Moberly v. City of Trenton
| Decision Date | 25 May 1904 |
| Citation | 81 S.W. 169,181 Mo. 637 |
| Parties | MOBERLY, Appellant, v. CITY OF TRENTON |
| Court | Missouri Supreme Court |
Appeal from Grundy Circuit Court. -- Hon. J. W. Peery, Special Judge.
Affirmed.
Hall & Hall for appellant.
(1) The sole consideration of the conveyance from appellant and her husband of the land in controversy was the condition that the town, now city of Trenton, should improve and forever use said lands as a public park, which should bear the names of the donors. This deed unquestionably created an express condition subsequent, and the title to the property vested and remained in the city only so long as it continued to improve and forever use it as a public park, and when it ceased to do so, the title reverted to the donors, devisees or their assigns. 2 Devlin on Deeds (2 Ed.), secs. 958, 964; 2 Washburn on Real Property (4 Ed.), secs. 2, 3; Tiedeman on Real Property, secs. 271, 272, 273, 277, 863; Scoville v McMahon, 62 Conn. 378, 36 Amer. St. 350; Cross v Carson, 8 Black. 138, 44 Amer. Dec. 742; Farnham v Thompson, 34 Minn. 331, 57 Amer. 59; Langley v. Chapin, 134 Mass. 82; Ecroyd v. Coggeshall, 21 R. I. 1, 41 A. 260; 79 Amer. S. 741; Baker v. St. Louis, 7 Mo.App. 429, 75 Mo. 671; Messersmith v. Messersmith, 22 Mo. 372; Clark v. Brookfield, 81 Mo. 503; Cummings v. St. Louis, 90 Mo. 261; Ellis v. Kyger, 90 Mo. 605; O'Brien v. Wagner, 94 Mo. 96; Historical Society v. Academy of Science, 94 Mo. 459; Avery v. Railroad, 113 Mo. 561; Stoddard v. Wells, 120 Mo. 29; Weinreich v. Weinreich, 18 Mo.App. 370; Campbell v. Kansas City, 102 Mo. 326; Railroad v. Frowein, 163 Mo. 17; 6 Am. and Eng. Ency. Law (2 Ed.), 503; Hand v. St. Louis, 158 Mo. 209; Thomas v. Record, 47 Me. 500, 74 Amer. Dec. 500; Raley v. Umatilla County, 15 Ore. 172, 3 Amer. S. 142; Blanchard v. Railroad, 31 Mich. 43, 18 Amer. 148; Mott v. Danville Seminary, 129 Ill. 415. (2) The condition in the Moberly deed being express, it was not necessary that the right of entry should be expressly reserved. It follows as a necessary incident to the condition and passes with the land, into whosoever hands it may come. Ruddick v. Railroad, 116 Mo. 31; Tiedeman on Real Property, secs. 277, 863; 2 Washburn on Real Property (4 Ed.), sec. 15; Farnham v. Thompson, 24 Minn. 38, 57 Amer. 66; Rawson v. School District No. 5, 7 Allen 125; 83 Amer. Dec. 670; Hubbard v. Railroad, 63 Mo. 68; Trustees v. New York, 173 N.Y. 38, 65 N.E. 855. A grant may be on condition subsequent where no express words are used. Gratz v. Railroad, 165 Mo. 218. (3) Where the grantee or donee abandons all use of the property which was in any way beneficial to the donor or grantor or to his assigns, and the consideration for the conveyance or donation has ceased, and the limitation upon which the defendant obtained the use of the estate has ceased, then there was a legal abandonment. Campbell v. Kansas City, 102 Mo. 326; Railroad v. Frowein, 163 Mo. 19. (4) While ejectment is the proper remedy for condition broken, an action in equity will lie to remove the cloud upon appellant's title, and may be joined in a separate count of the same petition. Moore v. Wingate, 53 Mo. 411; Ridgeway v. Herbert, 150 Mo. 619; Boothe v. Lay, 83 Mo.App. 601; R. S. 1899, sec. 593.
