Chouteau v. City of St. Louis

• Decision Date: 16 December 1932
• Parties: Henri Chouteau, Appellant, v. City of St. Louis, a Municipal Corporation, and the Unknown Heirs and Descendants, Devisees and Grantees, Immediate, Mesne and Remote, of Auguste Chouteau and Therese Cerre Chouteau, his wife, and of John B. C. Lucas
• Court: Missouri Supreme Court

55 S.W.2d 299

331 Mo. 781

Henri Chouteau, Appellant, v. City of St. Louis, a Municipal Corporation, and the Unknown Heirs and Descendants, Devisees and Grantees, Immediate, Mesne and Remote, of Auguste Chouteau and Therese Cerre Chouteau, his wife, and of John B. C. Lucas

Supreme Court of Missouri

December 16, 1932

Appeal from Circuit Court of City of St. Louis; Hon. Claude O Pearcy, Judge.

Affirmed.

H Chouteau Dyer and J. Raymond Dyer for appellant.

(1) Any trust created under the deed in question was a dry trust executed by the Statute of Uses. R. S. 1929, sec. 303; Blumenthal v. Blumenthal, 251 Mo. 693; Pugh v Hayes, 113 Mo. 424. (a) The fact that the grant may have fulfilled a public need and hence be considered charitable does not preclude plaintiff from recovery. Zollman; Am. Law of Charities, sec. 639; 5 R. C. L. 338-339, sec. 68; 11 C. J 325, sec. 36; Stuart v. Easton, 74 F. 854; Morristown v. Morristown, 82 N.J.Eq. 521; Catron v. Scarritt Institute, 264 Mo. 713; Norton v. Valentine, 135 N.Y.S. 1084. (b) Even though the grant be considered charitable the allegation of abandonment requires a reversal of the lower court's decision. Strother v. Barrow, 246 Mo. 241; Golding v. Gaither, 113 Md. 187; People v. Braucher, 258 Ill. 604. (2) In construing deeds the controlling canon of construction is to ascertain the meaning of the grantor from the words used in the light of circumstances which surrounded, attended and waited upon his use of them. Long v. Timms, 107 Mo. 512; Aldridge v. Aldridge, 202 Mo. 565; Speed v. Railroad, 163 Mo. 111. (a) The intent of the grantor having thus been determined the deed must be construed in conformity with it. Murphy v. Carlin, 113 Mo. 112. (b) The official circumstances surrounding the making of the deed indicate an intention on the part of the grantors to limit and condition their grant. Deed of Acceptance, Book M, p. 421, Office of Recorder, St. Louis; 1st Session of 2d Gen'l Assembly (Mo.), Chap. XL., p. 63 (1820 Ed., Laws of Missouri). (c) The circumstances personal to the grantors surrounding the making of the deed indicate the same intention. Plat of Lucas and Chouteau Addition, Book F, p. 2, Office of Recorder, St. Louis. (d) The additional canon of construction for deeds, requiring them to be construed as acted upon, requires a construction in conformity with plaintiff's contentions. Patterson v. Camden, 25 Mo. 13; Jones v. De Lassus, 84 Mo. 541; Gas Light Co. v. St. Louis, 46 Mo. 121. (e) Inasmuch as a condition rather than a purpose is declared, the deed does not convey an absolute fee simple title. Hand v. St. Louis, 158 Mo. 204. (f) Inferences to be properly drawn from the position of the deed of acceptance on the parchment, antedating and preceding the deed of conveyance, coupled with requirements of the act and the peculiar spelling of the word "site" in both deeds, indicate a previous preparation by the grantees of the deed of conveyance which requires it to be construed against them. 4 Thompson: Real Prop., sec. 3166; 2 