Childs v. Wesleyan Cemetery Ass'n
| Citation | 4 Mo.App. 74 |
| Parties | THEODORE F. CHILDS, Appellant, v. WESLEYAN CEMETERY ASSOCIATION, Respondent. |
| Decision Date | 15 May 1877 |
| Court | Court of Appeal of Missouri (US) |
1. Equity will not presume a trust reserved in the grantor, but the proof of it must be clear. The mere expectation of a grantor that the premises granted would be used for certain purposes will not be construed into a reservation of the premises to himself if it should be used for other and different purposes.
2. Where a consideration is paid, and no uses are expressly reserved in the conveyance, the grantee will take the whole use.
APPEAL from St. Louis Circuit Court.
Affirmed.
W. J SHARMAN, for appellant: Uses and trusts.--Hill on Tr., 12th Am. ed., 162, 107; Rutherford v. Taylor, 38 Mo. 319; Price v. Thompson, 48 Mo. 365; 1 Cru. 399; Warrun v. Mayor, etc., 22 Iowa 351; Perry on Tr 134, 135, 144. Powers of corporations to acquire, hold, and sell realty.--Sess. Acts 1850-1, p. 130, sec. 2; Dartmouth College v. Woodward, 4 Wheat. 518; Pacific R. Co. v. Seily, 45 Mo. 220; Perviur v. Commissioners, 16 Ohio St. 370; Carroll v. City of East St. Louis, 67 Ill. 568. A trustee must comply strictly with the powers granted in the trust deed, or no title will pass at a sale under it.-- Powers v Kunchoff, 41 Mo. 425; Longwith v. Butler, 3 Gilm. 32; Powell v. Tuttle, 3 Comst. 396; Greenleaf v. Queen, 1 Pet. 138; Norman v. Hill, 2 Patt. & H. 676. Effect of undue influence, or abuse of trust.-- Turner v. Turner, 44 Mo. 535; Thornton v. Irwin, 43 Mo. 153; Davone v. Fanney, 2 Johns. Ch. 269. Adverse possession.-- Warfield v. Lindell, 30 Mo. 281. To whom and of what the record of a deed is constructive notice.-- Luby v. Wolf, 10 Ohio 83; Crispin v. Hannanen, 50 Mo. 344; Digman v. McCullom, 47 Mo. 372.
CLINE, JAMISON & DAY and W. F. CAUSEY, for respondent: Trusts and trustees.-- Lane v. Ewing, 31 Mo. 86; Perry on Tr. 54, sec. 83; Hill on Tr. 65, 66, 85, 86; Smith v. Walser, 49 Mo. 250. Equity will not presume a trust reserved in the grantor.-- Adams v. Logan County, 11 Ill. 336; Rev. Stat. Mo. 1845, pp. 219, 221, secs. 2, 14. No use can result to the grantor where the deed contains covenants of warranty.--Perry on Tr. 132; Philbrook v. Delane, 29 Me. 410; Hogan v. Wilcher, 14 Mo. 184. No use results to a donor.-- Good v. McPherson, 51 Mo. 126; Academy of Visitation v. Clemens, 50 Mo. 167. Notice imparted by record of deed.-- Rhodes v. Oulcott, 48 Mo. 367. Adverse possession a bar.-- Wall v. Shindle, 47 Mo. 282; Biddle v. Mellow, 13 Mo. 335; Scruggs v. Scruggs, 43 Mo. 144; Hunter v. Hunter, 50 Mo. 451; Poe v. Darnio, 54 Mo. 127. Estoppel.-- Ohio & Mississippi R. Co. v. McPherson, 35 Mo. 13; Camp v. Byrne, 41 Mo. 525; Cattle v. Snyder, 10 Mo. 763.
