GRISSOM V. HILL. VOL. 17 -.•'GRISSOM [*483 V. HILL It is not against public policy, uor the spirit of our laws, to donate, in perpetuity, a lot of ground, for charitable purposes—as for the use of religious denomination as a place of worship : and deeds for such purposes should be liberally construed, in order to uphold the trust. The trustees under such a deed, which provides that the ''lot of land is never to be sold, or to be used in any other way, only for the use of church," cannot create a charge upon the lot by a contract for the erection of a house thereon, so as to authorize the mechanic to obtain a lien and sell the lot in paytuent thereof—they cannot do indirectly that which they are prohibited from doing directly. And if the trustees permit such a lien to be created upon the lot, and suffer it to be sold, thereby defeating the object of the grant, the grantor, though there be no clause of forfeiture in the deed, may apply to a court of equity to set aside the sale, and tu divest the title and possession of the purchaser. Appeal from Ouachita Circuit Court ire Chancery. ON. SHELTON WATSON, Cir-H cuit Judge. Curran & Gallagher and Case, for appellant. Pike & Cummins, contra.
JAN. TERM, 1856. GRISSOM V. HILL. ENGLISH, C. J. In August, 1852, That said building had been, for Ezra Hill filed a bill on the chancery nearly three years, wholly deserted as r side of the Ouachita circuit court, house of public worship. agaoist Arthur W. Simmons and That on the 12th of March, 1850„ others, alleging, in substance, that on James S. Grissom, filed in the office of the 8th of November, 1848, the com- the clerk of the circuit court of said plainant being seized in fee of a cer- county, his account, sworn to, for the. tain lot of ground, situated in the city sum of $283.63, for the purpose of avail-of Camden, lie, and his wife, by deed ing himself of the statutes, on the sub-of that date, conveyed the same to Ar- ject of mechanics' liens, it appearing thur W. Simmons, Berry Beard, from said account that he, and his Thomas W. Bruce, Levi Reece and servants, apprentices and journeymer John L. Wells, as trustees, for the use had built said house at the employ-and benefit of the Methodist Protestant ment of the trustees. On the 3d Sep-4849 Ch urch, and their suc*cessors tember, 1850, a scire facias was issued in office, for life. That the object. of thereon against the trustees, requiring the complainant, in making said con- them to show cause why Grissom veyance, was purely charitable, and to should not have judgment for the promote religion and morality, and amount of his lien, and execution that he never received or demanded thereon against the house and lot any other consideration therefor, than charged, which writ was returned the implied and expressed stipulation by the sheriff, duly executed. That, of the grantees to carry out the object at the October term, 1850, of' of the said grant : and to the end that said circuit court, judgment was such should be the case, the convey- taken by Grissom upon default [*485 ance was made upon the express con- of the trustees, and a writ of enquiry dition, as set forth in the deed, that ordered, which was executed at thE said lot of land was never to be sold, or April term, 1851, and the jury assessed to be used in any other way, only for the damages of Grissom at $283.63, for the use of a church, for the benefit of said which final judgment was rendered, Protestant Church. Which deed, with and that he have his lien upon the said condition plainly written therein, house and lot, &c. was, on the day of its execution, filed That, on the 2Ist July, 1851, an exe-for registration in the office of the cution was issued upon the judgment, recorder of said county, and duly re- levied upon the property, which was corded. duly advertised, sold by the sheriff at That shortly after the said donation the court house door, on the first day of' was so made, said trustees caused a the return term (29th September, Jarge framed house to be erected upon 1851), and purchased by .Grissom, at the lot, to be used, as complainant sup- $250, who obtained the sheriff's deed posed, as a place of public worship, for therefor, which was duly acknowl-the Protestant Methodist Church, in edged and recorded. Camden, but, to the surprise of com- The deed from Hill and wife to the plainant, and contrary to the object, trustees, and a transcript of the pro-spirit and intent of said donation, and ceedings of Grissom to enforce his me-without the assent of the complainant, chanics' lien, including the sheriff's a school was taught in said house, dur- deed to him, are made exhibits to the ing most of the year 1849, to the great bill. annoyance of complainant, and the The complainant further charges, immediate neighborhood. thct the abandonment of the house, aa
