Opinion
December 31, 1932.
1. COUNTIES: Right to Hold Property. A county may take and hold property for such purposes as are authorized by statute, by donation, by devise or by dedication.
2. COUNTIES: Right to Hold Property: Legislative Act. Where an act of the Legislature authorized the town of St. Louis to receive "a donation of land . . . whereon to erect a courthouse," the language used did not limit the estate to be conveyed. It was merely a declaration that the land donated would be used for county purposes.
3. COUNTIES: Right to Hold Property: Conveyance to the County Court. The conveyance to the justices of the county court in trust for the use of the county was a conveyance to the county.
Appeal from Circuit Court of City of St. Louis. — Hon. Moses Hartmann, Judge.
AFFIRMED.
A.R.A. Garesche, George G. Vest, Robert E. Maloney, George T. Priest and Boyle Priest for appellants.
(1) The act (Laws 1803-1822, Vol. 1, p. 989) provides for a dedication. Neil v. Independent Realty Co., 317 Mo. 1235, 298 S.W. 363; City of Athens v. Burkett, 59 S.W. 408. (2) The act controls the dedication of the land in question, because the dedication was made under it and pursuant to its authority. Neil v. Independent Realty Co., 317 Mo. 1235, 298 S.W. 363; Hardin v. Ferguson, 271 Mo. 415. (3) The act limits the conveyance of the land to the uses of the county of St. Louis, and under it no title in fee was conveyed to the county. Neil v. Independent Realty Co., 317 Mo. 1235, 298 S.W. 363; Glasgow v. St. Louis, 15 Mo. App. 112. (4) The title to lands dedicated to a specific public use or purpose (such as a courthouse), upon failure of the use, or its abandonment, or its impossibility of performance, reverts to the original donor, or his heirs, by operation of law. Gaskins v. Williams, 235 Mo. 563; State v. Travis County, 21 S.W. 1029; Police Jury v. Reeves, 6 Mart. N.S. 221; Campbell v. City of Kansas, 102 Mo. 326; Neil v. Independent Realty Co., 317 Mo. 1235, 298 S.W. 363; Board of Education v. Edson, 18 Ohio St. 221; Williams v. Society, 1 Ohio St. 478; Newark v. Watson, 29 A. 487; Potter v. Bridge Co., 93 N.E. 716. (a) Impossibility of the execution of the use is shown in the case of property dedicated to the use by municipal corporations when the municipal corporation, through its legislative body, passes an act abandoning the property or prohibiting its use for the specified purpose. Campbell v. City of Kansas, 102 Mo. 326: Gaskins v. Williams, 235 Mo. 563; Newark v. Watson, 29 A. 487; Young v. Board, 51 F. 585. (b) Abandonment occurs where property, other than the property dedicated, is used for the purpose for which the property was originally dedicated. State v. Travis County, 21 S.W. 1029; Newark v. Watson, 29 A. 487; Gaskins v. Williams, 235 Mo. 563. (5) The dedication of land by the original donors left in them the possibility of a reverter. This is a valuable right, and to permit the city of St. Louis to claim the land in question in fee would be to deprive the original grantors and their heirs of a property right without the due process of law, and the taking of the same without compensation, and would be in violation of Section 21, Article II, of the Constitution of Missouri. Neil v. Independent Realty Co., 317 Mo. 1235, 298 S.W. 371; Sec. 21, Art. II, Const. of Mo. 1875.
Julius T. Muench, Oliver Senti, Jacob F. Pfeffle and Leonard J. Holland for respondent.