This is a suit in equity, by which the appellant seeks to establish a title to certain real estate, which he claims, upon the facts of the bill, belongs to him. There are two counts in the petition, the first relating to a tract known as the " Briggs tract," the second to a tract known as the " Ranken tract." In reference to the first tract the appellant's claim is that it was conveyed by Nathaniel Childs, the father of the appellant, to the respondent, in trust, for the special purpose that the respondent would use it as a cemetery; and that, the respondent having ceased to use it, and being now about to convert it to other and inconsistent uses, it should be restrained from such a violation of the trust, and that the rights of the appellant in the tract should be declared. In reference to the " Ranken tract," the claim of the appellant is that, though his father, through whom he derives title to both tracts, permitted it to be enjoyed by the respondent so long as the tract was used as a cemetery, yet, as no deed was executed, no title passed, and now, such use being abandoned, the property should be declared the appellant's. The respondent denied any title of the appellant in either tract, asserted property in itself, and the case was referred, for the trial of the whole issue, to a referee, who found, in substance, as follows:
1. That in the year 1847 N. Childs was a member of the Centenary Methodist Episcopal Church, South, and, being desirous to promote the interests of the church, he purchased, on May 27, 1847, from one Briggs, the property described in the first count; that this purchase was made by N. Childs with the intent that it should be for the benefit of the church, but that it did not appear that Childs purchased the property as agent of the church, or under such circumstances as in law to make him its trustee, though Childs intended, and the church expected, the property would be held for it; that soon after the purchase Childs established a cemetery on the ground, which was known as the Wesleyan Cemetery, for the benefit of the Centenary Church; that on April 27, 1849, an instrument of writing was drawn up on behalf of the church, and executed and acknowledged, and put on record on August 13, 1849, in the recorder's office of St. Louis County, by N. Childs. In this instrument the acquisition by Childs of the two tracts of land is recited, and then follows this clause: " Both of which said pieces of land described in the two deeds aforesaid I purchased for the benefit of the Centenary Church, in the city of St. Louis, primarily; and secondarily for the benefit of the Methodist Episcopal Church, South, with which said Centenary Church stands connected." The instrument then states that, in consideration of the premises and $1, Childs binds himself, as soon as he shall have received and been reimbursed $2,240, the amount due by him upon the land, with legal interest and costs and expenses that he may incur about the premises, to convey the two tracts to the three trustees of the Centenary Church, for its use, and ultimately for the use of the Methodist Episcopal Church, South, and for such other uses and purposes and trusts as shall be agreed upon between him and the official body of the Centenary Church. The instrument states: " Upon the premises aforesaid there is laid off and established a cemetery, now known as the Wesleyan Cemetery, and it is expected that I shall be reimbursed and indemnified, as aforesaid, by the proceeds and incomes realized from the appropriating and using said premises for the purposes of such cemetery; " and contains a clause in which it is stated that the title, which Childs agrees to convey to the trustees of the Centenary Church, is all such title as acquired by virtue of the two deeds first recited.
The referee further found, as matter of fact, that Trusten Polk and others, with the consent and coö peration of said Nathaniel Childs, applied to the General Assembly of the State of Missouri for a charter creating a corporation capable of holding and using the real estate described in said first count, and other real estate, for the purposes of a cemetery, and with a view to conveyance by said Nathaniel Childs of the real estate described in said first count, to such corporation, for the purposes aforesaid. And the said General Assembly, yielding to said application, did pass the said act, entitled " An act to incorporate the Wesleyan Cemetery Association," which was approved on February 28, 1851.
On December 5, 1853, N. Childs and wife executed and delivered to the respondent a deed, which was recorded July 11, 1854, for the consideration of $1, in the form of an absolute conveyance, without express uses, by which they conveyed to the respondent all their right, title, and interest to the " Briggs tract," except certain lots in it which are not in the controversy. The referee found that this deed was for such uses and purposes as the respondent was authorized by its charter to hold and use the same for, and executed with the intent that respondent should so use and dispose of the land; that it was for the nominal consideration of $1, which was never paid; and concluded that the property was conveyed without the creation or reservation of any trust for the benefit of Childs, and without any intention or agreement to create or reserve any. It was further found that, about the date of this deed, N. Childs delivered the possession of the real estate in it described to the respondent, and that the respondent has held and used the same for the purpose stated in its charter, and from the time it so received the premises has continued to have actual, open, and notorious possession thereof, to the time of suit, and has claimed the same as owner and adversely, and that such possession continued for more than twenty years prior to the bringing of the suit.
The referee further found that on December 9, 1873, by deed of that date, N. Childs conveyed all his estate and interest in the " Briggs tract" to the appellant; but that, inasmuch as there was no reservation in the deed of December 5, 1853, by way of trust or otherwise, to N. Childs, nor any understanding between N. Childs and respondent that any should be reserved, therefore the deed of December 9, 1873, conveyed no interest to the appellant, except as to the lots not in controversy; that the respondent received and held possession of the real estate conveyed to it as absolute owner, and not in any way as trustee for N. Childs.
2. As to the second cause of action, in reference to what is called the " " Ranken tract," the referee found as follows: That the respondent was incorporated, as stated above; that the said Nathaniel Childs, on January 12, 1848 by deed of that date, acquired the title to the parcel of land described in the said second count, which land was acquired by him in his own right, and not as agent or trustee, but with the intention to turn the same over to the said Centenary Methodist Episcopal Church, South, to be used...
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