Chouteau v. City of St. Louis

• Decision Date: 31 December 1932
• Citation: 56 S.W.2d 1050,331 Mo. 1206
• Parties: Azby Chouteau, the 3rd, and Francise Chouteau, Minors, by the City National Bank of Dallas, Texas, Their Guardian, and Morton Lucas, Appellants, v. City of St. Louis et al. Charles Lucas and Auguste A. Chouteau, Appellants, v. City of St. Louis et al. Harriet Clark Williams, Appellant, v. City of St. Louis et al
• Court: Missouri Supreme Court

56 S.W.2d 1050

331 Mo. 1206

Azby Chouteau, the 3rd, and Francise Chouteau, Minors, by the City National Bank of Dallas, Texas, Their Guardian, and Morton Lucas, Appellants, v. City of St. Louis et al. Charles Lucas and Auguste A. Chouteau, Appellants, v. City of St. Louis et al. Harriet Clark Williams, Appellant, v. City of St. Louis et al

Supreme Court of Missouri

December 31, 1932

Appeal from Circuit Court of City of St. Louis; Hon. Moses Hartmann, Judge.

Affirmed.

A R. A. Garesche, George G. Vest, Robert E. Maloney, George T Priest and Boyle & Priest for appellants.

(1) The act (Laws 1803-1822, Vol. 1, p. 989) provides for a dedication. Neil v. Independent Realty Co., 317 Mo 1235, 298 S.W. 363; City of Athens v. Burkett, 59 S.W. 408. (2) The act controls the dedication of the land in question, because the dedication was made under it and pursuant to its authority. Neil v. Independent Realty Co., 317 Mo. 1235, 298 S.W. 363; Hardin v. Ferguson, 271 Mo. 415. (3) The act limits the conveyance of the land to the uses of the county of St. Louis, and under it no title in fee was conveyed to the county. Neil v. Independent Realty Co., 317 Mo. 1235, 298 S.W. 363; Glasgow v. St. Louis, 15 Mo.App. 112. (4) The title to lands dedicated to a specific public use or purpose (such as a courthouse), upon failure of the use, or its abandonment, or its impossibility of performance, reverts to the original donor, or his heirs, by operation of law. Gaskins v. Williams, 235 Mo. 563; State v. Travis County, 21 S.W. 1029; Police Jury v. Reeves, 6 Mart. N. S. 221; Campbell v. City of Kansas, 102 Mo. 326; Neil v. Independent Realty Co., 317 Mo. 1235, 298 S.W. 363; Board of Education v. Edson, 18 Ohio St. 221; Williams v. Society, 1 Ohio St. 478; Newark v. Watson, 29 A. 487; Potter v. Bridge Co., 93 N.E. 716. (a) Impossibility of the execution of the use is shown in the case of property dedicated to the use by municipal corporations when the municipal corporation, through its legislative body, passes an act abandoning the property or prohibiting its use for the specified purpose. Campbell v. City of Kansas, 102 Mo. 326; Gaskins v. Williams, 235 Mo. 563; Newark v. Watson, 29 A. 487; Young v. Board, 51 F. 585. (b) Abandonment occurs where property, other than the property dedicated, is used for the purpose for which the property was originally dedicated. State v. Travis County, 21 S.W. 1029; Newark v. Watson, 29 A. 487; Gaskins v. Williams, 235 Mo. 563. (5) The dedication of land by the original donors left in them the possibility of a reverter. This is a valuable right, and to permit the city of St. Louis to claim the land in question in fee would be to deprive the original grantors and their heirs of a property right without the due process of law, and the taking of the same without compensation, and would be in violation of Section 21, Article II, of the Constitution of Missouri. Neil v. Independent Realty Co., 317 Mo. 1235, 298 S.W. 371; Sec. 21, Art. II, Const. of Mo. 1875.

Julius T. Muench, Oliver Senti, Jacob F. Pfeffle and Leonard J. Holland for respondent.

