Mills v. Evansville Seminary

Citation2 N.W. 550,47 Wis. 354
PartiesMILLS and wife v. THE EVANSVILLE SEMINARY and others
Decision Date14 October 1879
CourtUnited States State Supreme Court of Wisconsin

APPEAL from the Circuit Court for Rock County.

In September, 1859, the plaintiffs executed and delivered to the Evansville Seminary (a corporation under the laws of this state) an absolute, unconditional deed, with full warranties of a parcel of land in the village of Evansville, in Rock county, known as "Seminary Park," the consideration named in the deed being $ 500. This action was brought in 1876 against the Evansville Seminary and the Evansville Boot & Shoe Manufacturing Co. The specific relief demanded in the complaint was, that the deed above described be reformed so as to express the intention of the parties, by inserting therein a provision that in case of nonuser of the land for a seminary it should revert to the grantors, their heirs and assigns; that a certain deed of said land, executed by the president and secretary of the board of trustees of the Evansville Seminary to the other defendant company, dated January 19, 1876, might be adjudged void; that the Evansville Seminary might be required to reconvey said land to the plaintiffs, as reversionary owners; that both defendants might be restrained from otherwise disposing of or interfering with said property; and that the Evansville Seminary might be adjudged dissolved by its own acts.

The charter of the Evansville Seminary, and its amendments, were put in evidence on the trial of the action. The original charter was granted in 1856. It empowered the corporation among other things, "to acquire, hold and convey real estate and personal property;" and "to erect the necessary buildings, and conduct and continue, on the plat of ground marked and known as 'Seminary Park,' and such other grounds as said corporation may [might] acquire in the village of Evansville, . . . a seminary of high order for the education of youth of both sexes." It further provided that "all funds and property received by the board of trustees for seminary purposes, by gift or otherwise," should be "faithfully applied by them to the best of their judgment, for the benefit of the seminary, in the purchase or rent of grounds, the construction, purchase or rent of the necessary buildings, procuring library and apparatus, furniture and fixtures, creating endowments for the payment of professors and teachers, and in payment of the necessary expenses of the said corporation;" with a proviso, that "every donation or bequest made for particular purposes in accordance with the design of said corporation" should be applied "according to the wishes of the donor and the terms of the bequest." It also contained the following provision: "The library apparatus, buildings, and lands not exceeding six acres belonging to the said corporation, shall be exempt from taxation, provided that said lands shall not be used for any other than seminary purposes." None of these provisions appear to have been repealed or modified.

The circuit judge found the following facts: That at the time of the organization of the Evansville Seminary under the aforesaid act, the plaintiff David L. Mills was owner in fee of the land here in question; that, for the purpose of aiding said corporation, and to furnish it a site for the erection of buildings necessary for its objects, and solely as a gift or donation, said plaintiff gave to the corporation said land, and, by an instrument in writing by him executed and delivered, he agreed to convey the land to it upon condition that a seminary building should be erected thereon within two years from that time, the land to be conveyed for the purpose of a site for said seminary, and to revert to said Mills whenever it should cease to be used for that purpose; that a seminary building was erected on the said site within the time named, and thereupon a seminary of learning of the kind contemplated by the charter was established therein, under the charter, and continued until the spring of 1874; that on the 14th of September, 1859, plaintiffs conveyed said land to the seminary corporation in pursuance of the aforesaid agreement, without any consideration paid or agreed to be paid therefor, and solely for the purpose of donating the site to said corporation for seminary purposes; that the buildings erected on said site, and all other improvements thereon, were paid for with money donated to the corporation in aid of its general objects by a large number of persons residing in different parts of the country; that in the spring of 1874, said corporation wholly ceased to maintain a school in said building or use it for seminary purposes, and the use of the buildings and site for such purposes has been wholly abandoned since that time; that the conveyance to the Boot & Shoe Manufacturing Co. was made without the consent of plaintiffs and against the remonstrances of the plaintiff David L. Mills, and wholly without consideration paid or agreed to be paid therefor, in fraud of the rights of said plaintiff as donor, and "in utter violation of the duty with which the officers of said Evansville Seminary were clothed by law."

Upon these findings, the court held that the deed in question was void, and that plaintiffs were entitled to judgment declaring it void, and perpetually restraining the Evansville Seminary and its officers from selling or conveying any of the property except for seminary purposes.

