Elliott v. City of Louisville

• Decision Date: 14 February 1906
• Citation: 123 Ky. 278,90 S.W. 990
• Parties: ELLIOTT v. CITY OF LOUISVILLE et al.
• Court: Kentucky Court of Appeals

90 S.W. 990

123 Ky. 278

ELLIOTT v. CITY OF LOUISVILLE et al.

Court of Appeals of Kentucky.

February 14, 1906

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division.

"To be officially reported."

Action by Sue Browne Elliott against the city of Louisville and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

McDermott & Ray and E. E. McKay, for appellant.

A. E Richards, for appellee city of Louisville. Kohn, Baird &amp Spindle, for appellee board of park commissioners. A. S Brandeis, for other appellees.

SETTLE J.

In June, 1868, T. D. Elliott owned a tract of land west of and just beyond the then corporate limits of the city of Louisville. Having in view its sale, he laid it off into squares, lots, and streets and made a map thereof, which he caused to be recorded in the Jefferson county clerk's office, thereby dedicating the streets to public use and indicating the squares and lots for sale; each square being numbered. Upon this map one square, situated near the center of the tract, was given the number 8 and designated "Elliott Park." Soon after the recording of the map a number of citizens of Louisville, through the firm of John Schmidt, Schwartz & Co., purchased of Elliott at the price of $39,662 all the lands east of Twenty-Ninth street, as shown on the map, except square 8, known as "Elliott Park." The lots thus sold surrounded square 8 on all sides, save on the west. Elliott did not convey the lands sold by a joint deed to the purchasers, for they, as among themselves, made a division of the land; each paying for what he got his proportion of the gross consideration, and each receiving of Elliott and wife a deed of conveyance to his part of the land acquired in the division. All these deeds bear date October 1, 1868, and were put to record immediately thereafter. At the time the deeds referred to were executed the following written contract was entered into by Elliott and wife and the several purchasers mentioned: "This agreement, made the 1st day of October, A. D. 1868, by and between Theodore D. Elliott and his wife, Susan, of the first part, and Samuel Brandeis, Theodore Schwartz and his wife Anna A. Schwartz, Columbus Brookenbrough, Charles L. Francke, Ernest C. Bohne, Gustavus T. Bergman, Julius Winter, William G. Meier, Ferdinand J. Pfingst, Lewis Heimke, Frederick Johnson, and George Zoeller, of the second part, witnesseth: That the said parties for valuable considerations, hereby admitted, agree, first, that the lands this day conveyed by the parties of the first part to the parties of the second part in severalty, except the said T. Schwartz, are conveyed subject to a lease made by said T. D.

Elliott, and which is to expire on the 5th day of March, 1869; second, that the square 8 in said Elliott West End addition to Louisville shall be held by the said T. D. Elliott for a public square, and that the parties of the second part will inclose it and plant it with trees for that purpose, and that when the said square shall be included within the city limits the said T. D. Elliott will convey the same to the city of Louisville for a public square, if the said city will agree to accept and maintain it as such. In testimony whereof the said parties hereto set their hands. The said Susan joins herein in order to relinquish her contingent right of dower." The foregoing writing was signed and acknowledged by all the parties named therein and duly recorded.

T. D. Elliott died in 1877, testate, leaving a large estate, of which his wife became the owner as sole devisee under his will. T. D. Elliott before his death and his widow after his death made several sales of lots from "Elliott's West End Addition," in the deeds to which they were described as parcels of certain blocks in such addition, by reference to the map of record in the clerk's office. The city of Louisville took no steps to extend its boundary, so as to include square 8, until 1895. At that time the extension of a boundary was made, and Elliott Park, together with other contiguous territory, was taken within the corporate limits of the city. After the extension of the territorial boundary of the city, so as to include Elliott Park, its common council, by ordinance approved August 2, 1900, accepted it as a public park in accordance with the grant of 1868 from Elliott and wife. The ordinance in question is as follows: "Be it ordained that square 8 [describing it] be and the same is hereby accepted as a public square or park of the city of Louisville, to be known and called 'Elliott Park,' and the city of Louisville hereby agrees to maintain said square of ground as a public square or park in accordance with the terms and conditions contained in the said written agreement between said Theodore D. Elliott and wife, of the first part, and Samuel Brandeis and others, of the other part, dated October 1, 1868."

This action was instituted by appellant, the widow of T. D. Elliott, against the city of Louisville, its park commissioners, and the parties to the contract of October 1, 1868, for the purpose of having the court declare void that contract and quiet appellant's title to Elliott Park, upon the grounds that the parties thereto, other than appellant, had failed to comply with their part of the contract, and that the appellee city of Louisville had failed to extend its boundary so as to include Elliott Park within proper or reasonable time. By an amended petition filed January 16, 1904, Jacob Seibert and Ernest C. Bohne, both owners of real estate adjacent to Elliott Park, and the latter a party to the contract of 1868, were made parties defendant to the action and asked to be required to defend for all persons who might have an interest in the property and matters in litigation. By other amendments from time to time additional property holders in the neighborhood of the park, who had received deeds from appellant or her husband, were also made defendants and called upon to answer. The answers of appellees, by appropriate denial and averment, resisted the right of appellant to the relief sought; also the extension of the boundary of the city of Louisville so as to include Elliott Square and its acceptance as a park by the city, and set forth the performance of the contract of 1868 by the grantees therein; insisted that appellant be required to convey by proper deed to the city of Louisville and her park commissioners Elliott Square as and for a public park, as provided by the written contract of October 1, 1868. After the taking of much proof by the parties the case was submitted, and the learned chancellor having it in hand, being of opinion that appellant was not entitled to the relief demanded, rendered judgment dismissing the action and decreeing a conveyance of Elliott Park to appellees city of Louisville and its board of park commissioners, and the reversal of that judgment is sought on this appeal.

It is contended for appellant that the contract of October, 1868, was violated by the parties with whom it was made; that the laches of the parties intended to be benefited and of the city of Louisville constituted an abandonment of the contract, which authorized its repudiation by appellant; that she did repudiate it, and by her resulting adverse possession of Elliott Park acquire a perfect title thereto; and that the alleged trust created by the contract in question is not enforceable because barred by limitation.

We think the writing of October 1, 1868, was a declaration of trust executed by T. D. Elliott and wife for a valuable consideration, and the trust is not affected by the fact that Elliott was himself made the trustee. In Perry on Trusts, § 95, it is said: "Where an agreement is entered into for a valuable consideration, and a trust is intended, the mere form of the instrument is not material; for, if the trust is not perfectly created or executed by the instrument, a court of equity can enforce it as a contract. *** The authorities establish the proposition that,...