GRISSOM V. HH.L. VOL. 17 a place of public worship, for the gained and sold, aliened and conveyed, Methodist Protestant Church, the con-and hereby grant, bargain and sell, verting of the same into a school alien and convey, nnto the parties of house, and the permitting of it to be the second part, the following described sold, under the supposed lien of Gris-lot of land, namely (here the lot is de-som, which, complainant alleges, was scribed): To have and to hold the through the neglfgence, inattention above granted parcel of land and prem-and fraud of the trustees, were all gross ises, unto the said parties of the second and flagrant violations of the condi-part, their heirs and assigns forever. tions and terms of the grant. That And the said parties of the first part, Grissom, before building the house, and their heirs, shall, and will war-had full notice of the conditions upon rant and forever defend the same unto which the title vested in the trustees; the said parties of the second part, and and charged his lieu upon the prop-to their heirs and assigns forever, erty with his eyes open, knowing at against the lawful claims of all persons, the time, that the very proceedings &c. But said lot of land is never to be which he had adopted, would divest sold, or to be used in any other way, the title of the trustees. only for the use of a church, for the That Grissom now (the time of filing benefit of the said Protestant Church." bill), holds possession of the house, has Then follows a clause relinquishing locked it up, and refuses to permit the the dower of the wife; and the usual trustees, or complainant, to enter the formal conclusion, with the signatures same, which is in fraud and violation and seals of the grantors. of the rights of complainant. The defendant, Berry Beard, filed a That by said action on the part of disclaimer, and the bill was dismissed the trustees and Grissom, the interest as to him; the other defendants inter-and title of the trustees have been, and posed a demurrer to the bill for want are forfeited, and the same ought, in of equity ; the demurrer was overruled equity and good conscience, to be by the chancellor; the defendants wholly divested out of them, and re-rested, aud final decree was rendered vested in complainant. for the complainants iu accordance The trustees and Grissom are made with the prayer of the bill; from which 1861 parties, and the bill prays 'that Grissom appealed to this court. the title of the tru,tees be declared for-The trustees having acquiesced feited and re-vested in complainant; in the decree of the court be-and that the title acquired by Grissom, qow, all controversy as to their [.487 be set aside and declared void, &c. .rights, as between them and Hill, must The deed from Hill and wife to the be regarded as at an end, and the ques-trustees, is, iu substance, as follows : tions to be determined upon this ap-"This deed of conveyance, made and peal, arise between Grissom aud Hill. entered into, this 8th day of November, The lot was granted by Hill to the A. D. 1848, by, and from Ezra Hill and grantees, aud their successors, in trust, Sze., of &c., of the first part, and Ar-. for the use and benefit of a Christian thur NV. Simmons, &c., &c., trustees, denomination, upon two conditions : for the use and benefit of the Metho-1st. That said lot was never to be sold : dist Protestant Church, and their suc-and, 2d. That it was never to be used cessors in office, for life, of the second in any other way, than for the use of part, witnesseth that the said parties of a church, for the benefit of said denom-the first part, for, and in consideration ination. of one dollar, &c., have granted, bar-1. It is insisted by the counsel of the
