Lewis v. Brubaker

• Decision Date: 02 March 1929
• Docket Number: No. 26973.,26973.
• Parties: ALBERT A. LEWIS ET AL., Appellants, v. J.A. BRUBAKER ET AL.
• Court: Missouri Supreme Court

14 S.W.2d 982

ALBERT A. LEWIS ET AL., Appellants, v. J.A. BRUBAKER ET AL.

No. 26973.

Supreme Court of Missouri, Division Two.

March 2, 1929.

Appeal from Jackson Circuit Court. — Hon. Samuel A. Dew, Judge.

AFFIRMED.

Marcy K. Brown and Marcy K. Brown, Jr., for respondent.

(1) The deed of April 30, 1866, was void and passed no title. The trial court therefore erred in finding for respondents upon and dismissing count one of appellants' petition. (a) Such a deed was prohibited by the Constitution of Missouri, 1865, because it was declared void unless the land granted was for the sole purpose of the erection of a church or residence for the minister thereon, and the sole use of the same for these purposes. Art. 1, secs. 12, 13, Constitution 1865; Catholic Church v. Tobbein, 82 Mo. 424; First Baptist Church v. Robberson, 71 Mo. 331; Schmucker's Estate v. Reel, 61 Mo. 592; Kenrick v. Cole, 61 Mo. 572. (b) The deed must be governed by the law in force at the time of execution. Frame v. Humphreys, 164 Mo. 336; 18 C.J. 251, sec. 195, note 17. (c) The constitutional prohibition extends to the deed itself, not part of it. The void portions are therefore not separable and the whole deed is void. Art. 1, secs. 12, 13, Constitution 1865. The deed clearly shows on its face that is for other purposes than those permitted by the Constitution. (d) The intent of the grantor must be gathered from a fair consideration of the whole deed. Adams v. Cemetery Co., 192 S.W. (Mo.) 946; Tennison v. Walker, 190 S.W. (Mo.) 9; Utter v. Sidman, 170 Mo. 294; Jennings v. Brizeadine, 44 Mo. 332. (e) Because the Constitution of 1875 did not contain the same prohibitions as the Constitution of 1865, cannot validate the deed. Art. 1, sec. 13, Constitution 1875; State ex rel. v. Dirckx, 211 Mo. 568; Mining Co. v. Osmun, 82 Mich. 573; Banaz v. Smith, 33 Cal. 102. (f) The deed being void, no title has ever passed and the title still remains in the heirs of the original grantors. Because the possession has not been adverse, neither commencing nor continuing hostile. McCune v. Goodwillie, 204 Mo. 339; Lynde v. Williams, 68 Mo. 369; Thomas v. Babb, 45 Mo. 384; Lapeyre v. Paul, 47 Mo. 590; Hamilton v. Boggess, 63 Mo. 233; Gordon v. Eans, 97 Mo. 587; Hunnewell v. Burchett, 152 Mo. 611; Heckescher v. Cooper, 203 Mo. 293; Meier v. Meier, 105 Mo. 431; Baber v. Henderson, 156 Mo. 573; Alexander v. Polk, 39 Miss. 755. Because by common law and by statute respondent's holding of the property is that of a tenant at will. Sec. 2167, R.S. 1919; Reid v. Gees, 210 S.W. (Mo.) 880; 24 Cyc. 1039, 1040; 35 C.J. 1124, sec. 344; 1126, sec. 347; 1127, sec. 353; Rogers v. Hill, 64 S.W. (Mo.) 536; Bay St. Louis v. Hancock Co., 80 Miss. 364; Ezelle v. Parker, 41 Miss. 520; Bond v. Beverly, 152 N.C. 56. And they are therefore estopped to deny the title of appellants. Because statutes of limitations do not apply to church property. Sec. 1314, R.S. 1919; 2 C.J. 225, par. 476; Strother v. Barrow, 246 Mo. 241. (2) The court erred in finding for respondents upon and dismissing count two of appellants' petition, because the deed of April 30, 1866, was void and the property reverts to the heirs. Schmucker's Estate v. Reel, 61 Mo. 592; Kenrick v. Cole, 61 Mo. 572; First Baptist Church v. Robberson, 71 Mo. 326. (3) The court erred in finding for respondents upon and dismissing count two of appellants' petition, because even assuming the deed of April 30, 1866, to be valid, the property reverts to the heirs upon condition broken. (a) The deed of April 30, 1866, was a conditional deed, conditioned as to uses and purposes by the terms of the Constitution of 1865. Art. 1, secs. 12, 13, Constitution 1865. And by the terms of the deed itself. Par. 5 of deed. (b) When conditions as to the uses and purposes for which land given or granted for trust purposes may be put are incorporated in the deed, by the express terms of a constitutional provision or law affecting the grant, upon condition broken, the property reverts to the heirs of the grantor, even though no express words of reversion are contained in the grant, if and when, by their actions, the