Tiffany: Real Prop. (2 Ed.) p. 1618. (g) The deed must be construed in favor of the grantors for the additional reason that the grant was a gratuitous one. 8 R. C. L. 1104, sec. 161; Rawson v. School District, 7 Allen, 125; Flaten v. City of Moorehead, 51 Minn. 518, 19 L. R. A. 195; Hudson: Conditions Subsequent in Conveyances in Missouri: Univ. Mo. Bulletin, 5 Law Series 1; Wood v. Kice, 103 Mo. 329; Tracy v. Bittle, 213 Mo. 302. (h) This rule is particularly applicable where, as here, the gratuitous grant was for a public purpose. Papst v. Hamilton, 133 Cal. 631, 66 P. 10; May v. Boston, 158 Mass. 21. (i) The conditional language of the deed cannot be construed as but imposing a covenant on the part of the grantees. Clark v. Inhabitants of Brookfield, 81 Mo. 503; Upington v. Corrigan, 151 N.Y. 143, 45 N.E. 359. (j) The fact that the land was granted and forever set over to trustees and their successors forever does not indicate that an absolute fee simple was passed, inasmuch as the grant was conditioned and qualified to a specified use forever. 2 Bl. Com. 107; Slegel v. Herbine, 148 Pa. 236, 15 L. R. A. 547; Gannon v. Peterson, 193 Ill. 372, 55 L. R. A. 701; 4 Thompson: Real Prop., secs. 3317, 3318; 2 Tiffany: Real Prop. (2 Ed.) sec. 437. (k) Since the granting clause qualifies the habendum clause the estate granted must be either a determinable fee or a conditional fee. 4 Thompson: Real Prop., sec. 3320; Jamaica Pond Aqueduct Co. v. Chandler, 9 Allen, 159. (3) The estate granted was that of a determinable fee since it might have endured forever or might revert on the happening of the contingency of nonuser of the property as the courthouse site. Wiggins Ferry Co. v. Ry. Co., 94 Ill. 83; Mendenhall v. Church Society, 177 Ind. 336; Jordan v. Goldman, 1 Okla. 406. (4) All the legal characteristics and requirements necessary to the creation of a determinable fee are present in the deed in question. 1 Washburn: Real Prop. (6 Ed.) secs. 162, 164, 165, 167, 170; 1 Tiffany: Real Prop. (2 Ed.), sec. 93; 3 Thompson; Real Prop., sec. 2105; Goodeve: Modern Law of Real Prop. (3 Ed.) p. 81. (a) The future tense is used. (b) The requirement of use of the property presupposing and including the requirement of erection of any building threon is emphasized. (c) The qualifying clause is made part of the description of the estate granted. Goodeve: Modern Law of Real Prop. (3 Ed.) p. 180; Challis: Real Prop. (1885), p. 206; 3 Thompson: Real Prop. sec. 1966; Chapin v. Harris, 8 Allen, 594. (d) There is no needless reservation of a right to regain. Adams v. Lindell, 5 Mo.App. 197, affirmed 72 Mo. 198; 2 Devlin: Deeds (3 Ed.) sec. 974. (e) Though conditional words are used, they are such as may create a determinable fee. Challis: Real Prop. (1885), pp. 198, 201-206; Black: Law Dict.; Tiedeman: Real Prop. (4 Ed.) sec. 211; Diamond v. Rotan, 58 Tex. Civ. App. 263; Attorney-General v. Pyle, 1 A. 435. (5) The works of legal writers having to do with determinable fees support plaintiff's contention that such was conveyed by the deed in question. Richard R. B. Powell, 23 Colo. L. Rep. 206; Manley O. Hudson: "Conditions Subsequent in Conveyances in Missouri," Univ. of Mo. Bulletin, 5 Law Series 1. (6) The cases having to do with determinable fees support plaintiff's contention that such was conveyed by the deed in question. First Universalist Society v. Boland, 155 