(1) Grants, conditional or otherwise, are readily distinguishable from dedications, in that grants must be made to and accepted by persons in esse, while dedications are mere appropriations for public use, without the necessity of a grantee in being at the time. 18 C.J. 39, sec. 3; Rutherford v. Taylor, 38 Mo. 318; Young v. Mahoning Co., 59 F. 100, 51 F. 585; Dugan v. Zurmuchlen, 203 Iowa 1114, 211 N.W. 986. (a) The same distinction applies as between a dedication and a gift or donation, a person in esse being necessary to receive and accept the gift. 18 C.J. 41, sec. 7; Athens v. Burkett, 59 S.W. 404. (b) The act negatives the idea of a dedication, because it directed the commissioners to "accept and receive" the proposed donation of land; a dedication does not require either receipt or acceptance. Brown v. Carthage, 128 Mo. 17; Hatton v. St. Louis, 264 Mo. 643; Otterville v. Bente, 240 Mo. 295. (2) The case having been tried below on the theory that the conveyance from Chouteau and wife and Lucas was a conveyance on condition subsequent, it cannot now be tried on the theory that such conveyance was a dedication in trust. Snyder v. Am. Car Foundry Co., 14 S.W.2d 606; Mumford v. Sheldon, 9 S.W.2d 909; Mark v. Cooperage Co., 204 Mo. 262; Henry County v. Bank, 208 Mo. 225; Piening v. Wells, 271 S.W. 62; St. Louis v. Wright Contr. Co., 210 Mo. 502; Hof v. Transit Co., 213 Mo. 470; Brier v. Bank, 225 Mo. 684; Horgan v. Brady, 155 Mo. 668; In re Guardianship of Angela McMenamy. 307 Mo. 109; National Board v. Fry, 239 S.W. 524. (3) It is evident, from the provisions of the Act of December 14, 1822, as well as from the language of the acceptance and the deed, that the commissioners expected to receive, and the grantors expected to make, a gift or donation of the property in controversy. Act of 1822, Laws 1803-1822, p. 989. (4) The deed from the Chouteaus and Lucas was a gift for a beneficial public purpose, and this, in contemplation of law, was a gift for a charitable purpose. 11 C.J. 325. sec. 36; 5 R.C.L. 338-339, sec. 68; Stuart v. City of Easton. 74 F. 854, affirmed 170 U.S. 383, 42 L.Ed. 1078; Catron v. Scarritt Colleg. Inst., 264 Mo. 713; Lewis v. Brubaker. 14 S.W.2d 982; Perrin v. Carey, 24 How. 712; State v. Academy of Science, 13 Mo. App. 216; Historical Society v. Academy of Science, 94 Mo. 466. (5) A gift for a charitable purpose will not revert. Academy v. Clemens, 50 Mo. 172; Goode v. McPherson, 51 Mo. 127; Barkley v. Donnelly, 112 Mo. 575; Y.W.C.A. v. Kansas City, 147 Mo. 127; Lackland v. Walker, 151 Mo. 242; Hand v. St. Louis, 158 Mo. 209; Crow v. Clay County, 196 Mo. 261; Mott v. Morris, 249 Mo. 148; Catron v. Scarritt Inst., 264 Mo. 724; Glaze v. Allen, 213 S.W. 785; Lewis v. Brubaker, 14 S.W.2d 988. (6) The recital in the conveyance in question that the grantors "do, by these presents, give, grant, transfer, quitclaim and forever set over" to the Justices of the County Court, and "to their successors in office forever, . . . all our right, title, claim, interest and estate in and to" the site conveyed, operated to convey the absolute title to such site. 8 R.C.L. 937 and 1059, secs. 14 and 109; Young v. Ringoes. 