O. G. Williams and O. G. Bain & Son for respondent.
(1) The language of this deed does not create a condition subsequent. Stillwell v. Railroad, 39 Mo.App. 221; Stoddard v. Wells, 120 Mo. 25; Anderson v. Gains, 156 Mo. 664; Hand v. St. Louis, 158 Mo. 204. The mere use of the words "upon condition," and like expressions, does not necessarily create an estate upon condition. 1 Jones on Real Prop. & Convey., secs. 641-642; Stillwell v. Railroad, 39 Mo.App. 221; Green v. O'Conner, 19 L. R. A. 262; Neely v. Haskins, 84 Me. 386; Stanley v. Colt, 72 U.S. (5 Wall.) 119; Sohie v. Trinity Church, 109 Mass. 1; Episcopal City, etc., v. Appelton, 117 Mass. 329; Avery v. Railroad, 12 N.E. 619; Post v. Weil, 22 N.E. 145, 12 Am. St. Rep.; Graves v. Deterling, 120 N.Y. 447, 24 N.E. 655; Paschall v. Passmore, 15 Pa. St. 295; Bacon v. Huntington, 14 Conn. 92; Worman v. Teagarten, 2 Ohio St. 380; Farnham v. Thompson, 57 Am. 59; Stillwell v. Kanapper, 35 Am. 240; Mills v. Davidson, 35 L. R. A. 113; Killpatrick v. Baltimore, 27 L. R. A. 643. Conditions subsequent in deeds are not favored in law and when relied on to work a forfeiture must be created in express terms or by clear implication. They will in no case be enforced if the words can be given any other reasonable construction. 2 Devlin on Deeds, 970, and notes 4 and 5; 1 Jones on Real Prop. and Conv., sec. 632; 4 Kent Com. (10 Ed.), 150; Tiedeman on Real Property, 273; Stoddard v. Wells, 120 Mo. 25; McKelways v. Seymour, 29 N. J. L. 321; Morrill v. Railroad, 96 Mo. 174; Weinreich v. Weinreich, 18 Mo.App. 364; Higby v. Rodeman, 28 N.E. 442; Ludlow v. Railroad, 12 Barb. 440; Laberee v. Carleton, 53 Me. 211; Boon v. Clark, 129 Ill. 466, 21 N.E. 850; Lyon v. Hersly, 103 N.Y. 264, 8 N.E. 518; Morrifield v. Cobleigh, 4 Cush. 184; Hoyt v. Kimball, 49 N.H. 322. And whenever it is doubtful whether a condition subsequent is meant to be created, courts will construe the instrument against such interpretation. Rawson v. School District, 7 Allen 125, 83 Am. Dec. 670; Paschall v. Passmore, 15 Pa. St. (3 Harris) 295; Stillwell v. Railroad, 39 Mo.App. 221; Weinreich v. Weinreich, 18 Mo.App. 364; Morrill v. Railroad, 96 Mo. 174; Stoddard v. Wells, 120 Mo. 25; Roanoke Inv. v. Railroad, 108 Mo. 50. (2) The conveyance from George W. Moberly and wife to the town of Trenton created a public trust. 2 Washburn on Real Property (4 Ed.), pp. 3-4; Sugden on Powers (7 Lond. Ed.), 123; 1 Jonse on Real Property and Conv., secs. 649, 650; Anderson v. Gains, 156 Mo. 664; Hand v. St. Louis, 158 Mo. 204; Weinrich v. Weinrich, 18 Mo.App. 372; Neely v. Haskins, 84 Me. 386, 24 A. 882; Rawson v. School Dist., 7 Allen 125, 83 Am. Dec. 670; Packard v. Ames, 16 Gray 327; Sohier v. Trinity Church, 109 Mass. 19; Horner v. Railroad, 38 Wis. 175; Espiscopal City v. Appleton, 117 Mass. 329; Green v. O'Connor, 19 L. R. A. 262; Mills v. Davidson, 35 L. R. A. 113; Stanley v. Colt, 5 Wall. 166, 72 U.S. 119. And if a breach of trust has occurred the proper remedy is to compel a continued observance of the use and not a forfeiture of the trust property. 