Heustess v. Huntingdon College

• Decision Date: 22 January 1942
• Docket Number: 3 Div. 363
• Citation: 242 Ala. 272,5 So.2d 777
• Parties: HEUSTESS v. HUNTINGTON COLLEGE et al
• Court: Alabama Supreme Court

5 So.2d 777

242 Ala. 272

HEUSTESS v. HUNTINGTON COLLEGE et al

3 Div. 363

Supreme Court of Alabama

January 22, 1942

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Thos. B. Hill, Jr. and Wm. Inge Hill, both of Montgomery, for appellant.

Ball & Ball, of Montgomery, for appellees.

FOSTER Justice.

The parties to this cause seek a declaratory judgment of the court to determine the right and power of Huntingdon College a corporation, which owns and conducts a college for women under the jurisdiction of the Alabama Methodist Conferences to sell and convey two certain lots which it owns.

Those lots are situated on the west side of Bankhead Avenue in the city of Montgomery, as extended by the city from Woodley Road north through the property of Huntingdon College to Fairview Avenue. The college acquired ownership of the lots in question from two sources. The western portion of them, apparently about three-fourths of their area, was acquired by a deed to it (under the former name of the college, as incorporated), made by the Anti-Tuberculosis League, a corporation, in which there are no restrictions or limitations. So that as to that portion of the area there is no complication which restricts the right of the college to sell and convey the property. We will designate it as the "T.B." area. The eastern portion of those lots which is adjacent to Bankhead Avenue, as extended, is on the extreme western portion of a lot of fifty-eight acres of land which was acquired from John G. Thomas and wife by deed of May 13, 1907. We will designate this as the "Thomas tract." Bankhead Avenue did not extend through this property when it was acquired. The "Thomas tract" was one continuous area of fifty-eight acres between what is now Fairview Avenue on the north, Woodley Road on the south and Narrow Lane Road on the east and the "T.B." area on the west. The extension of Bankhead Avenue separated the lots in question, especially this extreme western portion of the said fifty-eight acres from the rest of it. It is on that portion of it which lies east of this avenue that all the college improvements are made, and that part of it so separated is not used or useful for educational purposes.

The deed whereby the "Thomas tract" was acquired was on the condition that "the premises shall be used, kept, maintained and disposed of as a place for the education of white women."

The purpose is to sell the lots in question to secure money to be applied on the general indebtedness of the college. The buildings, land and equipment of the college are estimated to be worth $900,000.00, all east of said Bankhead Avenue. It owes approximately $129,000, secured by mortgage on property, not including the lots here involved. The proceeds of the sale are to be applied on that debt. There is to be no restriction on the use of the property by the purchaser on account of the Thomas deed.

The right to sell property made in trust for charitable purposes has many angles. A difference is noted between lands to be actually used for the charity itself and those which are set apart to provide a fund for such use. This court has adopted the principle that when land is conveyed for the use of the charity itself, a sale ordinarily cannot be effected even by authority of a court of equity. Lovelace v. Marion Institute, 215 Ala. 271, 110 So. 381. See Dallas Art League v. Weaver, 240 Ala. 432, 199 So. 831.

But if the condition of the conveyance is that it is "for the uses and benefit of" the charity so designated, there is a right to sell pursuant to the rules which apply to that situation. Street v. Pitts, 238 Ala. 531, 192 So. 258, 259.

We will assume for the purpose of this discussion that the deeds mean that the property shall be used for the named purpose, regardless of who may own it.

The doctrine of approximation, as applied to such a status, has not only been approved by our Court through a line of our cases, Lovelace v. Marion Institute, supra; Dunn v Ellisor, 225 Ala. 15, 141 So. 700; King v. Banks, 220 Ala. 274, 124 So. 871; Noble v. First National Bank, 236 Ala. 499, 183 So. 393, but it has been enacted without substantial change into a statute, Code of 1923, section 10438, Code of 1940, Title 58, section 57, and is there thus stated: "In all cases where real estate is held by a trust created by deed, and by reason of a change of circumstances, or in the condition of such real estate since the creation of such trust, the execution thereof in exact accordance with the terms of such deed has or shall become impossible, or must necessarily fail to secure the objects manifestly intended by the grantor in said deed, the circuit court in equity in the county wherein such real estate is situated may, on the complaint of the trustee or any party beneficially interested in the trust, order the sale of said real estate, or any part thereof, and the investment of the proceeds, either in other real estate or as trust funds generally may be by law invested, for the benefit of the party beneficially interested in such trust, in such manner as said court may deem the most proper to secure the object for which said trust was originally created, as near as may be, according to the intent of the original grantor appearing in the original deed. All parties...