1 T.B. Monroe, 30; Chancellor v. Bell, 17 A. 685; Hamlin v. Meeting House, 103 Mc. 343. (7) There is nothing in the granting clause of the deed to indicate an intention to convey merely a base or determinable fee. Challis on Real Property, 197; Thompson on Real Prop., sec. 2105. (8) The words, "But, upon this condition, nevertheless, that the said piece of ground by these presents given and conveyed shall be used and appropriated forever as the site on which the courthouse of the County of St. Louis shall be erected," following after the words of absolute conveyance, did not create a condition subsequent, which, upon a breach, would constitute a ground of forfeiture. 2 Devlin on Real Estate, sec. 970c; 7 R.C.L. 1086, sec. 4; 18 C.J. 357, sec. 371; 8 R.C.L. 1103, 1104, and 1119, 1120, secs. 161. 162, 181; 3 L.R.A. (N.S.) 741 Ann.; 7 L.R.A. (N.S.) 1119 Ann.; 3 Ann. Cas. 38 and Ann.; Zollmann on American Law of Charities, sec. 148; Lewis v. Brubaker, 14 S.W.2d 984; Haydon v. Railroad, 222 Mo. 139; Catron v. Scarritt Institute, 264 Mo. 713; Stilwell v. Railway, 39 Mo. App. 221; Sohier v. Trinity Church, 109 Mass. 1; Rawson v. School Dist., 7 Allen, 125, 83 Am. Dec. 670; Greene v. O'Connor, 19 L.R.A. 262; Van De Bogert v. Church, 220 N.Y.S. 50; Hinton v. Vinson, 104 S.E. 899; Koch v. Streuter, 232 Ill. 594, 83 N.E. 1072; Stuart v. City of Easton, 74 F. 854, Affd. 42 L.E. 1078; The Episcopal City Mission v. Appleton, 117 Mass. 326; Ward v. Klamath Co., 217 P. 927; Garfield Tp. v. Herman, 71 P. 517; Thornton v. City of Natchez, 129 F. 84; Freer v. Sanitarium, 115 N.Y.S. 734; Hayes v. Church, 196 Ill. 633; Mills v. Davison, 35 L.R.A. 113; Fraley v. Wilkinson, 191 P. 156; Academy v. Trustees, 47 S.W. 617; Mackenzie v. Presb'y, 3 L.R.A. 227; Fitzgerald v. Modoc Co., 164 Cal. 493. (9) Even if the deed in controversy could be construed as a conveyance on condition subsequent there has been such substantial compliance with the terms of the deed, by the maintenance of a courthouse on the site conveyed for more than one hundred years, as will void a forfeiture. 18 C.J. 372, sec. 410; Mead v. Ballard, 74 U.S. 290, 19 L.Ed. 191; Thornton v. Natchez, 129 F. 86; Rawson v. School Dist., 7 Allen, 125, 83 Am. Dec. 675; Higbee v. Rodeman, 28 N.E. 442; Griffitts v. Cope, 17 Pa. 99; Jordan v. Hendricks, 173 N.E. 289; Koehler v. Rowland, 275 Mo. 587. (10) Possession of the site having passed from the County Judges of the County of St. Louis, the grantees in the deed, to the city of St. Louis, under the Scheme of Separation of 1876, fee-simple title to the site is vested in the city of St. Louis by adverse possession. R.S. 1929, secs. 850, 852, 856.
By consent these cases were consolidated for trial in the circuit court. They are suits in equity (under the statute) and by plaintiffs as heirs-at-law of Auguste and Therese Cerre Chouteau and John B.C. Lucas, who were the donors of land in the city of St. Louis on which the courthouse in said city was located. The petitions are identical and on behalf of plaintiffs and the unknown heirs or representatives of grantors who claim an interest in the land. The known heirs-at-law of said grantors are joined with the city as defendants. The petitioners prayed the court to determine the rights, claims, interests and liens of the parties in and to said land. After making certain admissions, the answer of defendant city was a general denial with certain affirmative defenses. The answer of defendant Henri Chouteau was a general denial. As to the other defendants, a default was had upon publication or personal service. At the close of the evidence and on motion of defendant city, the court dismissed the petitions and entered judgment for defendant city. Plaintiffs and certain defendants appealed.