Mass. 171, 15 L. R. A. 231; Denver Railroad Co. v. School District, 14 Colo. 327; Watson v. Tracy, 77 Ind.App. 163; Pond v. Douglas, 106 Me. 85; Lyford v. City of Laconia, 75 N.H. 220; Savings Institute v. Roxbury Home, 244 Mass. 583; Board of Freeholders v. Buck, 79 N.J.Eq. 472; Low v. Thompson, 109 N.Y.S. 750; Re Machu (1882), 21 Ch. D. 838; Collier v. Walters (1873), L. R. 17 Eq. 252; Henderson v. Hunter, 59 Pa. 335; Kirk v. King, 3 Pa. 436; Bolling v. Petersburg, 8 Leigh, 224; Police Jury v. Reeves, 6 Mart. 221; North v. Graham, 235 Ill. 178, 18 L. R. A. (N. S.) 624; McIntire v. Dietrich, 294 Ill. 126; Stubbs v. Abel, 114 Ore. 610. (7) Defendant city took the property from its predecessor in title subject to the same determinable quality which characterized it in the hands of the first holder. Boye v. Boye, 300 Ill. 508; Gout v. Townsend, 2 Denio, 336; Riner v. Fallis, 176 Ky. 575; Fox v. Van Fleet, 160 Ky. 796. (8) The possibility of reverter passed to plaintiff, as an heir of the grantors, by right of representation. 1 Washburn: Real Prop. (6 Ed.) sec. 171; Puffer v. Clark, 202 Mich. 169. (9) The rule against perpetuities has nothing to do with determinable fees. 24 Halsbury's Laws of England (1912), p. 171; Gray: Rule Against Perpetuities (2 Ed.) p. 312; Attorney-General v. Cummins (1906), 1 Ir. Ch. 409; French v. Old South Society, 106 Mass. 479; Seymor's Case, 10 Co. Reports 95 b. (10) The doctrine of reverter by reason of the impossibility of future use of the propery as the courthouse site is applicable by reason of the allegation of its abandonment as such as ordered by lawful authority. 3 Dillon: Municipal Corporations (5 Ed.) sec. 1106; Goode v. St. Louis, 113 Mo. 257; Gaskins v. Williams, 235 Mo. 563. (11) The law in Missouri supports plaintiff's contention that the estate conveyed was that of a determinable fee. Dumey v. Schoeffler, 24 Mo. 170; Hoselton v. Hoselton, 166 Mo. 182; Gaskins v. Williams, 235 Mo. 563; Hudson: "Conditions Subsequent in Conveyances in Missouri," Univ. of Mo. Bulletin, 5 Law Series 1. Bredell v. Westminster College, 242 Mo. 317; Hoke v. Farmers Club, 194 Mo. 576. (12) The estate granted may be considered as that of a conditional fee, inasmuch as express words of condition are used. Powell: 23 Colo. L. Rep. 206; Challis on Real Prop. (1885), p. 206; Weinreich v. Weinreich, 18 Mo.App. 364; Dissent in Stillwell v. St. Louis Railroad Co., 39 Mo.App. 231; Kales: Future Interests (2 Ed.) sec. 222. (a) Words of re-entry are not necessary to the creation of a conditional fee. Brooks v. Gaffin, 192 Mo. 228; Smith v. Mercantile Co., 170 Mo.App. 27; Catron v. Scarritt Institute, 264 Mo. 713; Church of the Holy Ghost v. Schreiber, 277 Mo. 113; Ruddick v. St. Louis etc., Railroad Co., 116 Mo. 25; Gray v. Blanchard, 8 Pick. 283. (b) Where express words of condition are used, as in the deed in question, there can be no room for construction. Papst v. Hamilton, 133 Cal. 631; Brown v. Chicago etc., Railroad, 82 N.W. 1003; Adams v. Valentine, 33 F. 1; Hammond v. Port Royal Railroad, 15 S.C. 10; Blanchard v. Mich. Railroad, 31 Mich. 43. (13) Defendant city's contention that a substantial compliance with the requirements of the deed renders plaintiff's petition demurrable has no foundation when the deed is construed as having conveyed a determinable fee. (a) Construing the deed as conveying a conditional fee,...