Strong v. Doty , 32 Wis. 381 ( 1873 )

Cole, J.

The object of this action is certainly not entirely clear. There are averments in the complaint which warrant the inference that the action is one to obtain possession of the undivided one-eighth part of the lot described, upon the ground that the title reverted to the grantors on failure to execute the trust. Other averments would lead to the supposition that the action was intended to enforce the performance of the trust created by the deed, or, if the execution of the trust has become impossible, then that the court should restore the land to the grantors. But in any aspect, we think the action is not maintainable.

The case must turn upon the construction and effect given to the trust deed set out in the third subdivision of the complaint. By that deed the plaintiff and other grantors conveyed to William E. Phillips and others, grantees and trustees, and to their successors in office forever, the premises for the purpose and trust, as declared therein, that the grantees should erect and build thereon a house or place of worshijj for the use of the members of the Methodist Episcopal Church, according to the rules and discipline which might be adopted by the ministers of that church at their general conference in the United States, and in further trust that the trustees and their successors in office would at all times permit the ministers of that church, who should he duly authorized by the general conference, to preach and expound God’s holy word in the building erected upon the lot conveyed. It appears that, immediately after the execution of the trust deed in 1840, the trustees and their successors in office did erect and build upon the lot a stone edifice adapted for church worship, which edifice was continuously used as a house of worship and as a Methodist Episcopal Church until the year 1870, when the trustees and society abandoned and relinquished the edifice as a place of worship, and the trustees contracted and sold the lot and building to the defendant Pierce, who has converted the same into a wagon and blacksmith shop.

And now, the first position assumed by the plaintiff is, that, in consequence of this sale made by the trustees of the property to be used for a wagon and blacksmith shop instead of for the purposes of a church, as designated in the trust deed, there is a breach of the trust or perversion of the charity, and the title reverts to the grantors. In other words, that the use is a condition subsequent, the failure or perversion of which will operate to defeat the title.

We do not, however, think any such legal consequences follow from the alleged breach of trust, or failure to use the property for the purposes designated in the conveyance. It will be observed that no such condition was attached or attempted to be attached in the deed itself to the estate conveyed; and this fact distinguishes this case from a number of cases to which we were referred on the argument by the plaintiff. Besides, the statutes in force when this deed was executed provided that all lands conveyed, by deed, devise or otherwise, to any trustee or trustees for the use of any religious society within the territory, for the purposes of erecting a house or houses of worship, should descend in perpetuity to their successors in office, appointed by said societies respectively, according to tbeir respective rules and regulations, forever, for tbe use and purposes stated. Territorial Statutes of 1839, p. 136. And sucb, in substance, was tbe language of tbe grant, no condition being annexed that the estate should revest in the grantors upon a breach of the trust. There is no provision in the deed, that if the premises be abandoned as a place of worship the title shall return to and become vested in the donors. No subsequent violation of the trust upon which the property was held can ever revest either the legal or equitable title in them ; although a palpable breach of trust might form a proper ground for an application to a court of equity, on the part of the parties interested, to compel a due execution of the trust. Dutch Church v. Mott, 7 Paige, 78-82; 2 Story’s Eq. Jur., § 1191 et seq.; Willard’s Eq., p. 569, ch. 15; Perry on Trusts, pp. 681-2; Tiff. & Bullard on Trusts, p. 238.

Has the plaintiff the right to maintain the action to enforce the execution of the trust, and a restoration of the property to the use of a house or place of religious worship? We cannot see upon what ground he is entitled to seek and obtain this relief. For, as is observed on the brief of the counsel for the defendants, the plaintiff has no special interests or rights in the execution of the trust. It is not alleged that he is a member of the Methodist Episcopal Church, or has any more interest than the general public in the maintenance of a house of worship upon that lot. The fact that he was one of the grantors who originally made the gift does not give him any greater interest in the faithful execution of the trust, or any superior right to insist upon its proper enforcement, than any other individual. At all events we do not think that this circumstance alone entitles him to file a bill to establish and compel the execution of the trust, and a continuation of the use of the building erected upon the lot for religious purposes.

By the Court.— The order of the circuit court sustaining the demurrer to the complaint is affirmed.