JAN. TERM, 1856. GRISSOM V. HILL. appellant, that the lot having been A summary of the English cases, on granted to the trustees, for the purpose this subject, may be found in Hill on of erecting thereon a house of worship, Trustees, p. 395. the power to encumber it with the cost But, surely in a Christian country of such erection, and subject it to the like ours, it is not against public policy, lien of the mechanic, and sale to dis-or the spirit of our laws, for a man to charge . such incumbrance, necessarily donate to trustees, a lot of ground, to followed as incidents of the trust. be held and appropriated by them and 2. That the provision in the deed, their successors, in perpetuity, for the that the lot was never to be sold, must use and benefit of a religious denomi-be construed to apply to voluntary nation as a place of worship. Such con-alienations by the trustees, and not to veyances are favored and upheld by alienations by act of law. chap. 135, Digest, p. 840. 3. That, in the absence of an express Deeds and wills creating trusts for elause of forfeiture in the deed, the lot charitable purposes, such as the one in could never revert to the grantor, on question, are to be liberally construed, account of the violation of the terms in order to uphold the trust, and carry and conditions of the trust. The second out the intention of the donor. Hill on proposition will be considered first. Trustees, 450, et seq. Settlements to the use of individuals The object of Hill, in making the with restrictions upon alienation, are deed in question, as is manifest from not favored by the law, and deeds or its provisions, was to donate and se-wills making such restrictions, are cure to the perpetual use of the Pro-strictly construed. Hence, it is held, testant Methodist denomination, in in the English cases, cited by the coun-Camden, a lot of ground, upon which sel for the appellant (1 Sim. 66; 2 Id. to erect and maintain a house of wor-479; 1 Russ. & Mill. 69'; 6 Term Rep. ship, and hence he provided that the 684), that where an annuity is settled lot should never be sold, or appropri-upon an individual, with a provision ated to any other purpose. against voluntary alienation, or incum-If the trustees could, by improvident brances by him, upon his becoming a contracts, involve the property in bankrupt, the annuity passes to his as-debt, and thereby subject it to be sold signee, unless there is a provision in under execution, the intention of the the will or deed that it shall determine donor might be defeated in that way, upon his bankruptcy, &c. The same as well as by a voluntary sale on their doctrine has been recognized in Hallett part, because the purchaser could ap-v. Thompson, 5 Paige 583, where it was propriate the lot and church, in either held, that where a legacy would paqs case, to his own private purposes, and to the assignees of the legatee, under prevent the use of it, for religious pur-the insolvent act, &c., it might be poses, as it seems was done in this case. 488*] reached by a judgment *creditor The trustees would hardly be allowed by bill in equity, and applied to the to do, indirectly, that which they have satisfaction of his debt. The chancel-no power to do directly. lor iu that case, remarked, that : "As Even where a deed does not pro-a general rule, it is contrary to sound hibit the 'sale of the trust estate, public policy, to permit a person to if the sale of it would defeat or have the absolute and uncontrolled prejudice the object of the charity, -ownership of property for his own pur-*the trustees have no power to [*489 poses, and to be able at the same time, sell it. "It is plain," says Mr. Hill, to keep it from his honest creditors." "that, in ordinary cases, a most im-
GRISSOM V. HILL. VOL. 17 portant part of the duty of the trus-the opinion of the court, said: "The tees is to preserve the trust property, Legislature possesses no power to di-and it lies with those who seek to sup-vest legal or equitable rights previously port a sale by them, to show that the vested. The legal or equitable estate transaction in question was beneficial may be charged f 'with the lien, [*490 for the charity. In the absence of such provided that does not interfere with proof, and a fortiori, if there be any other paramount interests or tittles. evidence showing that the sale was im-The vested rights of third persons, who provident, or prejudicial to the charity, are neither parties nor privies to the it will be treated as a breach of trust, contract between the tenant in posses-and set aside." Hill on Irustees, 463. sion and mechanics, cannot be preju-The nature of the donation in this diced or sported away by their agree-case, is such, that a sale of the prop-ment. To allow this, would be to ex-erty would necessarily defeat the ob-pose the whole estate to utter ruin, or ject of the charity. onerous burdens, that would mate-"The trustees of a charity will not rially impair its value. The law makes be justified in placing the funds under it the duty of all persons, who con-the control of other persons, who were tract, to ascertain the nature and ex-not contemplated by the creator of the tent of the interest they acquire. This trust." Hill on Irustees, 466. rule imposes no