Clarke v. Sisters of Society of Holy Child Jesus

• Decision Date: 26 June 1908
• Docket Number: 15,635
• Citation: 117 N.W. 107,82 Neb. 85
• Parties: THOMAS CLARKE ET AL., APPELLANTS, v. SISTERS OF SOCIETY OF THE HOLY CHILD JESUS ET AL., APPELLEES
• Court: Nebraska Supreme Court

117 N.W. 107

82 Neb. 85

THOMAS CLARKE ET AL., APPELLANTS, v. SISTERS OF SOCIETY OF THE HOLY CHILD JESUS ET AL., APPELLEES

No. 15,635

Supreme Court of Nebraska

June 26, 1908

APPEAL from the district court for Lancaster county: WILLARD E STEWART, JUDGE. Affirmed.

AFFIRMED.

Morning & Ledwith, for appellants.

T. J Doyle and G. L. De Lacy, contra.

DUFFIE C. EPPERSON and GOOD, CC., concur.

OPINION

DUFFIE, C.

This case was submitted to the district court on an agreed statement of facts. Judgment went in favor of the defendants, and the plaintiffs have taken an appeal to this court.

The facts appearing from the stipulation are as follows: November 29, 1884, John Fitzgerald conveyed to the Sisters of the Society of the Holy Child Jesus, a Nebraska corporation, a block of land located at Fourteenth and U streets, in the city of Lincoln. The granting part of the deed is in the following language: "Know all men by these presents, that John Fitzgerald and Mary Fitzgerald, his wife, of the county of Lancaster, and state of Nebraska, for and in consideration of the establishment and maintenance of a convent school on the property herein, do hereby grant, bargain, sell, convey and confirm unto the Sisters of the Society of the Holy Child Jesus, of the county of Lancaster, and state of Nebraska, the following described real estate situated in Lincoln, in Lancaster county, and state of Nebraska, to wit." Here follows a description of the land conveyed. The deed contains the following condition: "One of the conditions upon which this property is conveyed is that the grantee herein hereby agrees to teach the parochial school children (whose parents are known to be unable to pay) free of charge, and if the grantee herein should fail to use the said property for convent school purposes, or refuse to teach the parochial school children as agreed above, or shall divert said property to any other use, then the said property herein conveyed shall revert to and be the property of the grantor, if living, and, if dead, to his heirs." The grantee established a convent school upon the premises and maintained the same until June, 1907. In October, 1907, the grantee abandoned the property and declined to maintain a school upon the same in the future. The grantor, John Fitzgerald, departed this life intestate in 1894. The defendants, other than the grantee named in said deed, are heirs of the deceased, and they reentered the property soon after the same was abandoned by the grantee. November 8, 1907, the grantee conveyed the premises to the heirs of John Fitzgerald, deceased; said deed reciting the permanent abandonment of the property. After the establishment of the convent school on the property in dispute, another society, the Sisters of Charity, established a parochial school at Thirteenth and M streets, in the city of Lincoln, known as "St. Theresa's Parochial School." The establishment of the last named school removed the necessity for the education of the poor in the convent school free of charge; such children being taken care of by St. Theresa's Parochial School. Under these circumstances, Fitzgerald and his grantee entered into a contract in June, 1888, modifying the terms of the deed by which the premises were conveyed to the Sisters of the Society of the Holy Child Jesus. By this last contract the clause in the deed, by which the grantee agreed to teach the parochial children whose parents were known to be unable to pay free of charge, was changed so that it was relieved of that duty; the contract reciting the following: "The grantee herein and hereby agrees to teach the parochial school children whose parents are unable to pay in St. Theresa's Parochial School upon the usual terms." The contract provided for a further modification of the deed as follows: "If the property described in said deed shall ever, in the judgment of the grantors or grantees, become inadequate or unsuited for the purposes for which the said property is deeded, then the grantees shall have power and authority to sell, pass title and execute deeds of conveyance thereto, upon condition, however, that the proceeds arising from said sale shall be reinvested in other property, which shall be used for the purposes known in said deed of conveyance. The said deed as thus modified shall be and remain in full force as though these changes had never been made." On the abandonment of the property by the Sisters, and after reentry by the heirs of John Fitzgerald, the heirs instituted partition proceedings, which resulted in a judgment of partition and an order for the sale of the property. On the day of the sale, on January, 1908, the plaintiffs instituted this action for themselves, and others similarly situated, insisting that the conveyance by Fitzgerald and the conditions contained in the deed providing for the teaching of poor catholic children without charge was a conveyance in trust for the perpetual benefit of all parents of the catholic faith having children of school age.

The petition alleges that plaintiffs belong to the class specified in the deed, and they pray a cancelation of the reconveyance by the grantee to the heirs of John Fitzgerald; that the sale be enjoined and a trustee appointed for the purpose, and with power under the direction and supervision of the court to arrange for the permanent reopening and establishment of said convent school, and for the education or free instruction of the poor children of the city of Lincoln in harmony with the terms and conditions of the trust.

On the part of the plaintiffs, it is claimed: First, that the deed from Fitzgerald, together...