The pleadings are not challenged. They properly presented the issues for determination, and it is not necessary to summarize them. In this court the cases, for the purpose of argument and submission, were consolidated with Henri Chouteau v. City of St. Louis, 331 Mo. 781, 55 S.W.2d 299. The facts follow:
On December 14, 1822, an act of the Legislature was approved appointing certain commissioners and authorizing them (a) to receive proposals from persons willing to make a donation of land in the town of St. Louis whereon to erect a courthouse; (b) to select from said proposals a site for said purpose; (c) to accept and receive the site selected; (d) and to cause a conveyance of the site to be executed to the justices of the county court and their successors in office forever in trust for the use of St. Louis County for said purpose. [Laws 1804-24, p. 989.]
The commissioners received a proposal from Auguste Chouteau and John B.C. Lucas to donate a block of land. They owned the lots surrounding and in the neighborhood of said land. The commissioners selected said land for said purpose, and in writing, signed by them, accepted same on August 25, 1823. On November 11, 1825, the owners of said land acknowledged a deed dated September __, 1823, conveying said land to said justices and their successors for said purpose. The written acceptance by the commissioners was followed on the parchment by the deed conveying the land. In due course a courthouse was built on said land. It was used as such by the county of St. Louis until 1876. In that year the Legislature separated the city of St. Louis from the county of St. Louis. In doing so the interest of the county in the courthouse property was transferred to the city. Thereafter the courts of record of the city and the officers of said courts occupied said courthouse until June 23, 1930. On that date said courts and officers were moved to a new courthouse in the city.
The acceptance of the land follows:
"We, the Undersigned Commissioners appointed by an act of the General Assembly of the State of Missouri entitled `An Act Concerning a Court House and Jail in the County of St. Louis approved the 14th December 1822' have this day selected as proper Site whereon to erect A Court house for the County of St. Louis A Square of ground offered by John B.C. Lucas and Auguste Chouteau Esquire Situated on . . . and the Said Commissioners as by the Said `act' authorized do by these presents accept and Receive the Said Square of Ground `of' the Said John B.C. Lucas and Auguste Chouteau Esquire the Donors as the Seite whereon the Court house of the County of St. Louis Shall be built, the Said Lucas and Chouteau are Required to Execute a deed for Said Square as is Required by the act above Referred to Given under our hands at St. Louis this 25th day of August 1823 — Thomas Sappington — Will Carr Lane — Pr. Chouteau Jr."
The deed follows:
"Whereas Thomas Sappington, William Carr Lane and Peirre Chouteau Jr three of the Commissioners appointed by the act of the General Assembly of the State of Missouri approved the 14th day of December 1822 to Select on behalf of the County of St. Louis a proper Seite within the Town of St. Louis Whereon to Erect a Court house for the Said County and the Commissioners aforesaid having Selected as the most Suitable Situation whereon to build Said Court house a certain piece of ground in the Town of St. Louis belonging in Separate proportions to the undersigned Auguste Chouteau and John B.C. Lucas Situate Lying and Being in the addition to that part of the Town Laid out by `them' and market A upon the Plat of Said addition as appears by the Record thereof in the office of the Recorder of St. Louis County Book F, (page 2) the Said Square of ground as aforesaid Selected is bounded . . . Now Therefore Know all men by these presents that we Auguste Chouteau Therese Cerre Chouteau his wife and John B.C. Lucas all of the City of St. Louis and State of Missouri do by these presents give, grant, Transfer Quit Claim and forever Set over to John C. Sullivan, Justus Post and Joseph V. Garnier the present Justices of the County Court of the County of St. Louis and to their Successors in office forever in Trust and for the use of the County of St. Louis all our Right, Title, Claim, interest, and estate in and to the above described Square of ground Situated and bounded as above Recited with all and Singular the privileges and appurtenances to the Same in any wise appertaining, but upon this Condition nevertheless that the Said piece of ground by these presents given and Conveyed shall be used and appropriated `forever' as the Seite on which the Court house of the County of St. Louis Shall be erected. In Testimony whereof the Said Grantors have hereunto Set their hands and affixed their seals at St. Louis this ____ day of September in the Year of our Lord one Thousand Eight hundred and twenty three."
