Fordyce v. Woman's Christian National Library Association

• Citation: 96 S.W. 155,79 Ark. 550
• Parties: FORDYCE v. WOMAN'S CHRISTIAN NATIONAL LIBRARY ASSOCIATION
• Decision Date: 02 July 1906
• Court: Supreme Court of Arkansas

96 S.W. 155

79 Ark. 550

FORDYCE v. WOMAN'S CHRISTIAN NATIONAL LIBRARY ASSOCIATION

Supreme Court of Arkansas

July 2, 1906

Appeal from Garland Circuit Court; Alexander M. Duffie, Judge affirmed.

STATEMENT BY THE COURT.

On the 29th day of June, 1881, several ladies filed a petition in the Garland Circuit Court, praying that they might be incorporated under the name of the "Woman's Christian National Library Association" "for the purpose of establishing, providing and keeping in the City of Hot Springs, Garland County, Arkansas, library for the free use of the public generally, and of soliciting and receiving donations and aid for said purposes."

The constitution presented with the petition was preceded by the following preamble:

"We whose names are annexed, desiring to form an association to organize a reading-room and library for our own benefit, and that of the multitude of people who visit our city in search of health and pleasure, do pledge ourselves to be governed by the following constitution:"

Then follow provisions as to membership: Any lady might become a member by paying an initiation fee of two dollars annually and twenty-five cents monthly dues. Persons of either sex might become honorary members for life on payment of $ 50 and any one might become a "life patron" on payment of $ 250.

The object of the association was further stated as follows:

"The object of this association shall be to provide books newspapers and magazines of such character as will afford instruction and diversion; but such books and papers as are demoralizing in their tendency or subversive of religion shall not be admitted;" also to provide a suitable and attractive building where the literature of the association may be permanently lodged, and where suitable lectures on such subjects as are not in the field of political or theological controversy and other entertainment not in conflict with the objects of the association may be given."

Having been duly incorporated, application was made by the association to Congress for leave to erect a library building on the Government reservation at Hot Springs. This was refused; but Congress passed an act approved July 8, 1882 authorizing the association to purchase "for the use and purposes of such association" lots 11 and 12 in block 127 in the city of Hot Springs. 22 Statutes at Large, 155.

These lots, having been previously appraised by the United States, were now entered by the association on payment of $ 100, and a patent was accordingly issued by the President. The patent contains no limitation or condition except one forbidding the boring for hot water on the lots conveyed.

Preparatory to building a house on these lots for the proposed library, the association employed one Murry to excavate the rock on the mountain side, so as to secure a proper foundation; and while this work was in progress, resort was had to blasting, whereby one Thomas had his leg broken by a shattered piece of rock thrown out into the street. To recover damages for this injury, Thomas brought suit against the association in the United States Circuit Court held at Little Rock, in which he recovered a judgment for $ 7,642 on the 21st of December, 1893. Execution having issued on this judgment, the lots were sold under it, and were bought by Wood & Henderson for $ 5,000, and in due time they received the marshal's deed therefor. Wood & Henderson afterwards conveyed the lots to the appellants, Fordyce and McKee.

On the 21st of June, 1902, the Library Association brought an action in the Garland Circuit Court against Fordyce and McKee to recover the lots, alleging that the association was merely a trustee, holding them for a public and charitable use, having no beneficial interest that could be sized or sold under execution to satisfy a judgment against the association for the negligence or torts of its agent; and that the defendants intended to divert the property from its charitable uses, and to apply it to the uses of a street car line.

The defendants demurred; the demurrer was sustained, and the plaintiff appealed to this court, which reversed the judgment of the court below; but as there was not a full bench, and the judges were not agreed as to the grounds of reversal, the merits of the cause were not fully passed upon. See Woman's Christian National Library Association v. Fordyce, ante, p. 532.

On a second trial in the court below the plaintiff recovered a judgment for the lots and $ 200 for damages by reason of their detention; and defendants appealed.

Judgment affirmed.

Wood & Henderson and Ratcliffe & Fletcher, for appellants.

