Mott v. Morris

• Decision Date: 28 March 1913
• Parties: H. B. MOTT et al., Appellants, v. LIZZIE MORRIS
• Court: Missouri Supreme Court

155 S.W. 434

249 Mo. 137

H. B. MOTT et al., Appellants, v. LIZZIE MORRIS

Supreme Court of Missouri, First Division

March 28, 1913

Appeal from Clark Circuit Court. -- Hon. Charles D. Stewart, Judge.

Affirmed (in part).

J. A Whiteside and W. T. Rutherford for appellants.

(1) This is not a case where the property is conveyed for charitable purpose leaving the courts to say how far the title to the property is restricted by its having been donated for that purpose. The grantor conveyed the property by warranty deed and by a clause in the deed, specified the restriction he placed upon the transfer of the title and it is this clause the court is called upon to construe. The clause was to prevent either of the two churches from conveying its undivided half interest in the property for other than church purposes, thereby destroying or interfering with the use of it by the other church for church purposes. Our contention is that two churches together can convey the property and make a good title whether the property is to be used for church purposes or not. In construing a deed the purpose is to ascertain the meaning of the grantor and this should be done from the words he uses. The intent of the parties to the deed should be determined. Long v Timms, 107 Mo. 519; Linville v. Grear, 165 Mo 397; Hunter v. Patterson, 142 Mo. 318; Walton v. Drumtra, 152 Mo. 497. Such construction should, if possible be adopted as to render all parts of the deed operative and harmonious. Davis v. Hess, 103 Mo. 36. If the language of the deed will admit of two constructions, the one less favorable to the grantor is to be adopted, the grantee is to be given the benefit of the doubt. Linville v. Grear, 165 Mo. 397; Bray v. Conrab, 101 Mo. 337; Nelson v. Brodhack, 44 Mo. 603. (2) There can be no forfeiture in this case. The grantor specified what restriction he placed upon the transfer of the title to the lot and strip of ground, and did not provide for any forfeiture or reverting of the title. No forfeiture can be construed unless so provided in the deed. Gratz v. Scenic Ry. Co., 165 Mo. 217; Studdard v. Wells, 120 Mo. 29; Morrill v. Railroad, 96 Mo. 179; McAnaw v. Tiffin, 143 Mo. 677.

W. L. Berkheimer, Charles Hiller and John M Dawson for respondent.

(1) The appellants have no right to sell and dispose of the property as alleged in their petition even if the respondent is not entitled to have the property revert to her and in that view of the case she asks that they be enjoined from so doing. A charity given for a particular purpose cannot be altered or diverted to any other. It must be accepted and retained upon the terms upon which it was given, and no concurrence among the donees can operate to transfer or apply it to any other purpose. McRoberts v. Moudy, 19 Mo.App. 26; 2 Story's Equity, sec. 1175; Arnold v. Brockenborough, 29 Mo.App. 625; 1 Perry on Trusts, secs. 251-254. (2) There is no provision in the deed authorizing the trustees to sell, incumber or alienate the lands therein described. Unless this power is given by the deeds the lands subject to the trust are inalienable. Lackland v. Walker, 151 Mo. 210. (3) There are other beneficiaries provided for in the deeds: "Any other orthodox or Christian denominations." This land was deeded in trust to the trustees mentioned in the deeds in trust for the purposes mentioned in the deed. The petition and proof shows that it has been abandoned by the trustees and beneficiaries. In such case the title reverts to the donor or his heirs. Henderson v. Hunter, 59 Pa. St. 335; Kirk v. King, 3 Pa. St. 436; Appeal of Gumbert, 110 Pa. St. 496; Venable v. Coffman, 2 W.Va. 310; Scott v. Stipe, 12 Ind. 74; Princeton v. Adams, 64 Mass. 129.

LAMM, J. Woodson, P. J., concurs, Graves, J., concurs in separate opinion in which Woodson, P. J., and Lamm, J., concur; Bond, J., concurs in separate opinion.

OPINION

LAMM, J.

