Strother v. Barrow

• Decision Date: 30 November 1912
• Citation: 246 Mo. 241,151 S.W. 960
• Parties: STROTHER et al. v. BARROW.
• Court: Missouri Supreme Court

151 S.W. 960

246 Mo. 241

STROTHER et al. v. BARROW.

Supreme Court of Missouri, Division No. 1.

November 30, 1912.

1. APPEAL AND ERROR (§ 843) — QUESTIONS REVIEWABLE — RULING ON DEMURRER TO EVIDENCE.

An assignment complaining of the overruling of a demurrer to the evidence raising questions specified in other assignments of error fills no separate function on appeal, and will not be considered.

2. COMMON LAW (§ 7) — CHARITIES (§ 10) — ENGLISH STATUTES — ADOPTION.

The statute of charitable uses (St. 43 Eliz. c. 4) is a part of the common law of the state, but its enumeration of charities is not exclusive, and there are other objects deemed charitable in a legal sense.

3. ADVERSE POSSESSION (§ 4) — AGAINST WHOM CLAIMED — CHARITIES — "CHARITABLE USE."

A grant to trustees of a church to hold the premises in trust for the use of the congregation of the church, and in trust to control the use and occupancy of a building in process of erection on the land described for a place of worship, is a grant for a charitable use within Rev. St. 1909, § 1886, providing that limitations shall not extend to lands granted to any pious or charitable use.

4. CHARITIES (§ 30) — ABANDONMENT — EVIDENCE.

The evidence to establish abandonment of a charitable use created by deed must be clear and conclusive.

5. CHARITIES (§ 30) — ABANDONMENT OF CHARITABLE USE — ELEMENTS.

Abandonment of a charitable use involves the elements of intent to abandon permanently and the physical fact of nonuser for the charitable purpose, and the two must conjoin and operate at the same time.

6. CHARITIES (§ 30) — ABANDONMENT OF CHARITABLE USE — EVIDENCE — SUFFICIENCY.

Evidence held to support a finding that a charitable use created by a deed conveying land in trust for religious purposes was not abandoned, and limitations did not run against the land conveyed.

7. APPEAL AND ERROR (§ 1010) — FINDINGS — CONCLUSIVENESS.

A finding sustained by testimony is conclusive on appeal.

8. CHARITIES (§§ 10, 36) — CONVEYANCES FOR RELIGIOUS PURPOSES — CONSTRUCTION — "CHARITY."

A trust created by a deed conveying land to trustees of a Presbyterian church in trust

for the use of the congregation of the church as a place of worship is not violated by a transfer to a Universalist church; any gift not inconsistent with law and promotive of the amelioration of the condition of mankind, or the diffusion of useful knowledge, being a "charity."

9. EJECTMENT (§ 95) — TITLE OF PLAINTIFF — EVIDENCE — SUFFICIENCY.

In ejectment by a senior grantee against a junior grantee of the same grantor for a strip of land claimed by defendant, evidence held to justify a finding that the strip passed to the senior grantee.

10. APPEAL AND ERROR (§ 695) — QUESTIONS REVIEWABLE — SUFFICIENCY OF EVIDENCE — RECORD.

Where the testimony of a surveyor who made a survey is meaningless without a plat to which he referred, and the plat is not in the record, the sufficiency of his testimony to support the finding will not be considered.

11. CHARITIES (§ 36) — CONVEYANCES — VALIDITY — PRESUMPTIONS.

Where land conveyed to the trustees of a Presbyterian church in trust for the use of the congregation for religious purposes was conveyed to "the Universalist general convention, a corporation existing under the laws of the state of New York," and the deed was silent as to the business character of the corporation, the presumption was that the conveyance was for a religious use, so that it and one claiming title under it acquired title.

12. ACKNOWLEDGMENT (§ 38) — CORPORATIONS (§ 444) — EXECUTION — ACKNOWLEDGMENT — SUFFICIENCY.

Under Rev. St. 1909, §§ 2790, 2799, 3001, authorizing a corporation to convey real estate by deed, sealed with its seal, and signed by the president, and authorizing the use of a form of certificate of acknowledgment prescribed, etc., a deed executed by a corporation reciting in the testimonium clause that in witness thereof the chairman of the board of trustees of the corporation and the secretary thereof have set their hands and seal of the corporation, followed by their signatures and the corporate seal, and acknowledged before a notary certifying that the officers were known to him, and that they acknowledged that they signed the deed on behalf of the corporation as officers for the purposes therein mentioned, was sufficiently executed and acknowledged.

Appeal from Circuit Court, Pike County; D. H. Eby, Judge.

