Bredell v. Kerr

• Decision Date: 07 May 1912
• Citation: 147 S.W. 105
• Parties: BREDELL et al. v. KERR et al.
• Court: Missouri Supreme Court

147 S.W. 105

BREDELL et al. v. KERR et al.

Supreme Court of Missouri.

May 7, 1912.

1. DEEDS (§ 157)—CONDITIONS.

A grantee, by accepting a deed, is bound by a condition of forfeiture contained therein imposed for violation of a condition subsequent.

2. JUDGMENT (§ 707)—PERSONS BOUND.

Persons not parties to a suit are not bound by the decree therein except as to matters over which the court had jurisdiction.

3. TRUSTS (§ 162)—RESIGNATION OF TRUSTEE—RIGHT.

Every trustee has the right to resign.

4. TRUSTS (§ 158)—APPOINTMENT OF TRUSTEE—APPOINTMENT BY COURT.

The circuit court of the county in which property conveyed in trust was located had the right to accept the resignation of the trustee and appoint another trustee in his place.

5. TRUSTS (§ 169)—APPOINTMENT OF TRUSTEE—COLLATERAL ATTACK.

The appointment of a trustee by a court as the successor of the trustee of an express trust cannot be collaterally attacked.

6. TORTS (§ 14)—PENALTIES FOR SUING.

Upon finding in favor of defendants in ejectment, they were not entitled to damages because of plaintiffs' bringing suit for the property.

7. TRUSTS (§ 191)—BREACH OF CONDITIONS— FORFEITURE.

A deed conveyed property to a trustee, denominated the board of trust, in trust to permit a denominational college to use and control the property for educational purposes and not otherwise, and upon condition that the trustee "shall not convey or dispose of" the premises "to any other person for any purpose or upon any consideration whatever, except the sale thereof be ordered by a court of competent jurisdiction upon due proceedings had therefor * * * for the purpose of selling the said property * * * in pursuance and fulfillment of the trusts for which said college was organized." The board of trust afterwards resigned its trusteeship, and the circuit court of the county, after divesting it of legal title of the trust property, vested the title in a board of trustees subject to all the trusts and conditions in the deed, and decreed, "for the further confirmation of the title," that the board of trust convey the legal title to the board of trustees. Held, that the conveyance of the property to the board of trustees by decree of court did not breach the condition of the deed against transferring the property so as to forfeit it to grantor's heirs.

8. CORPORATIONS (§ 36)—CORPORATE EXISTENCE.

A corporation may cease to exist the same as a natural person.

9. DEEDS (§ 165)—CONDITION SUBSEQUENT— EFFECT OF BREACH.

Title does not revert ipso facto in case of breach of a condition subsequent in a deed, but remains in the grantee until the grantor asserts his rights arising under the forfeiture by re-entry.

10. DEEDS (§ 166)—BREACH OF CONDITION— RIGHT OF RE-ENTRY—LAPSE OF TIME.

While mere lapse of time within the period of limitations will not bar a grantor's right of re-entry to enforce a forfeiture for breach of condition subsequent, he will waive such right if he delays an unreasonable time in asserting it, with knowledge that the grantee on the faith of his title is making valuable improvements, so that where the heirs of the grantor, after learning of a breach by the grantee of a condition subsequent in the deed by transferring the property, stood by for more than a year with knowledge that a large sum raised by charitable contributions was being invested to improve the property and made no claim of title during that time, they waived their right to re-enter for breach of the condition.

In Banc. Appeal from Circuit Court, Cole County; Jno. M. Williams, Judge.

Action by Maria Bredell and others against David R. Kerr and the Board of Trustees of Westminster College. From a judgment for defendants, plaintiffs appeal. Affirmed.

Charles Lyons and Alexander Graves, for appellants. W. M. Williams, H. S. Priest, Judson & Green, Selden P. Spencer, and B. H. Charles, for respondents.

KENNISH, J.

This appeal is from a judgment of the circuit court of Cole county in an ejectment suit. By agreement the cause was tried to the court without a jury. After hearing the evidence and arguments, the court took the case under advisement and thereafter filed a written memorandum containing a statement of facts and conclusions of law thereon which we consider so in accord with the evidence and the principles of law applicable thereto that, except as to what is said as to the defense of estoppel, we reproduce and adopt it as a part of this opinion. It is as follows:

"Suit in ejectment for the possession of the Westminster College property at Fulton, Mo., by plaintiffs as heirs of Edward Bredell, deceased.