1. The purposes of the association are set out in its constitution and the preamble thereto, and from the undisputed record it is clear that it is not a public charitable association, within the meaning of that term. It is liable for the torts of its agents and employees, and its property, whether domicil or otherwise, is subject to execution therefor. 119 Mass. 1; 165 Mass. 280; 129 Mass. 367; 146 Mass. 163; 2 Grant's (Pa.) Cases, 75; 11 N.Y. 243; 73 Wis. 257; 2 Kent, Com. § 274. Conceded that where the public is directly interested in the operation of a corporation, and would be greatly inconvenienced by the sale of its property, as in cases of bridges, canals, docks, etc., the property can not be sold under execution; but there is a marked distinction between that class of corporations and those in which the public is but indirectly interested, such as mining and manufacturing, coal and iron companies, library, literary societies, schools, etc., and it is well settled that the entire property of the latter class may be sold. 60 Pa.St. 30 and cases cited; 29 Am. St. Rep. 514.

The association, being incorporated, under the statute, Kirby's Digest, § § 937-943, stands upon the same basis with other associations incorporated under this statue, with the same powers and corresponding liabilities.

2. The question of liability of the property of the association for debt of this kind is res judicata, that question having being decided by the U. S. court in Thomas v. Library Association. Allowance of judgment against such a corporation is an adjudication of the fact that its property is liable. 109 F. 300.

3. The exceptions to the introduction of the petition, report and proceedings of Congress prior to issuance of patent should have been sustained. The act of Congress and the patent are plain and unambiguous, showing that the association was permitted to purchase at minimum price; but neither a trust nor a condition is attached to the grant. 191 U.S. 55; 170 U.S. 383.

4. The verdict for damages is clearly excessive.

G. Davies, for appellee.

The charity under investigation in this case falls fairly within all four of the objects cited in 10 Vesey, 532, viz.: (1) Relief of the indigent in various ways. Money, provisions, education, medical assistance, etc. (2) The advancement of learning. (3) The advancement of religion, and (4) the advancement of objects of general public utility. Porter's Case, 1 Coke, 24, A.

2. As to the question of res judicata: the doctrine of estoppel is limited to facts directly in issue, and does not extend to facts which may be in controversy, but which rest in evidence and are collateral. It must appear that the matter set up in bar was in issue in the former suit. Freeman on Judg. § 257. Ib. § 258. Proceedings subsequent to judgment from distinct issues of themselves. Ib. § 327; 174 Pa.St. 355; 131 N.Y. 80. A judgment creditor has no jus in re. 17 Am. & Eng. Enc. Law, 770; Ib. 778. See also 42 Ark. 305; 1 Black on Judg. § 424; Ib. § 420; Freeman on Judg. 355; Ib. § 356; 21 Ill. 104; 25 Ill. 221; 27 Ill. 277; 2 Freeman on Judg. § 357; 15 Ia. 400; 105 N.Y. 7; 53 Am. Dec. 701, note.

3. Authorities cited by appellants in support of their contention that the property of appellee is liable do not apply to the facts in this case, or refer to trading or other corporations which were in no proper sense public charities.

U. M. ROSE. MCCULLOCH, J., dissents.

OPINION

U. M. ROSE, Special Judge, (after stating the facts).

1. We are convinced that this is a case of a charitable trust. We are referred to the decision in Old South Society v. Crocker, 119 Mass. 1; but that is not in point. In that case the court found that a trust was declared for "beneficiaries, which were the grantees themselves and such as they should associate to themselves." The court was influenced by the further limitation in the deed "to their heirs and successors," implying "that the grantor contemplated a permanence of association of the cestuis que trust." The court added: "Gifts for the erection of a house of public worship, or for the uses of the ministry, may constitute a public charity, if there is no definite body, for whose use the gift was intended capable of receiving, holding and using it in the manner intended. To give it the character of a public charity, there must appear to be some benefit to be conferred upon, or duty to be performed towards, either the public at large, or some part thereof, or an indefinite class of persons." Page 22.

In this case one of the objects of the association is to "organize a reading-room and library for our own benefit, and that of the multitude of people who visit our city in search of health and pleasure." This clause does designate an indefinite class of persons. It is plain enough that the phrase "for our own benefit" is not to be understood as confined to the persons who signed the petition for a charter, but was intended to embrace all persons who should thereafter contribute to the support of the library by becoming members of the association. This was also an indefinite class of persons. It certainly does not...