Henry Shaw, the donor to the city of St. Louis of the land for the said park hereby established, during his natural life, and after his death his successor, in the direction of the Missouri Botanical Garden, as he may create the same in any devise or conveyance which he may be authorized by law to make, shall be and constitute one member.
“Section 3. The following named person, Henry Shaw, and such persons as he may select, shall constitute the board of commissioners of said park. They shall hold their offices as such commissioners for five years from the time of the passage of this act, and until their successors are appointed and qualified. No member of said board shall receive any compensation for his services, but each commissioner shall, nevertheless, be entitled to receive for his personal expenses, in visiting and superintending' the said park, a sum not exceeding one hundred dollars per annum. . . .
“Section 18. The said board is hereby authorized to take and hold any gifts, devises or bequests that may be made to said board, upon such trusts and conditions as may be prescribed by the donors or grantors thereof, and agreed to by said board, for the purpose of embellishing or ornamenting said park, and shall annually make in its report a statement in detail*577 of the condition and value of all such gifts, devises or bequests, and of the names of the persons by whom the same are so given, devised or bequeathed. . . .
“Section 24. As soon as the said Henry Shaw shall grant and convey to the city of St. Louis any land contained within the boundaries named in the first section of this act, the said land, and every part thereof so conveyed, so long as the same shall be held in fee by the said city of St.. Louis, and, in consideration of such grant and conveyance by him, shall be exempt from the payment of all State, county, municipal or other taxation imposed or to be. imposed under or by virtue of any law of this State whatsoever. ’ ’
The act further provided for the issuance of bonds by the city in the sum of $360',000', and the payment of this sum to the commissioners of the park, this being the money referred to in section 12 of the act which prescribed that the money so coming into their hands should be applied and used in fencing, improving, ornamenting and beautifying said park. It was also provided that after the lapse of three years from the passage of the act mentioned the city should annually levy and collect a tax sufficient to produce $25,000. to be used for the maintenance of the park.
In 1868 Henry Shaw and James S. Thomas, then mayor of the city of St. Louis, executed a deed to the property in question to the city of St. Louis, and in 1872 Henry Shaw executed a second deed modifying that of 1868. These deeds are set forth in full in the majority opinion.
A plat of Tower Grove Park showing the strip 200 feet wide here involved, indicated thereon by the numbers 2103, 2104, 2107, 2108, 4100', 4101, 4106, 4107, 4108 and 4109, appears opposite page 234, V'olume 151, Missouri Reports, and need not be reproduced here.
At the time of Henry Shaw’s death the land in the vicinity of Tower Grove P’ark was but little improved,
Henry Shaw died in 1889 and by his will (set out in Lackland v. Walker, 151 Mo. l. c. 222 et seq.) he devised to trustees all real estate owned by him at his death “within the following limits, to-wit, Grand avenue on the east, the road running from Grand avenue to the Old Manchester Road, and now known as Mc-Ree avenue dividing United States Survey 1519 and 3294, on the north; Arsenal street or road on the south, and King’s Highway and Old Manchester Road on the west; excepting such interests and estates as I have heretofore conveyed to, the city of St. Louis, by two deeds, one bearing date the 20th of' October, 1868, and the other bearing date July 9’, 1872, and do therein devise to the said city of St. Louis for Tower Grove Park,” and excepting certain other property not in. anywise involved here.
The property described in the two deeds. mentioned was situated within the general boundaries given in the will as quoted. It was not otherwise specifically mentioned in the will, but there was a general residuary clause devising and bequeathing all property of the testator, not otherwise disposed of, to the same trustees. The devise to these trustees included the Missouri Botanical Garden; and the function of the board of trustees thus created by the will was to maintain the .garden, and to that end to administer the other property devised to them for that purpose in the manner prescribed by the testator and deemed by him best fitted to accomplish his expressed purpose “of having for the use of the public a botanical garden easily accessible, which should be forever kept up and' maintained for the cultivation and -propagation of plants, flowers, fruit and forest trees, and other productions of the vegetable kingdom; and a museum and
Since the death of Henry'Shaw much of the property surrounding the park and garden has been platted, sold and improved; streets have been paved; sewers constructed; and, in fact, the city has spread far beyond the property; in the vicinity are numerous streetcar lines connecting this portion of the city with others and making it easily accessible. Property around the park and across the avenues therefrom averages $40 or $50 per front foot in value, and the strip involved is estimated to possess a like value. The evidence is that $816,000 is a conservative estimate of its total value. The petition alleges and-the answer admits that in view of. established custom and individual conviction now prevalent in the city of St. Louis, the method of leasing prescribed by th*e deed of 1868 is impracticable and impossible.