The words "them" and "forever" were underscored before the grantors signed the deed.
Plaintiffs contend that the land in question was dedicated to a public use; that the city succeeded the justices of the county court as trustee on the separation of the city and county, and that on abandonment of the property the execution of the trust became impossible and the land reverted to the lineal descendants of the grantors by operation of law. In other words, they contend that the deed conveyed an easement.
Defendant city challenges the right of plaintiffs to present this theory. The petitions alleged that the deed was a conveyance of the fee upon condition subsequent. The cases were tried below on that theory. Plaintiffs contend that the rule has no application on appeals in equity cases. They also contend that the legal effect of the facts alleged in the petitions authorize a review in this court on the theory that the deed conveyed an easement. We will assume that this contention is correct and proceed to determine if grantors conveyed an easement. In this connection plaintiffs contend that the act of the Legislature fixed the estate to be conveyed and that grantors complied with the act. Therefore, the case turns on a construction of the act. Of course, "a county may take and hold property for such purposes as are authorized by statute, by donation, by devise or by dedication." [15 C.J. p. 532.]
The act called for a donation of land. The word "donation" is defined to be "an act by which the owner of a thing voluntarily transfers the title and possession of the same from himself to another without any consideration." [Winfield's Adjudged Words Phrases, p. 206; 1 Bouvier's Law Dict., p. 924; 1 Pope Legal Definitions, p. 412; Black's Law Dict. (2 Ed.) p. 391.] We find nothing in the act indicating that the words should be otherwise construed. The statement in the act that the land donated would be used as a site whereon to erect a courthouse did not limit the estate to be conveyed. It was merely a declaration that the land donated would be used for county purposes. [Henri Chouteau v. City of St. Louis, 331 Mo. 781, 55 S.W.2d 299.] The word "dedication has respect to the possession and not to the permanent estate. Its effect is not to deprive a party of his land but to estop him while the dedication continues in force from asserting that right of exclusive possession and enjoyment which the owner of property ordinarily has." [Rutherford v. Taylor, 38 Mo. 315, l.c. 318.] The grantors (Chouteau and Lucas) understood the act to require a conveyance of the fee. They conveyed the fee on condition. [Henri Chouteau v. City, supra.] [3] Furthermore, the conveyance to the justices of the county court in trust for the use of the county was a conveyance to the county. In early times most of the conveyances to towns, cities and counties were made to the inhabitants or officers thereof. It was universally ruled that the estate so conveyed belonged to the town, city or county. [St. Louis County Court v. Griswold et al., 58 Mo. 175, l.c. 200.] And in Abernathy v. Dennis, 49 Mo. 468. l.c. 470, we said: "Counties are mere subdivisions of the State for governmental purposes, capable, however, of holding the title in fee to such lands as may be donated to them for their own use." And under similar facts it was ruled in Sumner v. Darnell, 27 N.E. (Ind.) 162, l.c. 164, as follows:
"As we construe the grant, it was in legal effect and contemplation a conveyance to the county. Nothing in the language used indicates a design on the part of the grantor to vest the legal title in the commissioners and their successors as individuals, to act as trustees, rather than as the agents of the county, or to impose upon them any duties or obligations other than those required of them as public officers. The statute in force at that time did not, as does the present one, designate the corporate name and style to be assumed by boards of commissioners, (act approved December 17, 1816), and the form used in this deed was at that time commonly used in conveying property to corporations and quasi corporations in this state."
Plaintiffs cite Neil v. Independent Realty Co., 317 Mo. 1235, 298 S.W. 363, and similar cases ruling questions under the law applicable to easements. A consideration of those cases is unnecessary.
Plaintiffs and the unknown heirs, descendants and representatives of the grantors, Auguste and Therese Cerre Chouteau and John B.C. Lucas, and the defendants, the known heirs of said grantors, have no interest in the land described in the petitions.
The judgment should be affirmed. It is so ordered. All concur.