Lackland v. Hadley

• Decision Date: 02 July 1914
• Docket Number: No. 15298.,15298.
• Citation: 169 S.W. 275,260 Mo. 539
• Parties: LACKLAND et al. v. HADLEY, Atty. Gen., et al.
• Court: Missouri Supreme Court

169 S.W. 275

260 Mo. 539

LACKLAND et al. v. HADLEY, Atty. Gen., et al.

No. 15298.

Supreme Court of Missouri.

July 2, 1914.

Rehearing Denied July 14, 1914.

DEEDS (§ 168) — CONDITIONS — REMEDY FOR BREACH.

S. conveyed to the city of St. Louis a tract of land, containing conditions, among others, that all the tract shall be used as a public park, except the outer rim thereof, of a width of 200 feet, designated on the plat for leasing "on long leases for villa residences, which should be an ornament to the park, and source of revenue," and that the city shall, from time to time, lease said strip, in lots of designated size, for periods of 30 years before renewal, for villa residences, and pay over the rents to S. and his assigns, and providing for the property reverting if any of the conditions be violated; a subsequent deed of S. provided that nonperformance by the city of the conditions as to such strip shall not work a forfeiture as to the rest of the land, but expressly reserved to himself and assigns right, on any willful violation by the city of the condition as to leasing and paying the rents, to enforce performance thereof. Held, that while such strip, the fee to which is vested in the city, was intended to be an ornament to the park, the city has the duty of attempting, in good faith, to rent it, and of renting it, if it can get any substantial rent, for ornamental villa residences, and, when rented, of paying over the rents, and that there is reserved a right at least to enforce this duty, where there has been a willful neglect thereof, but there can be no relief, under a petition in equity by the assignees under the will of S. not only not alleging willful neglect, but proceeding on the theory that the property cannot be so rented, and praying for its sale and payment of the proceeds to them, whether the provision as to renting be a condition subsequent, or a mere covenant or agreement of the grantee.

In Banc. Appeal from St. Louis Circuit Court; Matt G. Reynolds, Judge.

Suit by Rufus J. Lackland and others, constituting the Board of Trustees of the Missouri Botanical Garden, against Herbert S. Hadley, Attorney General of the State, and others. From a decree for defendants, plaintiffs appeal. Reversed and dismissed.

The board of trustees of the Missouri Botanical Garden created by the will of Henry Shaw, which was probated on the 21st day of September, 1889, brought this suit in equity to procure a decree declaring a trust for their benefit in a strip of land 200 feet wide, which, and other lands surrounded by it, was conveyed by Henry Shaw, in pursuance of an act of the Legislature of March 9, 1867 (Laws 1867, p. 172) for the establishment of Tower Grove Park, to the city of St. Louis by his deed of October 20, 1868, and a grant in confirmation, July 9, 1872. Said act of the General Assembly provided for the government of said park a board of commissioners consisting of from five to seven persons, of which board Mr. Henry Shaw was to be a member during his life, with the power of appointment of all other members. Said act gave the board power to prescribe rules and pass ordinances for the regulation of the park, and made a violation of such ordinances a misdemeanor. It required the city of St. Louis to issue and sell bonds aggregating $360,000, whose proceeds should be paid over to said board and applied by it to the improvement and administration of the park. It further required the city of St. Louis to provide by general taxation an annual maintenance fund of $25,000, to begin three years after the passage of the act. And it exempted all the land conveyed by Mr. Shaw in pursuance of its provisions from every form of taxation, and provided that such lands should be held in fee by the said city of St. Louis, and authorized said city to issue bonds for $50,000 for the purchase of certain adjoining lands, if needful.

Henry Shaw executed an indenture with the mayor of the city of St. Louis October 20, 1868, whereby he conveyed to it the lands by the same description given to them in the act of the Legislature, and the city assumed the covenants required of it by said act. Said indenture conveyed 276.76 acres, and located on this tract an outer rim of 200 feet wide, with openings or passageways to the inner park (as shown on a plat of the whole tract conveyed, which accompanied the deed and was made a part thereof) for leasing "upon long leases for villa residences, which should be an ornament to the park and source of revenue." The deed then vested the whole tract, to wit:

"To have and to hold the same unto the said city of St. Louis in absolute property in fee so long as the said city shall conform and comply with the following conditions annexed to said grant, to wit:

"First, that all of said tract of land hereby annexed except the aforesaid strip, two hundred feet in width shall be and remain and be used and managed as a public park for the health, well-being and enjoyment of the citizens of said city and county of St. Louis, forever. That no portion of said park shall ever be used for any other purposes than those appertaining properly to such public park nor shall any revenue ever be raised from the use of any portion of said park except such as may be consistent with its said purpose and use and which revenue shall go to the maintenance of said park through the board of commissioners.