2 Dillon on Mun. Corp. (4 Ed.), sec. 653; Rutherford v. Taylor, 38 Mo. 315; Good v. St. Louis, 113 Mo. 257; Hand v. St. Louis, 158 Mo. 204; Barclay v. Howell's Lessee, 6 Pet. 498; Coffin v. Portland, 27 F. 412, 17 P. 580; Cummings v. St. Louis, 90 Mo. 259. (3) Even if plaintiff were able to show that this deed created a condition subsequent, and in addition that it had been sufficiently violated to work a forfeiture, yet the right to re-enter and declare a forfeiture of a condition subsequent can only be exercised by the grantor and his heirs. 6 Am. and Eng. Ency. Law (2 Ed.), 506; 2 Washburn on Real Property (4 Ed.), p. 13; 4 Kent Com., 56-126; 2 Devlin on Deeds, 969; Moore v. Wingate, 53 Mo. 398; Jones v. Railroad, 79 Mo. 92; Towne v. Bowers, 81 Mo. 497; Clark v. Brookfield, 81 Mo. 503; Ellis v. Keiger, 90 Mo. 600; Obnin v. Wagner, 94 Mo. 93; Missouri Historical Society v. Academy of Science, 94 Mo. 459; Nicoll v. Railroad, 12 N.Y. 121; Upington v. Corrigan, 37 L. R. A. 794, 151 N.Y. 143; Schullingburg v. Harriman, 21 Wall. 63. Plaintiff, being the wife of George W. Moberly, and suing neither as a grantor nor as an heir, but merely as a residuary legatee, can not maintain this suit. Trustees v. Venable, 159 Ill. 215, 42 N.E. 836; Copeland v. Copeland, 89 Ind. 29; Jones v. Railroad, 79 Mo. 92; Moore v. Wingate, 53 Mo. 411; Den ex-dem Southard v. Railroad, 26 N. J. L. 13. (4) After the city received the property under the deed and used and improved it as a park for eighteen years, up to the filing of this suit, and has complied with the spirit and purpose of the deed, a court of equity will not permit plaintiff to re-enter and declare a forfeiture. Higby v. Rodeman, 28 N.E. 443; Summer v. Darnell, 27 N.E. 162; Railroad v. Barbour, 89 Ind. 37; Heaston v. Board, 20 Ind. 398; Hunt v. Beeson, 18 Ind. 380. (5) Appellant in this case has no right to demand of the trial court a special finding of facts, for the reason that she did not file her motion for same before judgment was rendered. R. S. 1899, sec. 695; Butts v. Ruby, 85 Mo.App. 405; Hamilton v. Armstrong, 120 Mo. 597; Young v. Stephens, 66 Mo.App. 222; Leavitt v. Taylor, 63 S.W. 385; Kostube v. Miller, 137 Mo. 173; Bailey v. Emerson, 87 Mo.App. 225; Freman v. Hemmenway, 75 Mo.App. 621; Lowen v. Forsee, 137 Mo. 29.
The plaintiff sues to recover twenty acres of land in the city of Trenton which formerly belonged to her husband, George W. Moberly, now deceased, and which in 1882 he conveyed to the city by deed of gift for the purpose of making it a public park. The plaintiff, as wife, joined in the deed. Immediately following the granting clause in the deed is the following: "Upon condition that said town of Trenton shall improve and forever use said tract of land as a public park." There were other requirements in the deed under that head which are not material to be now considered. Geo. W. Moberly died in 1886 leaving a will in which no mention was made of this land, but the plaintiff was made residuary legatee and devisee of all his estate not otherwise disposed of.
The petition is in two counts.
In the first count the plaintiff states that the defendant city has failed to perform the condition on which the deed to the city was made, in that it has failed to improve and use the land for a park and has abandoned it, and has allowed it to become not only unattractive as a public park, but a...
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