Action by Louis A. Strother and others against Franklin M. Barrow. From a judgment for plaintiffs, defendant appeals. Affirmed.

Hostetter & Haley, of Bowling Green, and J. O. Barrow, of Vandalia, for appellant. T. B. McGinnis, of Bowling Green, I. C. Dempsy, of El Paso, Tex., and Tapley & Fitzgerrell, of Bowling Green, for respondents.

LAMM, J.

Ejectment. Defendant appeals from a judgment in favor of plaintiffs for an undivided two-sixths interest in a tract, situate in the hamlet of Ashley, Pike county.

Ashley was not laid out true to the cardinal points of the compass. Its subdivisions run from the northeast to the southwest. Among them is a square acre once belonging to Boyd, the common source of title. Boyd deeded 70 feet in rectangular shape off the southwest end of his acre to the Old School Presbyterian Church, putting the title in named trustees. The residue he deeded to his daughter, Mrs. Dorsey, and she conveyed to defendant. The church 70 feet passed by mesne conveyances (so plaintiffs claimed) to plaintiffs as trustees of the Ashley Church of the Methodist Episcopal Church South. It will be observed that plaintiffs, who sued for all, were awarded possession of an undivided two-sixths interest only, and abided the judgment. One phase of the dispute is over the boundary line between the church's 70 feet and Barrow's residue. Another is adverse possession. The parcel in controversy is a strip 11 feet wide at one end, 6 feet 10 inches at the other, and 3.16 chains long.

A map furnished by appellant is, so far as it goes, accurate enough to aid in grasping the situation, viz.:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The petition was conventional. The answer was a general denial coupled with two affirmative pleas (one the 10-year and the other the 30-year statute of limitations). The reply was conventional. At the close of plaintiffs' case and again at the close of the whole case, defendant interposed a demurrer to plaintiffs' evidence, which was overruled and he saved the point. No other instructions were asked on either side. The trial was to the court without the aid of a jury, and, at defendant's request, the court made a finding of facts. Facts essential to the determination of questions raised will appear in connection with rulings thereon.

The assignments of error are: "(1) The court erred in refusing defendant's instructions in the nature of a demurrer to the evidence offered at the close of plaintiffs' testimony and at the close of all the testimony. (2) The court erred in refusing to give effect to defendant's adverse possession, which he affirmatively found to have continued from 1890 down to the date of the institution of the suit. (3) The court erred in finding that the strip of ground in controversy was not conveyed by the deed from Cary A. Boyd to Elizabeth Dorsey and by the deed from Elizabeth Dorsey to the defendant Barrow. (4) The court erred in interpreting the deed from the alleged officers of the Old School Presbyterian Church to the Universalist General Convention, a New York corporation. (5) The deed purporting to be from the Universalist General Convention, a corporation, to the trustees of the Methodist Episcopal Church South, dated October 25, 1905, was ineffective to convey any title and the acknowledgment thereto was fatally defective." Of these in their order.

1. Of the demurrers.

In effect, the demurrers search, under guise of a general form, errors specified in assignments 2, 3, 4, and 5. Hence a disposition of those specifications will be tantamount to an appellate ruling on the demurrers. Accordingly we pass by that assignment eo nomine, as filling no separate function on appeal.

2. Of adverse possession.

The court found that defendant had been in possession under claim of title uninterruptedly and adversely since the year 1890 up to the date of the suit, 1908. To break the force of that finding, it also found that the statute of limitations could not be invoked as a bar to plaintiffs' claim or to create title in defendant. Contra, that section 1886, R. S. 1909, applied to the facts — that section reading: "Nothing contained in any statute of limitation shall extend to any lands given, granted, sequestered or appropriated to any public, pious or charitable use, or to any lands belonging to this state." To break the force of that ruling, defendant contends that, assuming the original grant to the trustees of the Old School Presbyterian Church to be for a "pious and charitable use," yet on the facts here that use was abandoned; whereat (on such abandonment) the statute began to run and continued to run, although a pious use of the property was subsequently resumed. In outline such is the controversy under this head.

We are of opinion the ruling nisi was correct. This, because:

(a) For present purposes it will be assumed that the strip in dispute passed by the deeds in plaintiffs' chain of title, and not by the deeds in defendant's. Whether that assumption be correct will be looked to presently. On that assumption, out of abundant caution, we reserve the question whether a stranger to conveyances creating a pious or charitable use can, in aid of his claim of adverse possession by limitation, raise the point of its abandonment. Whether the grantor who conveyed to the use or his descendants under the notion of a reverter may make the point, or whether some proper party suing in equity to regulate the use may assert rights under a nonuser or abandonment, we need in no wise...