Carroll County Academy v. The Gallatin Academy Company
| Citation | 104 Ky. 621 |
| Parties | Carroll County Academy v. The Gallatin Academy Co. |
| Decision Date | 01 November 1898 |
| Court | Court of Appeals of Kentucky |
APPEAL FROM CARROLL CIRCUIT COURT.
WINSLOW & WINSLOW FOR APPELLANTS.
J. J. ORR, J. A. DONALDSON, AND R. W. MASTERSON FOR APPELLEE.
R. W. MASTERSON FOR APPELLEE IN A PETITION FOR REHEARING. (J. A. DONALDSON AND J. J. ORR, OF COUNSEL.)
JUDGE BURNAM DELIVERED THE OPINION OF THE COURT.
Plaintiffs allege that they are the trustees of the Gallatin Academy, by appointment of the Carroll County Court; that their corporation was the owner of a lot of ground in the town of Carrollton, which was unimproved by suitable buildings, and that in the year 1859 they conveyed this lot to the defendant, for a nominal consideration, upon condition that it should erect thereon suitable buildings for a high school, and that it should always thereafter be devoted to school purposes, whether retained by defendant, or be passed into other hands; that the deed was accepted, and suitable buildings erected on the lot for school purposes, by the defendant, and that a school was maintained there for many years; but that the defendant had abandoned the property for school purposes, and had failed for more than two years before the institution of their suit to have a school kept in the building, and it is claimed that they thereby violated the conditions of the trust. And they further allege that the charter of the defendant company provides that the corporation may be dissolved with the concurrence of four-fifths of the stockholders, or for the failure for two consecutive years to maintain a school in connection with the defendant association; and they plead that by reason of such failure defendant has forfeited its right to the property, and they ask for a restitution of the lot to them, and for a dissolution of the defendant corporation. A copy of the deed is filed with the petition, the habendum clause of which is in these words: "To have and to hold same unto said parties of the second part, their heirs and assigns, forever, on condition and in trust that they shall erect and put up a suitable building or buildings for a high school or seminary of learning, and that same shall always be devoted to school purposes, whether retained by said association or be passed into the hands of others." The defendant demurred generally to the petition, which was overruled, and it then filed its answer, in which it denied that such a corporation as the Gallatin Academy has existed since the time the trustees conveyed the lot to it, in 1859; denied that the County Court of Carroll county had the power to appoint trustees for such corporation, or that it has done so; and denied that it has abandoned the use of the property for school purposes, on made any other use thereof. Plaintiffs, in their reply, aver that the defendant accepted the deed to the lot in question from the trustees, who were appointed by the Carroll County Court exactly as they were, and plead that the defendant is estopped to deny the existence of the corporation, or the power of the court to appoint trustees of the Gallatin Academy, after the acceptance of such conveyance. The pleadings being made up, proof taken, and the case submitted for judgment, the chancellor adjudged that the defendant had failed to carry out the purposes and objects of the conveyance and the terms of its charter, and that the conveyance of the lot being without consideration, and for a charitable purpose, the property reverted to the Gallatin Academy; and this appeal is prosecuted to reverse that judgment.
By the acceptance of the deed from the Gallatin Academy, defendant obligated itself to erect on the lot conveyed therein suitable buildings for a seminary of learning, and covenanted with the grantors that the property should always be devoted to school purposes; and the petition alleges that defendant, in conformity with this condition of the deed, did erect the buildings required. And the only question left for the determination of the court, under the averments of the petition, is, has the property been abandoned for school purposes, and used by the defendant for other purposes inconsistent with the terms of the deed? And, if so, are the plaintiffs entitled to have the property restored to them, as the successors of the trustees of the Gallatin Academy, who executed the deed to defendant in 1859?
The clause of the deed upon which appellees must rely to work the forfeiture asked for herein, even it it be conceded that they are entitled to maintain...
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