The case is this:

In 1881 Mr. Cooper and his wife executed two deeds, for expressed nominal considerations, to five named individuals as "party of the second part," described therein as "trustees for the Methodist Episcopal Church of Wayland City and the Protestant Methodist Church of Wayland City, Clark county, Missouri." These deeds conveyed one lot and part of another in that village, and ran to the named trustees and their "successors and assigns." The habendum held the usual covenants of warranty, covenanting to "warrant and defend the title to the said premises unto the said party of the second part and unto their successors and assigns forever," etc. In the body of the deeds it is set forth that a one-half interest is conveyed to "said trustees in trust for the Methodist Episcopal Church aforesaid," and the other one-half interest is conveyed "to said trustees for the Protestant Methodist Church aforesaid." Next follows these provisions:

"This conveyance is made to said trustees, and said lot is conveyed to them for a site or lot upon which to erect a union church, to be owned and held by said trustees and their successors for the two churches above named; neither church nor its trustees are to convey away its half interest for other than church purposes.

"It is further understood and agreed that the church building to be erected on said lot when completed is to be used as a house of worship by the denominations above mentioned and when not occupied by either of said denominations, said church building may be used by any other orthodox or Christian church for public worship."

Say thirty years later seven named plaintiffs bring suit in the Clark Circuit Court. Three describe themselves as trustees of the Methodist Protestant Church, and four as trustees of the Methodist Episcopal Church, both churches being "unincorporated associations." They impleaded defendant as the only heir of the Coopers, who died intestate.

The ostensible object of the suit is to try, determine and adjudge title under former section 650, Revised Statutes 1899. To that end the fact of the execution and terms of the deeds are set forth. It is alleged that a frame church building was erected on the land and thereafter used for church purposes, and that defendant is the sole heir of the grantors. Then follows this frank allegation (in a sense, the life of the bill and proclaiming its purpose), to-wit:

"Plaintiffs further state that they no longer have any use for said premises for church purposes and now desire to sell the same to be used for other than church purposes, but are unable to do so, for the reason that the defendant, Lizzie Morris, claims to have some sort of revisionary interest in said premises, and by reason of such claim, plaintiffs are unable to sell said premises."

Defendant answered admitting that certain of the plaintiffs are trustees of the one and certain of them trustees of the other church; that both churches are unincorporated associations; that the conveyances were made by her ancestors with the provisions and for the purposes named in the bill; that a church building was erected thereon and used for church purposes; that she is the sole heir of the grantors, but denying all other allegations. It avers that no consideration was paid for the conveyances, that they were "a gift" to the named trustees for the uses and purposes mentioned in the deeds. The answer next repleads the provisions of the conveyances, setting them forth more fully than in the bill, concluding as follows:

"Defendant further answering says, that she is the only heir at law of the grantors of said lot, and has not, and never did claim any right, title or claim to said lot except as hereinafter mentioned, the reversion, to-wit: That so being the heir and daughter of the donors of said lot to said trustees, she has the right to have the wishes of her father and mother carried out so far as they are stated and requested in said deed of conveyance and that the same be not diverted or put to any use except as the wishes of her said father and mother in that behalf in said deed of conveyances expressed. She further says that there is nothing for this court to construe in said deed, as the provisions therein are plain and plainly express the purpose of the grantors therein and their express wishes as therein stated.

"Defendant further shows the court, that this suit is brought for the purpose of obtaining a decree of this court, allowing the said trustees and their successors to sell said lots and the building thereon erected to private parties for the personal purposes of said parties and not for the purpose of carrying out the wishes of said grantors, but for the express purpose of diverting said charitable trust for other and different uses and purposes than those expressed in said deed and for the purpose of diverting the uses and purposes of said charitable trust, and that the said trustees are threatening and will, unless restrained by a decree of this court, sell said lots and the buildings thereon erected to private persons for their own private uses and in direct opposition and contrary to the trust therein created by said deed.

"Wherefore this defendant asks that said deed be construed as therein provided and that this court refuse to construe said deed and the provisions thereof so as to enable said trustes and their successors in office from diverting said trust estate and from selling the same for other purposes than expressed in said trust deed and that they and their successors be forever enjoined and restrained from selling said buildings and the lots upon which they are erected to anyone or to any persons contrary to the terms of said trust as created in said deed and to vest title in defendant and for other proper relief."

The trial proceeded on admissions in pleadings and those made ...