Diffenderfer v. Board of President & Directors of St. Louis Public Schools

• Decision Date: 27 February 1894
• Citation: 25 S.W. 542,120 Mo. 447
• Parties: Diffenderfer et al. v. Board of President and Directors of St. Louis Public Schools, Appellant
• Court: Missouri Supreme Court

25 S.W. 542

120 Mo. 447

Diffenderfer et al. v. Board of President and Directors of St. Louis Public Schools, Appellant

Supreme Court of Missouri, Second Division

February 27, 1894

Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon Judge.

Reversed and remanded.

Charles B. Stark for appellant.

(1) It is a matter resting in the sound discretion of the court to grant or refuse a decree for a specific performance of a contract, and it will always be denied where it would be harsh, oppressive or inequitable under all the circumstances to grant it. Taylor v. Williams, 45 Mo. 80; Southworth v. Hopkins, 11 Mo. 331; Verth v Gierth, 92 Mo. 97; Willard v. Tayloe, 75 U.S 557; McElroy v. Maxwell, 101 Mo. 294. (2) The renewal demanded is in the form of an option, and hence lacks mutuality. The court will refuse the relief prayed for that reason alone. Glass v. Rowe, 103 Mo. 513. (3) The property in controversy is a highly favored trust fund of which the appellant is the trustee. Charter of the Board, Act of February 13, 1833; Constitution 1820, art. 6, sec. 1; Veal v. County Court, 15 Mo. 412; County v. Auchley, 103 Mo. 492; Board v. Boyd, 58 Mo. 276. (4) This is a parcel of the property which the people have favored so highly, even in their constitutions, as to declare it shall be forever "preserved from waste" and "sacredly preserved as a public school fund." Constitution of 1820, art. 6, sec. 1; constitution of 1875, art. 11, sec. 6. (5) It would be a violation of this constitutional inhibition against waste for the court to compel this trustee to practically give way the inheritance of the trust estate for a yearly rental equal to six per cent. interest on a valuation fixed for taxation which is notoriously much below its real value. Veal v. County Court, 15 Mo. 412; Atty. Gen. v. Owen, 10 Ves. Jr. 555; Atty. Gen. v. Hatham, 1 Turner & Russell, 209; Atty. Gen. v. Foord, 6 Beavan, 288; Atty. Gen. v. Brooke, 18 Ves. Jr. 319; 1 Wood's L. & T. [2 Ed.], sec. 174. (6) The appellant is a public corporation of whose charter and nature the courts take judicial notice. Charter of Board, act of February 13, 1833, sec. 13. (7) This being an application against a trustee to compel the renewal of a term of such long duration, the burden is on the respondents to show it to be reasonable, and that fact not appearing affirmatively, the relief sought must be denied. Atty. Gen. v. Hatham, 1 Turner & Russell, 209; Atty. Gen. v. Foord, 6 Beavan, 288; Taylor's L. & T. [8 Ed.], sec. 132; Wood's L. & T. [2 Ed.], sec. 174. (8) The covenant relied on in this case is not supported by any independent and substantial consideration and will therefore not be enforced. 1 Taylor's L. & T. [8 Ed.], sec. 338; 2 Wood's L. & T. [2 Ed.], sec. 413. (9) In any event, one renewal is all the respondents are entitled to under the covenant in controversy. 2 Wood's L. & T. [2 Ed.], 236, sec. 413; Taylor's L. & T., sec. 333.

E. T. Farish for respondents.

(1) This is a proceeding in equity for a specific performance. The assignees of the lessee having performed the condition which entitled them to a renewal of the lease, and the landlord refusing to renew, the said assignees had a right to elect whether they should proceed at law for damages, or in equity for a specific performance. Arnot v. Alexander, 44 Mo. 25. And in such case a court of equity may compel the lessee to give a lease as agreed. Strohmaier v. Zeppenfeld, 3 Mo.App. 429; Hug v. Van Burkleo, 58 Mo. 202. (2) That the appellant is a trustee of a highly favored trust is no reason why it should enjoy an immunity from carrying out and living up to its covenants. "The right of renewal constitutes a part of the tenant's interest in the land, and the grant of the additional term is for many purposes considered as a continuation of the former lease." Winslow v. Tighe, 2 Ball & Beat., 195-205; Rawe v. Chichester, 2 Amb. 715-719; Randall v. Russell, 3 Meriv. 197. "No particular form of words is necessary to constitute a covenant for renewal. The question is what the good sense of the contract seems to be." Crawford v. Kastner, 26 Hun, 440.