The plaintiffs excepted to the failure of the court to find as a fact, that, in executing and delivering their deed to the seminary pursuant to the previous written contract, they did not intend to waive, and did not waive, their reversionary right to the premises in case the Evansville Seminary ceased to use them for seminary purposes. They also excepted to the failure of the court to hold as a conclusion of law, that the Evansville Seminary had forfeited its right to the premises and its right to the possession thereof, and that the same had reverted to the plaintiffs.

From a judgment in pursuance of the legal conclusions above stated the plaintiffs appealed.

Judgment reversed and cause remanded.

For the appellants, there was a brief by John R. Bennett and John Winans, and oral argument by Mr. Bennett and David L. Mills. [1] They contended, 1. That as plaintiffs' contract to donate and convey the "Seminary Park" to the Evansville Seminary was for the sole consideration and upon the express condition that the premises should be used only for seminary purposes and should revert when they should cease to be so used, these covenants and conditions in said contract did not merge in the deed executed by plaintiffs, and as between plaintiffs and the Evansville Seminary the agreement as to the reversion was still in force. De Forest v. Holum, 38 Wis., 516; Morris v. Whitcher, 20 N. Y., 41, 47. The execution of a conveyance pursuant to an executory contract of sale does not extinguish the agreement on the part of the vendee. Bogart v. Burkhalter, 1 Denio, 125; Johnson v. Hathorn, 2 Keyes, 476. Even when the executory agreement is by parol, the vendee who accepts a conveyance in pursuance of it is bound by its terms. 3 Keyes, 125; Witbeck v. Waine, 16 N. Y., 532; Mayor, etc., v. Stuyvesant, 17 id., 34; S. C., 10 How. Pr., 76; Mott v. Coddington, 1 Rob., 267; Atwood v. Norton, 27 Barb., 638, 644; Bennett v. Abrams, 41 id., 619, 625. 2. That by wholly ceasing to use the "Seminary Park" and the buildings thereon for seminary purposes, and by conveying it to the other defendant, the Evansville Seminary forfeited all its right and title, legal or equitable, in and to the premises. And the cancellation of the deed to the other defendant did not revest the title in the Evansville Seminary. Parker v. Kane, 4 Wis., 1; Wilke v. Wilke, 28 id., 299; Hilmert v. Christian, 29 id., 104; Horner v. Railway Co., 38 id., 165. A breach of a condition subsequent works a forfeiture of the estate. Hayden v. Stoughton, 5 Pick., 528; Gray v. Blanchard, 8 id., 284; Austin v. Cambridgeport, 21 id., 215; Bowen v. Bowen, 18 Conn., 535; Warner v. Bennett, 31 id., 468; Stuyvesant v. New York, 11 Paige, 414. Nicoll v. Railroad Co., 12 N. Y., 121. 3. That, by the acts above named and others inconsistent with its corporate existence, the Evansville Seminary became and is dissolved. A. & A. on Corp., § 74; 2 Kyd on Corp., 467, 516; Slee v. Bloom, 19 Johns., 456; People v. President, etc., 38 Cal., 166; Mickles v. Rochester City Bank, 11 Paige, 118; Hooker v. Utica Turnpike Co., 12 Wend., 371; Bingham v. Weiderwax, 1 Coms., 509; Dartmouth College v. Woodward, 4 Wheat., 518; Putnam v. Sweet, 1 Chand., 286. 4. That as the Evansville Seminary was an eleemosynary corporation, and its board of trustees mere trustees of a charity, upon the dissolution of the corporation or a total failure to dispense the charity according to the designs of its founders and benefactors, and a total abandonment of the same, its real estate reverts to its grantors, their heirs and assigns. 1 Black. Com., 484; Kent's Com., 307; 2 Kyd on Corp., 516; A. & A. on Corp., 10th ed., §§ 195-6, 778-9; Abbott's Dig. of Corp., 296; Hooker v. Turnpike Co. and Bingham v. Weiderwax, supra; Waldo v. Railroad Co., 14 Wis., 575; Dartmouth College v. Woodward and People v. President, etc., supra.

For the respondents, there was a brief by Cassoday & Carpenter, and oral argument by Mr. Cassoday. They contended that there was no evidence to sustain a finding like that the omission of which was excepted to. As to the questions of law, they argued, among other things, 1. That courts of equity have no power to dissolve a corporation, unless authorized to do so by statute. Folger v. Ins. Co., 99 Mass., 267, 274; B. M. Co. v. Langdon, 24 Pick., 49, 52-3; Att'y Gen. v. Ins. Co.,...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT