Bredell v. Kerr

• Citation: 147 S.W. 105,242 Mo. 317
• Parties: MARIA BREDELL et al., Appellants, v. DAVID R. KERR and BOARD OF TRUSTEES OF WESTMINSTER COLLEGE
• Decision Date: 07 May 1912
• Court: Missouri Supreme Court

147 S.W. 105

242 Mo. 317

MARIA BREDELL et al., Appellants, v. DAVID R. KERR and BOARD OF TRUSTEES OF WESTMINSTER COLLEGE

Supreme Court of Missouri

May 7, 1912

Appeal from Cole Circuit Court. -- Hon. John M. Williams, Judge.

Affirmed.

Charles Lyons and Alexander Graves for appellants.

() The decree and the deed pursuant thereto in the suit of the Board of Trust against Board of Trustees of Westminster College October term of circuit court, does not affect the rights of these respondents, they being neither parties to the record nor privies. Sampson v. Mitchell, 125 Mo. 229; Barton v. Walker, 165 Mo. 32; Grimes v Miller, 221 Mo. 643; Freeman on Judgments (4 Ed.), sec. 154. (2) The action of the said Board of Trust and of the Board of Trustees of Westminster College as shown by the pleadings in said equity suit in executing the deed under the decree in said suit, considered with all the documentary evidence in this case, operates a forfeiture by reason of the breach of conditions subsequent contained in the deed of Edward Bredell, conveying the property involved to the Board of Trust. Stevens v. De La Vaulx, 166 Mo. 26; Stewart v. Jones, 219 Mo. 637; Gilman v. Hamilton, 16 Ill. 230; State ex rel. v. Pittman, 44 Mo. 576; Bryan v. Board, 151 U.S. 656; State ex rel. v. Neff, 28 L.R.A. 413; College v. Society, 3 Gray, 280; Jackson v. Phillips, 14 Allen, 591; Fellows v. Minor, 119 Mass. 545; Library v. Bliss, 25 N.E. 92; State ex rel. v. Adams, 44 Mo. 576; Trustees v. Woodward, 4 Wheat. 518. (3) Equity cannot afford relief against an express clause of forfeiture. Brink v. Steadman, 73 Ill. 243; Village v. Graham, 136 Ill. 524; Shoenburger v. Hay, 40 Pa. St. 132; Doe v. Elsam, 1 Moody & Malkin, 191; Tyler on Ejectment and Adverse Possession, p. 282; Lynde v. Hough, 27 Barb. 420; 2 Wash. on Real Property (6 Ed., 1902), secs. 963-964; Brooks v. Gaffin, 192 Mo. 253; Brooks v. Gaffin, 196 Mo. 357. (4) The answer herein virtually admits a breach of the conditions. (5) If respondents claim that the Statutes of Uses executed the trust in said deed, we contend that the trust therein created is active, the trustee, Board of Trust, therein named, having duties to perform under the terms of Bredell's said deed, viz: To sell the property under decree of court and to reinvest the proceeds in other property, the title to the newly acquired property to be vested in the said Board of Trust permanently. Simpson v. Erisner, 155 Mo. 164; Pugh v. Hayes, 113 Mo. 431; Walton v. Catcham, 147 Mo. 217; Perry on Trusts (5 Ed.), sec. 305; Hill on Trustees (Am. Ed.), p. 360; Newton v. Rebenoch, 90 Mo.App. 657.

