Missouri Historical Soc. v. Academy of Science

• Citation: 94 Mo. 459,8 S.W. 346
• Parties: MISSOURI HISTORICAL SOC. v. ACADEMY OF SCIENCE OF ST. LOUIS et al.
• Decision Date: 20 February 1888
• Court: United States State Supreme Court of Missouri

8 S.W. 346

94 Mo. 459

MISSOURI HISTORICAL SOC. v. ACADEMY OF SCIENCE OF ST. LOUIS et al.

Supreme Court of Missouri.

February 20, 1888.

1. DEED — CONDITION SUBSEQUENT — HOW ENFORCED.

A condition subsequent in a deed can only be made operative to defeat the grant by entry by the grantor or his heirs for condition broken; and it is not sufficient for the grantor to obtain a surreptitious attornment from the tenant of the grantee, and to induce such tenant to accept a lease from him.

2. CHARITIES — GIFT TO SCIENTIFIC INSTITUTIONS.

A gift of real estate in Missouri to the Missouri Historical Society and the Academy of Science of St. Louis, being for the promotion of science, the education and benefit of mankind, and the diffusion of useful knowledge, is valid as a charity, though not so denominated in the deed of gift.

3. SAME — POWER OF COURT OF EQUITY — CY PRES — TRUSTS.

A court of equity has power to decree a sale of real estate conveyed jointly to two charitable institutions, for the purpose of erecting a building thereon for their joint use, and to authorize each society to use its portion of the proceeds of sale in the erection of a separate building for its own purposes; it being impracticable, from the location and surroundings of the property, to build upon an use it jointly, as intended by the donor, this power being the exercise of the equitable doctrine of cy pres, and inherent in a court of equity as part of its jurisdiction over trusts, independent of St. 43 Eliz. c. 4, concerning charities.

Appeal from St. Louis circuit court; GEORGE W. LUBKE, Judge.

Suit in equity by the Missouri Historical Society against the Academy of Science of St. Louis and others, for sale of a city lot granted to said institutions jointly for their joint use, and to have the proceeds divided, with liberty to each society to use its part separately; it being found impracticable to carry out specifically the intention of the donor. There was a decree below in accordance with the prayer of the bill, and defendants appealed.

W. H. Clopton, for appellants. M. L. Gray, for respondent.

SHERWOOD, J.

This proceeding in equity was instituted for the purpose of asserting and having enforced the rights of plaintiff and of the Academy of Science in a certain lot in the city of St. Louis, which lot was conveyed to the said institutions by deed of J. H. Lucas, dated in 1872, and by a deed from his heirs in 1878. The deed of J. H. Lucas was accepted by the said societies by indorsement on the deed, possession taken of the lot, and the tenant of Lucas attorned to the societies, with his consent, and such tenant accepted a lease from them thereunder, and paid them rent, and such rent was paid by him and his successors down to the time and after plaintiff instituted this proceeding; the societies mean while paying taxes. The petition, after setting forth that the deed of Lucas gave the grantees the privilege of selling the lot, and applying the proceeds to the purpose of erecting a building, etc., goes on to state that, though the conditions in the first deed were not complied with, yet that the heirs waived that condition by their quitclaim deed of 1878 to Engleman et al., on condition that they, within three years after that deed should be filed for record, should erect a building, etc., and that said period had not elapsed, as said deed had not been so filed for record. It is further set forth in the petition "that it has been found impracticable to erect on said lot a building or buildings adapted to the uses and purposes of said two corporations jointly, because of the extent of said lot; it being too small to answer said purposes, and it being impossible to procure additional land adjoining, as said lot is bounded on the east and south by alleys, and on the west by Christ Church, and the intent of the donor cannot be literally carried out by erecting a building thereon suitable for the uses and purposes of said societies, and it is further impracticable from its location and surroundings. That the two societies wish to have separate buildings; and that, in the accomplishment of these purposes, the plaintiff has taken steps looking to the erection of a building of its own at some more desirable location. That, as the literal and exact purpose of the grantors (James H. Lucas and wife) in said deed cannot now be carried out for the erection of a building or buildings on said lot, or otherwise, for joint occupancy and purposes of said two corporations, the plaintiff prays the court, as a court of equity, to frame and decree a new scheme for the use of said lot, or its proceeds, to-wit: To order sale in partition, and a division of the proceeds of such sale, and authorize, by proper decree, the plaintiff to use its share in said lot, or its proceeds, in the erection of a suitable separate building, and likewise to authorize the Academy of Science, etc. The answer of the Academy of Science was an admission of the allegations contained in the petition, and proper decrees were asked. The answer of John B. Johnson et al. is that the Missouri Historical Society was not incorporated until the 24th of February, 1875, and that the conveyance of 1872 was void. Defendants pleaded the conditions in the deed from James H. Lucas and wife, and the failure of the plaintiff to perform them. Defendants admitted the execution of the deed, in 1878, by them, as heirs of James H. Lucas,...