19 S.W. 154 | Tex. | 1892
This suit was instituted by appellants H.C. Meyer and William Bode, for themselves and in behalf of other citizens, of the Harrisburg community, in Washington County, against appellees. The petition in substance alleges, that the plaintiffs are claiming to own three acres of land conveyed to them by W.T. Bush by deed dated February 21, 1868. The object and purpose of said conveyance was to create a charitable trust for the establishment of a permanent *625 school in the Harrisburg community for the use and benefit of citizens of German descent and the public generally; that the plaintiffs were at said time citizens of said community, and donated the moneyed consideration stated in said deed in aid to creating said trust; that immediately upon the creation of the trust the appellants with other citizens of said community selected trustees, who took possession of said three acres, and have for twenty years past used and occupied said three acres in trust, paying taxes thereon; that plaintiffs and three others are the only beneficiaries now living who lived in the community when said trust was created; that plaintiffs fenced the land and erected a school house thereon, and that without interfering with the school, part of the land was used for a graveyard, and that in the intent to carry out the wishes of the grantor, plaintiffs have made permanent and valuable improvements on the land. The petition further avers, that about one year before the filing of this suit a dispute arose concerning the ownership of the land conveyed by the Bush deed, of date February 21, 1868, and by a judgment of the court the deed was declared void for uncertainty. Thereupon the defendants by fraudulent representations induced the Bush heirs to execute to them a deed for the land absolute on its face; that the heirs received no consideration for the execution of said deed and asked none, their purpose and intention being to ratify and make good the title in the trustees as intended by their father in the deed of February 21, 1868, and intended the deed as creating a trust for the same purpose and same parties as stated in the original deed. The petition alleges, that the defendants forcibly entered upon and ejected plaintiffs from said land, and are about destroying the fence and school house erected on said land, and to mutilate the graves on said land, and are about to sell and alienate said land and divert it from the trust, etc. Petition prays for injunction, and that the deed from the Bush heirs be construed in connection with the deed of their father, executed February 21, 1868; that it be declared a charitable trust for the purposes stated; that the plaintiffs be allowed to proceed with the execution of said trust, and that the court appoint trustees to carry on said trust.
The appellees answered by general demurrer and general denial. Also further answered, that the land was, in 1871, by the beneficiaries in the trust turned over and delivered to the Zionville Evangelical Lutheran Church, to be used and occupied by the church community as they may see proper. One of the purposes was for a graveyard for the burial of the dead of said community; and it was understood that a school should be conducted in the church; that they, after the deed of February 21, 1868, was declared void, procured from the heirs of Bush a deed to the land, with the understanding that the land should be used partly for a graveyard and partly for church and school purposes; that at the time this suit was brought, in pursuance of said understanding *626 they were preparing to execute deeds to the trustees of the church and graveyard portion of said lands, and to trustees of the part set aside for school purposes. Defendants also offered to execute said deeds, and pleaded that the former suit in which the deed was declared void was res adjudicata.
Judgment was rendered in favor of defendants generally, and also dissolving the injunction.
It is contended by appellants, that although the deed of date February 21, 1868, was declared void for uncertainty, yet the execution of the subsequent deed by the Bush heirs to appellants, coupled with the trust that the property should be used for the purpose of carrying out the intention of their ancestor, as stated in the deed of February 21, 1868, had the effect to revive the charitable trust and give it vitality; and the facts showing that the appellants had paid to Bush the consideration mentioned in said deed of February 21, 1868, they thereby became donors to said trust; and upon the trust failing by reason of the deed being declared void, the title was lodged in them in trust for the benefit of said charity.
Although other questions are presented, we regard this as the controlling one in the case. In the case of Nolte v. Meyer,
We conclude that the case should be affirmed, and so report it.
Affirmed.
Adopted March 8, 1892.
JUDGE GARRETT did not sit in this case.