greater hardship or in-If the appellant has obtained a valid convenience on mechanics than on title to the lot in question, he might other individuals. He who has the appropriate it, and the house upon it, fee, or is tenant in possession, can be to secular purposes, foreign to the ob-compelled to exhibit his title to the jects of charity contemplated by the premises on which he wishes to build, donor. and even should he refuse, the records It is not, however, to be understood, of the courts, which are always open that the deed secures the lot from any for inspection and examination, will and all transfers by act of law. Unless readily show it and all prior incum-exempted by law, it would, like other brances, with which the estate stauds property, be subject to sale for public charged." taxes and charges: provisions for the In this case, the appellant, having support of government being para-proceeded with a full knowledge of the mount. provisions of the deed, and the condi-1. Having thus disposed of the section of the lot, can consider it no hard-ond point made for the appellant, there ship to be required to look to the per-is no difficulty in determining the sons who employed him to erect the first. church upon the lot, for his pay. The conditions contained in the deed 3. If the estate vested in the trus-from Hill to the trustees, are to be re-tees by the deed, be regarded strictly garded as prior incumbrances upon the as an estate upon conditions, "it is property; and the deed being recorded, usual," says Mr. Kent (4 Com. 123), the appellant, in making his contract "in the grant, to reserve, in express with the trustees to build upon the lot, terms, to the granlor and his heirs, a was bound to take notice of, and con-right of entry for the breach of the tract in reference to the provisions of conditions; but the grantor or his heirs the deed. Digest, chap. 105, secs. 20, ;nay enter, and take advantage of the 27. breach by ejectment, though there be In Brown v. Morrison et al., 5 Ark. no clause of entry." Rep. 2l, Mr. Justice Lacy, delivering A vested devise of lands to a town,
JAN. TERM, 1856. for a school house, provided it be built and refused to permit it to be entered. within one hundred rods of the place In other words, that it had been con-where the meeting-house stands, was verted into private property : and thus held to be valid as a condition subse-both conditions of the deed were vio-quent; and the vested estate would be lated. forfeited, and go over to the residuary That Hill, who made the grant for devisee as a contingent interest, on the use of the church, and who was non-compliance iu a reasonable time entitled to have the property appro-with the condition. Hayden v. priated to the charitable purposes of Stoughton, 5 Pick Rep. 528. the grant, had the right to apply to 4911 '4̀'So, if land be given, on condi-equity to set aside the sale to Grissom, tion that the public buildings of the and divest his title and possession, parish be erected thereon, it has been there can be but little question. Hill held to revert to the donor if the seat on Trustees, 521, 522. On this appeal, of justice of the parish be removed, un-no other question is properly presented, der sanction of an act of the Legisla-and inasmuch as the appellant has •no ture passed subsequent to the grant. cause of complaint, the decree must be Police Jury v. Reeves, 18 Martin's Lou. affirmed. Rep. 221. Absent, Mr. Justice Hanly. These cases are cited by Mr. Kent (4 Coin. 125, 126), as examples of the forfeiture of estates upon conditions, for failure to observe the conditions of the grant. So it was held in Less.ee of Sperry v. Pond. 5 Ohio Rep. 241, that a conveyance, on condition that the grantee shall keep a saw-mill and grist-mill doing business on the premises, is a valid one, and if the grantee fails to perform the condition, he forfeits the estate. But whether this is technically an estate upon conditions, such as, upon failure to observe the conditions on the part of the trustees, the lot will absolutely revert to the donor, and thereby cut-off, on account of the acts of the trustees, the beneficial interest of the cestui gue trusts—the denomination for whose use the trust was created —it is not neccessary to decide, as no one is representing, or claiming any thing for them on this appeal, unless it be Hill. It appears from the allegations of the bill, that the trustees not only permitted the property to be sold, but that Grissom, the purchaser, locked up the house of worship . erected upou the lot,
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.