"Petition filed in Callaway county April 18, 1911, and venue changed to Cole county, Mo.

"Westminster College was incorporated by an act of the Legislature long prior to the Civil War for educational purposes, under control of the Synod of Missouri of the Presbyterian Church (old school).

"In 1866 the board of trustees borrowed from William King $5,000 and executed a mortgage on the college real estate to secure same. The note being unpaid, the property was sold in 1867 by the mortgagor for the debt and cost, and was purchased by Henry M. Anderson, who gave his note to King for the purchase price, with Edward Bredell as surety.

"On June 29, 1869, Bredell paid this note to King, and Anderson conveyed the college property to him.

"Afterwards, July 9, 1869, Bredell made a written proposition to the college trustees that if they would raise a new endowment for the college of $100,000 he would convey to it, or to a trustee for its use, the college property. Some 10 years passed, and the college authorities had failed to raise the promised endowment; meantime, the Synod of Missouri had caused to be organized a corporation called the `Board of Trust,' having general power to accept and hold personal property for the college and for other purposes.

"Afterwards, on December 17, 1879, a new contract was executed by the board of trustees, the Board of Trust, and Bredell, under which the latter agreed to convey the college property to said Board of Trust as trustee, waiving the endowment if the latter would have its charter amended within 90 days so as to authorize it to hold real estate.

"This agreement provided that: `The Board of Trust shall permit the said real estate and the buildings which now are, or may hereafter be, erected thereon to be used, occupied, and controlled by the trustees of Westminster College for the educational purposes of said college and not otherwise; but without any power on the part of said Board of Trust, or any other person, to suffer or permit any incumbrance thereon; and without power on the part of said Board of Trust to convey or dispose of the same, except the sale thereof be ordered by a court of competent jurisdiction, for the purpose of investing the same in other real estate, to be held, used, and managed upon the like trusts as hereinbefore stated, and none other.'

"The charter of the Board of Trust having been amended, as required, Bredell and his wife, on April 16, 1880, conveyed the college property by warranty deed to said Board of Trust, as trustee for the college, which deed was accepted and is recorded in Book 13, page 259.

"As plaintiffs predicate their right to recover the college property on this deed, it becomes necessary to set out its conditions, which plaintiffs claim have been forfeited, as follows:

"`Upon trust that the party of the second part shall permit the said lands hereinbefore described and conveyed and the buildings and improvements which now are or may hereafter be erected thereon to be used, occupied, and controlled by the board of trustees of Westminster College (a corporation existing under the laws of the state of Missouri), for the educational purposes of said college and not otherwise, from time to time in accordance with the powers conferred upon said corporation in and by the charter thereof and amendments to the same, and with the purpose for which said college was incorporated, provided, nevertheless, and this grant and conveyance is made upon the express condition that neither said party of the second part herein nor said board of trustees of Westminster College nor any person whatsoever shall at any time suffer or permit any incumbrance or lien of any description to be created or imposed upon said premises hereby conveyed, and upon the further express condition that the said party of the second part shall not convey or dispose of the said above-described and granted premises, whether absolutely or upon condition, to any other person, for any purpose or upon any consideration whatever, except the sale thereof be ordered by a court of competent jurisdiction, upon due proceedings had therefor, according to the course of equity in such cases, for the purpose of selling the said property, or such part thereof as may be decreed to be sold by such court in pursuance and fulfillment of the trusts for which said Westminster College was organized, with a view to invest the proceeds of such sale in other real estate to be held, used, and managed by said party of the second part or its successors in the trust hereby declared and granted, upon the like trusts hereinbefore stated and none other; it being intended by the parties hereto that the title to said lands and tenements hereinbefore described and of, in, and to all other lands which may be purchased in substitution therefor as hereinbefore provided, if any, shall be vested in said Board of Trust, party of the second part herein, as part of the permanent endowment of said Westminster College, and the principal thereof shall never be diminished, incumbered, diverted, or disposed of or used for any purpose except as hereinbefore authorized and provided.

"`And it shall be lawful for the said grantor and his heirs or assigns, upon a breach of the trusts or conditions hereinbefore stated, or any or either of them, to enter and take possession of said premises,...