OPINION

Burgess, J.

This is a suit in equity by plaintiffs for a specific performance of a covenant for the renewal of a lease demising public school realty, lying in the city of St. Louis, for a term of fifty years from the first day of September, 1840. The covenant contained in the old lease is as follows:

"And it is covenanted and agreed, by and between the said parties, that at the end of the term hereby demised, this lease shall be renewable at the option of the party of the second part, his executors, administrators or assigns, he or they giving to the party of the first part, in every instance, a notice in writing of his or their wish to renew the same, three months, at least, before the end of the term. And every renewed lease shall contain all the covenants, agreements, clauses and stipulations herein contained, with this exception only, that the annual rents to be reserved on every renewal shall be six per centum upon the value of the demised premises, exclusive of any improvements thereon placed, which value shall be estimated by the public assessor of the city of St. Louis, for the time being, at the commencement of the renewed term, and to be paid quarterly."

The case was submitted to the court on an agreed state of facts, which is as follows:

"For the purpose of a trial of the above entitled cause, and for no other purpose whatever, it is hereby stipulated and agreed as follows:

"That the defendant made a lease to William Lindsay, dated the thirty-first day of August, 1840 (a certified copy of which is referred to and made part of this agreement as exhibit A).

"That under and in pursuance of said lease, said William Lindsay entered into the possession of the property described in said lease.

"That said Lindsay departed this life prior to 1869, leaving as his sole heirs, Mary Bogue, Annie Lindsay, Margaret Lindsay and Eliza Sweeny, and that the plaintiffs in this case by divers mesne conveyances acquired all the estate of said Lindsay and his heirs in and to said property, and that as such owners they entered into and held possession of said property and the improvements thereon.

"That more than three months prior to the first day of September, 1890, the plaintiffs, being desirous of a renewal of said lease for a further term of fifty years, expressed their intention so to do by giving the defendant a notice in writing to renew said lease, as by said lease required.

"And the public assessor of the city of St. Louis, under and in pursuance of the terms and stipulations of said lease, estimated the value of said demised premises, exclusive of any improvements, on the first day of September, 1890, to be $ 3,250, or $ 130 per front foot on Broadway, making the rental, at six per cent. on said value, the sum of $ 195 per year.

"And in response to the notice aforesaid, the defendant notified the plaintiffs that, whilst it did not concede their rights to any renewal, it was willing to execute exhibit B, which is hereto annexed and made a part hereof, which plaintiffs declined to accept, and subsequently, on the twenty-first day of October, 1890, executed, and tendered to defendant for execution by it, exhibit C, which is hereto annexed and made a part hereof, but which defendant declined to execute.

"The amount in dispute in this case, exclusive of costs, exceeds the sum of $ 2,500, as a lease of said premises for one term of fifty years is of greater value than $ 3,000."

Exhibit B, referred to in the agreed statement of facts, was a lease of one term of fifty years only without any right of renewal, while exhibit C was a lease for fifty years subject to renewal at the expiration of that time at the pleasure of the plaintiffs or their assigns. The covenant for the renewal of the lease referred to in exhibit A is as heretofore set forth.

It is claimed by defendant that it is a trustee of a highly favored trust fund, and that a lease of the property for so long a time as fifty years would therefore constitute a breach of trust, and that a court of equity will not by its decree compel the commission of a breach of trust. And furthermore that a renewal of the lease for fifty years was to give to the lessees the perpetual enjoyment of the trust estate, a gift of inheritance, which is beyond the powers of the trustees, and which courts have no jurisdiction or discretion to compel.

No question is raised as to the power of the board to execute the old lease, and, even if there was, such power is conferred by the act of the general assembly of this state, entitled "An act to establish a corporation in the city of St. Louis, for the purpose of public education," approved February 13, 1833. The same power still exists in the defendants in their official capacity.

The agreed statement of facts shows that plaintiffs, as assignees of the old lease, have done all that was required of the lessees by the terms of the instrument, and are entitled to have it renewed, unless the position of defendant is well taken. Hug v. Van Burkleo, 58 Mo. 202; Strohmaier v. Zeppenfeld, 3 Mo.App. 429; Crawford v. Kastner, 26 Hun 440.

Where by the terms of the covenant perpetual renewal of the lease is plainly expressed or implied, they must receive a reasonable construction and be enforced. Hare v Burges, 4 Kay & J. (Eng.) 45; Crawford v. Kastner, supra. There is no room for doubt as to the right of the lessees or the plaintiffs herein who have succeeded thereto by...