(1) Grants, conditional or otherwise, are readily distinguishable from dedications, in that grants must be made to and accepted by persons in esse, while dedications are mere appropriations for public use, without the necessity of a grantee in being at the time. 18 C. J. 39, sec. 3; Rutherford v. Taylor, 38 Mo. 318; Young v. Mahoning Co., 59 F. 100, 51 F. 585; Dugan v. Zurmuehlen, 203 Iowa 1114, 211 N.W. 986. (a) The same distinction applies as between a dedication and a gift or donation, a person in esse being necessary to receive and accept the gift. 18 C. J. 41, sec. 7; Athens v. Burkett, 59 S.W. 404. (b) The act negatives the idea of a dedication, because it directed the commissioners to "accept and receive" the proposed donation of land; a dedication does not require either receipt or acceptance. Brown v. Carthage, 128 Mo. 17; Hatton v. St. Louis, 264 Mo. 643; Otterville v. Bente, 240 Mo. 295. (2) The case having been tried below on the theory that the conveyance from Chouteau and wife and Lucas was a conveyance on condition subsequent, it cannot now be tried on the theory that such conveyance was a dedication in trust. Snyder v. Am. Car & Foundry Co., 14 S.W.2d 606; Mumford v. Sheldon, 9 S.W.2d 909; Mark v. Cooperage Co., 204 Mo. 262; Henry County v. Bank, 208 Mo. 225; Piening v. Wells, 271 S.W. 62; St. Louis v. Wright Contr. Co., 210 Mo. 502; Hof v. Transit Co., 213 Mo. 470; Brier v. Bank, 225 Mo. 684; Horgan v. Brady, 155 Mo. 668; In re Guardianship of Angela McMenamy, 307 Mo. 109; National Board v. Fry, 239 S.W. 524. (3) It is evident, from the provisions of the Act of December 14, 1822, as well as from the language of the acceptance and the deed, that the commissioners expected to receive, and the grantors expected to make, a gift or donation of the property in controversy. Act of 1822, Laws 1803-1822, p. 989. (4) The deed from the Chouteaus and Lucas was a gift for a beneficial public purpose, and this, in contemplation of law, was a gift for a charitable purpose, 11 C. J. 325, sec. 36; 5 R. C. L. 338-339, sec. 68; Stuart v. City of Easton, 74 F. 854, affirmed 170 U.S. 383, 42 L.Ed. 1078; Catron v. Scarritt Colleg. Inst., 264 Mo. 713; Lewis v. Brubaker, 14 S.W.2d 982; Perrin v. Carey, 24 How. 712; State v. Academy of Science, 13 Mo.App. 216; Historical Society v. Academy of Science, 94 Mo. 466. (5) A gift for a charitable purpose will not revert. Academy v. Clemens, 50 Mo. 172; Goode v. McPherson, 51 Mo. 127; Barkley v. Donnelly, 112 Mo. 575; Y. W. C. A. v. Kansas City, 147 Mo. 127; Lackland v. Walker, 151 Mo. 242; Hand v. St. Louis, 158 Mo. 209; Crow v. Clay County, 196 Mo. 261; Mott v. Morris, 249 Mo. 148; Catron v. Scarritt Inst., 264 Mo. 724; Glaze v. Allen, 213 S.W. 785; Lewis v. Brubaker, 14 S.W.2d 988. (6) The recital in the conveyance in question that the grantors "do, by these presents, give, grant, transfer, quitclaim and forever set over" to the Justices of the County Court, and "to their successors in office forever, . . . all our right, title, claim, interest and estate in and to" the site conveyed, operated to convey the absolute title to such site. 8 R. C. L. 937 and 1059, secs. 14 and 109; Young v. Ringoes, 1 T. B. Monroe, 30; Chancellor v. Bell, 17 A. 685; Hamlin v. Meeting House, 103 Me. 343. (7) There is nothing in the granting clause of the deed to indicate an intention