trustees of the trust wilfully misuse the property in derogation of the prohibitions of that constitution or law, or in derogation of the expressed purposes of the trust contained in the deed. Strother v. Barrow, 246 Mo. 241; Scott v. Sipe, 12 Ind. 74; Sherman v. Town of Jefferson, 274 Ill. 294; Cone v. Wold, 85 Minn. 302; Stewart v. Easton, 170 U.S. 383; Sheets v. Fitzwater, 5 Pa. St. 126; McDaniel v. Watson, 67 Ky. (4 Bush.) 234; Kennedy v. McElroy, 92 Ky. 72; Pickle v. McKissick, 21 Pa. 232; Second Universalist Church v. Dugan, 65 Md. 460. Or when the trustees of the trust property deliberately abandon the property from the legal uses to which it may be put, whether such legal uses are enforced by constitution, statute or terms of the deed. Strother v. Barrow, 246 Mo. 241; Campbell v. City of Kansas, 102 Mo. 326; Bates v. Muskegon Co. Assn., 181 Mich. 71; Appeal of Gumbert, 110 Pa. St. 496; Brendel v. Reformed Congregation, 9 C.C.A. 415: Roanoke Inv. Co. v. Railroad Co., 108 Mo. 50. Or in the event the gift or grant is void and against public policy, because in violation of constitutional or statutory provisions. Schmucker's Estate v. Reel, 61 Mo. 592; Kenrick v. Cole, 61 Mo. 572; Proctor v. Trustees M.E. Church, 225 Mo. 51; Re McGraw, 111 N.Y. 66; Camp v. Dobbins, 31 N.J. Eq. 690. Or when the particular uses upon which the gift or grant was made have failed. St. Louis v. McAllister, 257 S.W. (Mo.) 425; Hopkins v. Grimshaw, 165 U.S. 342; Esterbrook v. Tillingshast, 5 Gray (Mass.) 17. Or when, because of peculiar facts in the case, a court of equity is of the opinion from the acts of the parties and the object, language or spirit of the deed, forfeiture and reversion should be decreed. Reynolds v. Reynolds, 136 S.W. (Mo.) 412; Hayden v. Railroad, 121 S.W. (Mo.) 15. (4) The court erred in finding for respondents upon and dismissing count three of appellants' petition, because even assuming the deed of April 30, 1866, to be valid, a resulting trust accrues in favor of the heirs upon condition broken. Hopkins v. Grimshaw, 165 U.S. 342; St. Louis v. McAllister, 257 S.W. (Mo.) 425. (5) The court erred in finding for respondents upon and dismissing count four of appellants' petition, because upon the evidence appellants conclusively established a right to equitable relief and an injunction preventing the use of the property involved in a manner contrary to the Constitution and laws of Missouri, contrary to the terms of the grant to respondents' predecessors and contrary to the usage and discipline of the Methodist Episcopal Church. Mott v. Morris, 249 Mo. 137; Perry v. McEwen, 22 Ind. 440; Scott v. Stipe, 12 Ind. 74; Brunnenmeyer v. Buhre, 32 Ill. 183; Avery v. Baker, 27 Neb. 388; Cape Trustees v. Plymouth Church, 130 Wis. 174; First Methodist Church v. Dixon, 178 Ill. 260. (6) Appellants are proper parties to bring this suit. St. Louis v. McAllister, 257 S.W. (Mo.) 425; Mott v. Morris. 249 Mo. 137; Campbell v. Kansas City, 102 Mo. 326; Proctor v. Board of Trustees, 225 Mo. 51; First Baptist Church v. Robberson, 71 Mo. 326; Women's Christian Assn. v. Kansas City, 147 Mo. 103; Tyree v. Bingham, 100 Mo. 451. (7) The doctrine of cy pres has no application to this case. This is so because: (a) The doctrine is always invoked by a suit filed for that purpose. First Methodist Church v. Dixon, 178 Ill. 260. (b) Respondent trustees may not effect their own conversion and secure judicial sanction thereafter. The judicial sanction must come first. Quaker Town Bldg. v. Township Board. 84 N.J. Eq. 112; McKenzie v. Jersey City Presbytery, 67 N.J. Eq. 652; In re Compden, 18 Ch. Div. 310. (c) No general charitable intention is disclosed in the deed, even if the same is considered a valid deed. St. Louis v. McAllister, 257 S.W. 425; Adams on Equity (5 Am. Ed.) par. 71; Story (11 Ed.) 461, par. 1182. (d) No situation has arisen whereby a literal compliance with terms of the trust, if valid, is impossible or impracticable. Lackland v. Walker, 151 Mo. 210; Women's Christian Assn. v. Kansas City, 147 Mo. 103; Cory Library v. Bliss, 151 Mass. 364; McKenzie v. Jersey City Presbytery. 67 N.J. Eq. 652; 11 C.J. 360, par. 77. (e) The nature of the trust or charity, even if valid, cannot be diverted to another trust of a different character. Catron v. Scarritt Collegiate Inst. 175 S.W. (Mo.) 571.

