« ForrigeFortsett »
under” such contract, held, that the mortgage kept out at interest by the party of the secsecured only the payment of the annuity, and, ond part, and the income derived therefrom there having been no default in the payments, to be used by the party of the second part terminated at mortgagee's death.
exclusively for school purposes for which the 2. Deeds om 168–Equity will not enforce for- party of the second part has been incorpofeiture.
rated; and the party of the second part Equity will not lend its aid to enforce a shall have no lawful right or power to use forfeiture because of breach of a condition any part of the principal for any purpose subsequent.
except to loan the same, and thereby raise 3. Trusts em 61(1), 27112-Equity has plenary an annual income to be used exclusively for jurisdiction in administration of trust estates school purposes as aforesaid, and not with in hands of trustees.
a view to profit; and any court of compe Equity has plenary jurisdiction in the ad- tent jurisdiction shall have full power and ministration of trust estates in the hands of jurisdiction to enforce this trust and compel trustees, but such rule will not give it jurisdic- the proper management and control of said tion of a bill, not to administer a trust, but to endowment fund, providing that should the terminate a trust by enforcing forfeiture of a deed to and contract with defendant trustee party of the second part at any time fail or because of breach of condition subsequent refuse to maintain an institution for educatherein.
tional purposes under its charter and fail or
refuse to expend the annual income excluAppeal from Circuit Court, Vermilion sively for school purposes as provided for in
its articles of incorporation, then said enCounty; John H. Marshall, Judge.
dowment fund hereby granted shall revert Suit by J. M. Patterson and others against to and vest in the party of the first part, the Vermilion Academy. Decree for defend- his heirs, executors, administrators or asant, and complainants appeal. Affirmed. signs.” The contract also provided that Pat
John H. Lewman and O. M. Jones, both of terson should convey, by good and sufficient Danville, for appellants.
deed of conveyance, the real estate describActon, Acton & Snyder and Clark & Hut- ed. The contract stipulated as to the use ton, all of Danville, for appellee.
of the income from the real estate in the
same manner and with the same forfeiture STONE, J. Appellants' intestate, Golden
as to the notes and mortgages. As to the Patterson, filed a bill in the circuit court of real estate it was further stipulated as fol
lows: Vermilion county for the purpose, as declared in the briefs, of enforcing the terms of a
"With the full right in the party of the written contract and to foreclose a mort- second part, after the death of the party of gage given to secure the performance of the first part, to sell and convey said lands, or that contract. On a hearing the bill was deed of conveyance, and any moneys realized
any part thereof, by a good and sufficient dismissed for want of equity, and the cause from the sale of said lands, or any part therecomes here for review.
of, shall be held by the party of the second Golden Patterson, appellants' intestate, on part in trust as a part of the endowment fund June 3, 1914, entered into a contract with mentioned in paragraph 1 above, and exactly appellee, the Vermilion Academy, a corpora- upon the same terms and conditions and for the tion organized under the laws of the state same purposes and with the same rights, powof Illinois for educational purposes, and not ers and liabilities in said paragraph 1 above for pecuniary profit, by which he transfer the second part fail or refuse to maintain an in
mentioned, provided that should the party of red to it all his personal and real estate, stitution for educational purposes under its amounting to approximately $200,000, and charter at any time prior to the sale of said consisting of notes, mortgages and farm lands or any part thereof, then such land relands. It appears that he was at that time maining unsold shall, in the event of the failure a bachelor, about 80 years of age, and had of the party of the second part to maintain an been considering for some time the making institution for educational purposes as provided of such disposition of his property as would for in its articles of incorporation, revert to cause it to be used for educational or chari- the party of the first part, his heirs and as
signs." table purposes.