to convey merely a base or determinable fee. Challis on Real Property, 197; Thompson on Real Prop., sec. 2105. (8) The words, "But, upon this condition, nevertheless, that the said piece of ground by these presents given and conveyed shall be used and appropriated forever as the site on which the courthouse of the County of St. Louis shall be erected," following after the words of absolute conveyance, did not create a condition subsequent, which, upon a breach, would constitute a ground of forfeiture. 2 Devlin on Real Estate, sec. 970c; 7 R. C. L. 1086, sec. 4; 18 C. J. 357, sec. 371; 8 R. C. L. 1103, 1104, and 1119, 1120, secs. 161, 162, 181; 3 L. R. A. (N. S.) 741 Ann.; 7 L. R. A. (N. S.) 1119 Ann.; 3 Ann. Cas. 38 and Ann.; Zollmann on American Law of Charities, sec. 148; Lewis v. Brubaker, 14 S.W.2d 984; Haydon v. Railroad, 222 Mo. 139; Catron v. Scarritt Institute, 264 Mo. 713; Stilwell v. Railway, 39 Mo.App. 221; Sohier v. Trinity Church, 109 Mass. 1; Rawson v. School Dist., 7 Allen, 125, 83 Am. Dec. 670; Greene v. O'Connor, 19 L. R. A. 262; Van De Bogert v. Church, 220 N.Y.S. 50; Hinton v. Vinson, 104 S.E. 899; Koch v. Streuter, 232 Ill. 594, 83 N.E. 1072; Stuart v. City of Easton, 74 F. 854, Affd. 42 L.E. 1078; The Episcopal City Mission v. Appleton, 117 Mass. 326; Ward v. Klamath Co., 217 P. 927; Garfield Tp. v. Herman, 71 P. 517; Thornton v. City of Natchez, 129 F. 84; Freer v. Sanitarium, 115 N.Y.S. 734; Hayes v. Church, 196 Ill. 633; Mills v. Davison, 35 L. R. A. 113; Fraley v. Wilkinson, 191 P. 156; Academy v. Trustees, 47 S.W. 617; Mackenzie v. Presb'y, 3 L. R. A. 227; Fitzgerald v. Modoc Co., 164 Cal. 493. (9) Even if the deed in controversy could be construed as a conveyance on condition subsequent there has been such substantial compliance with the terms of the deed, by the maintenance of a courthouse on the site conveyed for more than one hundred years, as will void a forfeiture. 18 C. J. 372, sec. 410; Mead v. Ballard, 74 U.S. 290, 19 L.Ed. 191; Thornton v. Natchez, 129 F. 86; Rawson v. School Dist., 7 Allen, 125, 83 Am. Dec. 675; Higbee v. Rodeman, 28 N.E. 442; Griffitts v. Cope, 17 Pa. St. 99; Jordan v. Hendricks, 173 N.E. 289; Koehler v. Rowland, 275 Mo. 587. (10) Possession of the site having passed from the County Judges of the County of St. Louis, the grantees in the deed, to the city of St. Louis, under the Scheme of Separation of 1876, fee-simple title to the site is vested in the city of St. Louis by adverse possession. R. S. 1929, secs. 850, 852, 856.

OPINION

Gantt, J.

By consent these cases were consolidated for trial in the circuit court. They are suits in equity (under the statute) and by plaintiffs as heirs-at-law of Auguste and Therese Cerre Chouteau and John B. C. Lucas, who were the donors of land in the city of St. Louis on which the courthouse in said city was located. The petitions are identical and on behalf of plaintiffs and the unknown heirs or representatives of grantors who claim an interest in the land. The known heirs-at-law of said grantors are joined with the city as defendants. The petitioners prayed the court to determine the rights, claims, interests and liens of the parties in and to said land. After making certain admissions the answer of defendant city was a general denial with certain affirmative defenses. The answer of defendant Henri...