Meservey, Michaels, Blackmar, Newkirk & Eager, Wilfley, Williams, McIntyre & Nelson, Johnson, Lucas & Graves and Daniel C. Ketchum for respondents.

(1) The deed of April 30, 1866, conveyed to the church trustees an indefeasible estate in fee simple; it was not repugnant to the 1865 Constitution. Dudley v. Clark, 255 Mo. 588; Glaze v. Allen (Mo.), 213 S.W. 784; First Methodist Church v. Berryman, 303 Mo. 475; Stewart v. Easton, 170 U.S. 397; Constitution 1865, Art. 1, secs. 12, 13; Constitution 1875, Art. 2, sec. 8; Art. 15, sec. 13; State ex rel. Lashly v. Becker, 290 Mo. 583; Rydzewski v. Grace Church, 145 Md. 531; R.S. 1919, sec. 2265. (2) The action is barred by the statutes of limitations. R.S. 1919, secs. 1305, 1311; Dudley v. Clark, 255 Mo. 570; Quick v. Rufe, 164 Mo. 408; Dunnington v. Hudson, 217 Mo. 93; Woodside v. Durham (Mo.), 295 S.W. 772; Ogle v. Hignet, 161 Mo. 47; Hamilton v. Boggess, 63 Mo. 233; Campbell v. Greer, 209 Mo. 199; Regents v. Methodist Church, 104 Md. 635; Harpending v. Reformed Church, 16 Pet. 455; 34 Cyc. 1150. (3) There has been no non-user or abandonment of the premises. The building of the offices was vital to the life of the church. Strother v. Barrow, 246 Mo. 241; First Methodist Church v. Berryman, 303 Mo. 475. (4) However the case may be viewed the plaintiffs have no standing in court for any purpose; and their petition states no cause of action. Glaze v. Allen (Mo.), 213 S.W. 784; Mott v. Morris, 249 Mo. 137; Lackland v. Walker, 151 Mo....