Pursuant to that purpose negotiations were had between him and the The contract stipulated as a consideration academy. The contract entered into on that for this agreement that the academy agrees day provided for the transferring of all to pay to Patterson 6 per cent. per annum notes and mortgages to the academy, which from March 1, 1914, on the sum of $200,000, was “to hold said notes and moneys receiv- this being the value placed upon all of the ed, upon collection of the same, and inter- property transferred by Patterson. The first est thereon, in trust as an endowment fund payment of $12,000 was to be made on March of the party of the first part, to be known 1, 1915. Thereafter the $12,000 was to be as the 'Golden Patterson endowment fund,'paid in semiannual payments, $6,000 on each the said endowment fund to be loaned and 1st day of September and 1st day of March,
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(144 N.E.) commencing with September 1, 1915, "so long the mortgage be foreclosed. The bill was as the party of the first part shall live." The filed on September 23, 1920. Patterson died contract also provided that the academy April 1, 1921. His death was suggested on would furnish good and suitable board and the record, and the appellants, his heirs, room and free tuition to two scholars to be were substituted as parties complainant. An selected by Patterson during his lifetime, and amended and supplemental bill was filed, after his death by the supervisor of the town and appellee filed its answer thereto, admitof Love, such scholars to be selected from ting the execution and delivery of the conamong the worthy children of the town of tract, mortgage, and deed, but denying that Love, whose parents were unable to pay the it had not kept and performed the covenants expense of such education. It was agreed and agreements contained in the contract, in the contract, also, that the academy but averring that it had fully performed the should execute and deliver back to Patter- same. It set out in the answer that from son a good and sufficient first mortgage on time to time it collected the interest on the all of the real estate above described, “to notes transferred to it by Patterson and the secure the faithful performance of all the rents accruing on the land conveyed to it; agreements and covenants herein made by that it received the same under its articles the party of the second part."
of incorporation as a part of its general fund The deed executed by Patterson pursuant to maintain an institution of learning under to the contract warrants and conveys to the its charter powers, as provided by the statacademy the real estate therein described in ute giving it the legal right to receive, either trust for the purpose of receiving all the by gift or purchase, property for the use of rents, issues, and profits arising therefrom, the corporation, and to use the same, as well and using the same exclusively for school as other property, as might be considered purposes for which the academy has been most conducive to the interest of the instiincorporated, and not to be uséd with a view tution and its purposes; that it was considto profit. The deed provides, also, in accord- ered most conducive to the best interest of ance with the terms of the original con- the institution to use the funds belonging tract, that after the death of Patterson the to the corporation to carry out its part of grantee may, at its option, sell and convey the agreement, and that in so doing it was the real estate, or any part thereof, by a not using such funds for any other than good and suficient deed of conveyance, and school purposes, as provided in its articles of thereby convey the fee to the lands; the incorporation; and that it had not at any moneys realized from the sale of the lands to time used any of the funds with a view to be held as a part of the permanent endow-profit. ment fund. The deed also contains a re It is admitted by the answer that during cital of other stipulations of the contract. some of the years since the execution of the
At the time of the making of the deed contract with Patterson all of the rents from there was executed by the academy to Pat- the land and the interest from the notes terson its mortgage deed in the following were used in payment of the semiannual sum form:
due Patterson, and in addition thereto other "The mortgagor, Vermilion Academy, a cor- funds of the academy were used in making poration of Vermilion Grove, in the county up the balance of such payments; that in of Vermilion, state of Illinois, mortgage and some years it used only a portion of the inwarrant to Golden Patterson, of Humerick, terest and rents in paying the amount due county of Vermilion and state of Illinois, to Patterson; that it had a lawful right to use secure the payment of $12,000 per year during said income for such purpose in maintain. his life and for the performance of all cove- ing and providing for the institution, under pants and agreements under a contract be
its articles of incorporation. The answer tween the mortgagor and mortgagee dated June 3, 1914, to which reference is hereby also avers that at the time of the execumade,
the following-described real estate tion and delivery of the contract Patterson [here follows description of real estate] sit- knew that a part or all of the interest on uated in the county of Vermilion, in the state the notes and the rents from the land would of Illinois, hereby releasing and waiving all of necessity from time to time be used in rights under and by virtue of the homestead making the semiannual payments to him, exemption laws of this state."
and that the mortgage given back on the The original bill set out that contrary to land was for the purpose of securing such the terms and conditions of the contract the payments. It is also averred in the answer academy did not use the income from the that at each time Patterson received a payproperty transferred to it by Patterson for ment from the academy he knew that it was school purposes, but it had been used to pay
made up, either in whole or in part, out of the annuity of $12,000 due to him. The pray- the interest from the notes and the rents er of the bill was that the court enforce the from the land; that he knew that the other provisions of the contract by compelling the income of the academy was not sufficient to academy to return the property, and that meet such payments; that he made no pro
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test or claim that the payments so made contract and deed, in giving to his grantee were in violation of the contract, and he the right to convey the property in fee thereby waived any right to forfeit the con- simple after his death, that the mortgage tract on that account; that on March 1, should be for the purpose, only, of securing 1921, after having started the suit in ques- the annuity during his life and that it tion, he received a payment of $6,000, know would cease to become operative upon his ing the same to be made out of the interest death. The language of the deed is hardly and rents from the property, and thereby compatible with a mortgage, if such an inwaived all right to forefeiture. The answer strument could be conceived, to secure the denies the complainant was without remedy, use, according to the contract, of the money except in a court of chancery, and avers that arising from the sale in fee simple of the he had an adequate remedy at law, and' that mortgaged. land after his death. Either the a court of chancery has no jurisdiction or mortgage expired with his death, or the acadright to declare a forfeiture.