Appellants contend Henry Shaw, in the deed of 1868, reserved a beneficial interest which under the will passed to them as trustees for the garden; and, having offered evidence that the income of the garden from other sources was so depleted by the payment of general and special taxes, paid and to be paid, as to .seriously interfere with the effectuation of Henry Shaw’s plans respecting the garden, pray a . decree authorizing the sale of the strip involved, under proper restrictions, either to the city of .St. Louis, if it desires to buy same for park purposes, or to private persons, the restrictions in the latter case to be of such character as to be in consonance with the purpose of the -grantor expressed in the deed of 1868.
Respondents contend that the requirement as to leasing in the deed of 1868 is a mere condition subsequent; that performance has become impossible and, consequently, the city holds the title relieved of all
I. The principal question in this case is as to the nature and extent of the interest the city took under the déed of 1868 in the strip of ground two hundred feet wide which is the subject-matter of this litigation.
The intent of Henry Shaw must be gathered from the entire deed. It expressly provides that the strip mentioned shall be kept leased upon long leases for villa residences in order to make it both "a source of ornament to said park” and a source of revenue.
The habendum clause is full of significance. The city is to hold the land in fee so long as it " complies with the following conditions [already expressly referred to in the granting clause] annexed to said grant, to-wit,” that all of said grant except the strip 200 feet in width shall be and remain a public park, etc., forever ; that no portion of said park shall ever be used for any other than park purposes, nor shall any revenue ever be raised from the use of any portion of said park except such as may be consistent with its said purpose and use and which revenue shall go to the maintenance of said park through the board of commissioners.
“ Fifth, that the board of commissioners of the Tower Grove Park shall from time to time cause to be leased the strip of land 200 feet.in width so surrounding said park in convenient lots,” etc., and pay the gross rents to Henry Shaw and to his heirs and assigns forever.
It is also provided that in case the conditions are violated in the lifetime of Henry Shaw, the property and improvements shall revert to Shaw; if violated after his death, then ‘ ‘ the said estate hereby conveyed and all improvements thereon 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” if incorporated. .
The beneficial interest in the strip remained -the property of Henry Shaw, then the owner as well as creator of the Missouri Botanical Garden, and the deed is clear that his intentions were that at his death this interest should be devoted to the support of the garden.
The trustee, the city of St. Louis, contends that the so-called condition in the deed is impossible and, therefore, that it holds the entire estate rid of all conditions, under rules applicable to conditions subsequent. This contention ignores the well established doctrines
The provision of section 24 of the Act of 1867 to the effect that "as soon as Henry Shaw shall grant and convey to the city of St. Louis any land contained within’ the boundaries named in the first section of this act, the said land and every part thereof shall be held in fee by the said city of St. Louis,” related necessarily to land conveyed for park purppses, as provided by the first section, and could not operate to change or enlarge an additional grant of a right or interest in land not given for park purposes within the meaning of the act, but to enable the city to protect the park surroundings.
The provisions of the act relating to the exemption of park property from taxation are of no consequence in this ease. Whether applicable or inapplicable, void or valid, is of no importance upon the question as to what interest the deed of 1868 conveyed. Nor is the deed in any sense invalidated by the rule against perpetuities. The deed itself evidences the fact that Henry Shaw’s ultimate intent was to devote, after his
There was no waiver of any rights by the deed of 1872. That deed cleared some doubts as to the applicability of certain parts of the deed of 1868 to that part of the tract conveyed for park purposes, but expressly-asserted their applicability to the strip here involved, and in nowise modified or cut down the estate reserved.
The mention in that deed of the remedy by mandamus in case there was a wilful refusal to lease the ground was in no sense preclusive. Remedies existing under the deed of 1868 remained unchanged. -The language of the deed of 1872 leaves no doubt on this head.
It is urged, however, that the will does not devise to appellants any interest in the,strip around the park.
The first clause of the will ends all argument on this question. If Henry Shaw reserved any interest (and we hold he did) in the land about this park, that interest passed under the will to the plaintiffs’ predecessors in trust, even if the residuary clause of the will and the deed of 1868 itself be ignored in this connection.
The record does not disclose any substantial basis for what is said in respondents’ brief concerning the Statute of Limitations. Therefore, that phase need not be considered.
II. The conclusion having been reached that the deed of 1868 reserved an interest in trust in the strip
III. It follows that under our view of this case plaintiffs are entitled to the relief prayed; and if the city of St. Louis desires to acquire the land for park purposes and add it, freed from restrictions, to the tract conveyed to it by the deed of 1868 as Tower Grove Park,' it should be permitted to do so by any lawful method it may choose. To enable it to exercise
■ This decree should in all respects follow, as nearly as may be, that in Lackland v. Walker, supra, care being taken to observe the rights of the city and, through it, the public, that the ornamental character of the strip two hundred feet wide as a border for the park may be permanently preserved.