"Second, that the city of St. Louis shall within ____ months from the date hereof pay over the proceeds of the bonds of the city of St. Louis authorized to be issued * * * and * * * sold to the board of `the commissioners of the Tower Grove Park' as mentioned and authorized to be formed by the second and third sections of said act which said board as authorized by said board act shall be composed of the said Shaw, and all the following persons by him now selected and named thereof, to wit: Adolphus Meier, Wm. F. Ferguson, Charles P. Chouteau and James S. Thomas.

"Third, that after the money so raised by the sale of said bonds shall have been expended in the laying out and embellishing and constructing said park there shall be expended each year the sum of twenty-five thousand dollars in special funds, the keeping up, maintaining and improving the said park.

"Fourth, that the provisions of said act as to construction, appointment and the filling of vacancies in the board of commissioners of said park shall forever remain inviolate.

"Fifth, that the board of commissioners of the Tower Grove Park shall from time to time cause to be leased the said strip of land 200 feet in width so surrounding said park in convenient lots not to exceed 200 feet in front, nor less than one hundred feet to any one person for periods of 30 years before renewal for the purpose of erecting villa residences thereon only and all the gross rents received from said leases without deduction shall be forever paid over to said Henry Shaw and to his heirs, executors, administrators and assigns so that he and they shall forever enjoy said rents and the city shall execute the proper leases therefor which shall contain a clause that there shall be only one residence on each tract so leased. And whereas by said act of the General Assembly of the city of St. Louis authorized to purchase land adjoining the property hereby conveyed to form part of Tower Grove Park as is hereby understood and expressly agreed that if said city shall hereafter purchase for the aforesaid purpose the parcel of land owned by the heirs of the late Thomas Jefferson Payne. Bounded west by the King's highway and north by Magnolia avenue as intended to be extended in a right line to the King's highway, the said strip of land of two hundred feet in width hereinbefore mentioned as far as the same may adjoin said land of said Payne shall be used for said park and a like strip of land to be taken from said land purchased as aforesaid from said Payne shall be substituted therefor for said leasing purposes so that the said strip of two hundred feet in width to be leased as aforesaid shall surround said Tower Grove Park, so extended in the northwestern corner thereof. It is hereby expressly provided and this conveyance is made upon the express condition that if said conditions upon which said conveyance is made or any of them shall be violated in the lifetime of said Henry Shaw, the said property and all improvements thereon shall at once revert to said Shaw, and absolutely vest in him in fee as if the conveyance had not been made and if said conditions or any of them shall be violated after the death of said Shaw, then the said estate hereby conveyed and all improvements therein shall go to and be vested in whomsoever said Shaw may appoint for the use of the Missouri Botanical Garden or directly in said Garden whenever the said is incorporated as authorized by law, to hold directly in his own name and for its own use. The said party of the second part hereby covenants to and with the said party of the first part that they will perform and fulfill the conditions and agreements herein before mentioned.

                  "[Seal]    In testimony Whereof the said
                party of the first part has hereunto set his hand
                and seal and said party of the second part has
                caused the same to be signed by its mayor and
                countersigned by its register and its corporate
                seal to be hereto attached the day and year first
                aforesaid.           Henry Shaw. [Seal.]
                                    "James S. Thomas, Mayor
                  "Attest: I. W. Heath, City Register."
                

The supplemental deed is, to wit:

"Whereas Henry Shaw of the city of St. Louis did convey by deed dated 20th October, 1868 and recorded in the recorder's office of St. Louis county in Book 370, page 421, to the city of St. Louis a certain tract of land containing two hundred and seventy six and 76-100 acres of which tract two hundred and two 02-100 acres were donated for a public park and the gates and approaches thereto and seventy-four 74-100 acres were by said city of...