emy must, if it chooses to convey the real The court held, first, that equity has no estate, do so subject to the mortgage. This jurisdiction; and, second, that the payment is clearly incompatible with the definite of the income to Patterson was not a viola- stipulations of the deed. Patterson evidenttion of the contract, but in accordance with ly intended the mortgage as security for the interpretation of the contract as placed payment of the annuity, and that with his thereon by the parties.
death and the termination of the annuity The principal grounds upon which appel- the mortgage should likewise expire. Unlants seek a reversal of the decree dismiss- der no other construction could the academy ing the bill are, first, that the payment of convey the full fee-simple title to the land. the annuity out of the income of the prop The mortgage having been given to secure erty transferred was a violation of the con- the payments of the annuity only, there havtract to use such income exclusively for ing been no default' in such payments, and school purposes, and that, this being so, a the mortgage having died with the mortgacourt of equity will enforce the forfeiture gee, there is nothing left for a court of clause of the contract as made by the par- equity to foreclose. It might be a matter ties; second, that a court of equity has ju- of some interest to contemplate the characrisdiction of the action because it involves ter of foreclosure decree to be entered on the foreclosure of a mortgage; third, there a mortgage such as appellants contend this was no waiver or estoppel on the part of to be, if that question were in the case. Patterson; and fourth, the court erred in  It follows that the only possible repermitting incompetent testimony to be in- lief remaining is the forfeiture which the troduced.
contract stipulated shall arise in case the We will consider first the question of the academy shall fail to carry out its agreejurisdiction of a court of equity in this case ment as to the use of the funds. This forin the light of the admitted circumstances. feiture is by the contract to arise on a con
 Appellee contends that the mortgage dition subsequent. If we were to concede, in the case was given only for the purpose of which we do not, that there has been a securing the payments of the annuity, and breach of the contract, we have in this case that, since it is stipulated that there was no a bill to declare a forfeiture on the ground default in those payments, there was no de- of the breach of a condition subsequent. fault under the mortgage, and nothing for a That condition is that the income arising court of equity to foreclose, and therefore from the property conveyed shall be used for nothing in the case of which will take ju- school purposes and none other. A condirisdiction. Appellants earnestly urge that tion subsequent is to be distinguished from the mortgage was given, not only for the a covenant. The consequence of the nonpurpose of securing the payments, but for fulfillment of this condition is the forfeiture securing the enforcement of all the terms of the estate. By such forfeiture the granand conditions of the contract, including the tor may re-enter and possess himself of use of the income for school purposes. It the property. The rule has long been setis necessary only to consider the instruments tled in this state that, while a court of which passed between the parties to deter- equity may in a proper case enforce specific mine the purpose of the mortgage. The deed performance of a covenant, it will not lend transferring the mortgaged real estate to the its aid to enforce a forfeiture because of the academy gave it a right to sell the real estate breach of a condition subsequent in a deed after the death of the grantor, "by a good or contract conveying property. That the and sufficient deed of conveyance, and there- breach in this case, if there is a breach, is by convey the full fee-simple title in and of a condition subsequent is shown by the to said lands, or any part thereof, to any language of the contract and the deed, purchaser.” The contract provides for the "that should the party of the second part use of the endowment fund, not only dur-at any time fail or refuse to maintain an ing the life of Patterson, but indefinitely institution for educational purposes under thereafter. It seems clear that it was the its charter, and fail or refuse to expend intention of the grantor, as shown by the the annual income exclusively for school
(144 N.E.) purposes as provided for in its articles of
(312 Ill. 376) incorporation, then said endowment fund MELIN, State's Atty., et al. V. COMMUhereby granted shall revert to and vest in NITY CONSOL, SCHOOL DIST. NO. the party of the first part," etc. In Tarr v.