W. M. Williams, H. S. Priest, Judson & Green, Seldon P. Spencer and Benjamin H. Charles for respondents.

(1) The paramount purpose of the Bredell deed had nothing to do with the mere personnel of the trustee. That paramount purpose was that the property conveyed to the Board of Trust: (a) Should be used to carry on and perpetuate Westminster College as an institution of learning, and that that property, or property lawfully substituted therefor in accordance with the provisions of the deed, should form part of the "permanent endowment" of the institution. (b) Should be used, occupied and controlled by the Board of Trustees. (c) As incidental to the paramount purpose, and as a means of securing it with certainty, he provided that neither the Board of Trust, nor the Board of Trustees, nor any other person should ever mortgage or incumber the land conveyed. (d) And he also desired and intended to vest the title in a corporation controlled by the southern synod, in order to be sure that the property should not be claimed and seized by the northern synod. (2) The decree of the circuit court dissolving the Board of Trust, and vesting the title in the Board of Trustees had no effect other than a mere change of trustees. There was no change in the trust itself, nor in the beneficiary. (a) This was no breach of the conditions of the Bredell deed, for that could only refer to a voluntary conveyance by the trustee. (b) It is an ancient and original exercise of equity jurisdiction to accept the resignation of a trustee, discharge him from his trust and appoint a new trustee. 28 Ency. Law, 958-961; Society v. Academy, 94 Mo. 459. (c) Even if Bredell had expressly prohibited the changing of trustees, which he has not done, a court of equity would still have such a power to make such a change if changed conditions made it desirable. Lackland v. Walker, 151 Mo. 248; Association v. Campbell, 147 Mo. 103; Gaston v. Hayden, 98 Mo.App. 683. The very radical changes in the attitude of the two Missouri synods toward each other and their willingness to unite in the joint support of the college, constitute such changed conditions as clearly justify the change of trustees directed by the court. Society v. Academy, 94 Mo. 459. (d) The circuit court having had jurisdiction, its appointment cannot be attacked collaterally; and its decree substituting a successor trustee for the trust is not open for review; and the deed made by the trustee to its successor having been made under order of court is the same as if the court itself had transferred the title. R. S. 1909, sec. 2109. (e) The Bredell heirs not being beneficiaries in the trust, nor claiming under the trust provisions of the deed, were not necessary parties to that proceeding. The bill was entirely proper for the purpose of procuring the appointment of a successor trustee. The condition in the deed was against a voluntary sale and conveyance by the Board of Trust which would mean an abandonment of the property for college purposes. The grantor did not mean to prohibit the appointment of a new trustee, and the appointment of a new trustee was not a voluntary sale and conveyance within the meaning of the provision in the Bredell deed providing for a forfeiture. (3) Conditions subsequent, because they tend to destroy estates, are not favored, are strictly construed, and every intendment is against the grantor. Van Horn v. Mercer, 64 N.E. 532; Hunt v. Beeson, 18 Ind. 380; Manifold v. Jones, 117 Ind. 212; 13 Cyc. 629; Adams v. Lindell, 5 Mo.App. 209, affirmed 72 Mo. 198. If this be true in ordinary cases, how much more strictly should the rule be enforced when the dominant purpose of the grantor is being effectuated, and the alleged right of reentry is asserted because of an assumed technical breach in a change of trustees, which cannot operate to the disadvantage even in the slightest degree of the real beneficiary for which the grantor was making provision. Pomeroy's Eq. Juris., sec. 381; Rogan v. Walker, 1 Wis. 527; Merrifield v. Cobleigh, 4 Cush. 178; Chute v. Washburn, 46 N.W. 555. (4) The use was executed. R. S. 1909, sec. 2867; Carter v. Long, 181 Mo. 701; Ottomeyer v. Pritchett, 178 Mo. 160. (a) No active or discretionary duties were imposed upon the Board of Trust. The property was to be used, occupied and controlled by the Board of Trustees. (b) The function of making a conveyance when directed by a court of equity was not a discretionary duty such as would bring this trust within the exception to the rule above stated. (c) The conveyance provided that neither the Board of Trust nor the Board of Trustees should have power to encumber the property. This indicates an expectation in the mind of the grantor either: 1, that the use was or would become executed, or, 2, that the Board of Trustees might at some time become the successor trustee.

KENNISH, J. Graves, J., concurs in the result.

OPINION

In Banc

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, Missouri, by plaintiffs as heirs of Edward Bredell, deceased.

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

"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 $ 5000, 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 ten 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...