76 et al. (No. 15578.) Stearman, 264 Ill. 110, 105 N. E. 957, the complainant filed a bill to restrain the de- (Supreme Court of Illinois. April 14, 1924.
Rehearing Denied June 10, 1924.) fendant from managing, controlling, and retaining possession of a dental business, 1. Dedication Cw44_Evidence of title to land from retaining possession of personal prop- platted need not be produced. erty used in the business, and from engag- To establish a dedication by platting of ing in the practice of dentistry within 25 land, evidence of title to the land platted is miles of the city of Springfield without the not required to be produced. written consent of the complainant. The
2. Dedication en 19(1)-May be made by surcomplainant based his right to relief upon a
vey and plat alone. certain contract, wherein, by reason of prom
A dedication may be made by a survey and ises on the part of the defendant, the com
a plat alone, since the words on the plat inplainant had transferred his dental busi- dicate the intention of the dedicators. ness in the city of Springfield to him. The contract was a contract of conditional sale, 3. Dedication.m44-Can be established in any
way by which intention to dedicate may be and the complainant claimed a right of for
evinced. feiture thereof under its terms. It
A dedication of land to a village as a public there held that equity will not interpose to square can be established in any way by which enforce or carry into effect a forfeiture. the intention to dedicate may be evinced. Numerous cases are there reviewed and cit
4. Dedication em44–Exhibition of power of ed holding this doctrine. It is well settled in this state that a court of equity will not
attorney defining powers of trustees for
whom survey was made not necessary to es. lend its aid to enforce a forfeiture because
tablishment of dedication. of the breach of a condition subsequent in
Where plat set aside a public square of 10 a deed or contract conveying property. Gol- acres out of 640 acres platted for sale, as a conda Northern Railway v. Gulf Lines Rail- public square, it was immaterial in proving the road, 265 Ill. 194, 106 N. E. 818, Ann. Cas. dedication that the persons for whom the sur1916A, 833; Moore v. Martin, 233 Ill. 512, vey was inade were designated as trustees for 84 N. E. 630; Toledo, St. Louis & New Or- an association and no power of attorney defin. leans Railroad Co, v. St. Louis & Ohio River ing their powers was exhibited. Railroad Co., 208 Ill. 623, 70 N. E. 715; 5. Dedication en 37, 44-Acceptance may be Dunne v. Minsor (No. 15883) 143 N. E. 842. implied from user by public for purpose for
There being no mortgage to foreclose, a which granted, and where beneficial to public court of equity cannot take jurisdiction of is established by slight circumstances. the subject-matter of this lawsuit for the An acceptance of a dedication may be impurpose of foreclosing a mortgage.
plied from user by the public for the purpose  Appellants contend that a court of for which the land was donated, and where equits has jurisdiction of this matter be- stances are necessary to indicate such accept
beneficial to the public only slight circumcause it involves a trust, and,
having jurisdiction for that purpose, it will proceed to determine the questions in
6. Estoppel Om62(4)–Municipalities not esvolved in the case. A court of equity has
topped except under special aircumstances plenary jurisdiction in the administration
making it inequitable or oppressive to en
force public rights involved. of trust estates in the hands of trustees.
In matters involving strictly public rights, Frackelton v. Masters, 249 Ill. 30, 94 N. E. courts do not interpose to hold the municipal124; Sherman v. Leman, 137 Ill. 94, 27 N. ity estopped except under special circumstancE. 57. The purpose of this bill, however, , es which would make it highly inequitable or is not to administer a trust. Appellants are oppressive to enforce such public rights. not seeking to compel the academy to carry 7. Schools and school districts C21-School out the terms of the trust, but are seeking
districts are "quasi municipal corporations.” to terminate the trust by the enforcement
School districts are quasi municipal corpoof the forfeiture clause of the deed and con- rations, being involuntary political or civil ditract by reason of a breach of a condition visions of the state created purely as auxiliaries subsequent therein. We are of the opinion, of the state to aid in the general administratherefore, that the court of equity had notion of the government. jurisdiction in this case, and the chancellor [Ed. Note.-For other definitions, see Words did not err in dismissing the bill.
and Phrases, Quasi Municipal Corporation.] It does not become necessary to consider 8. Schools and school districts om 21-School other questions raised on the record.
district's powers limited to those expressly For the reasons indicated, the decree will
granted or necessarily implied. be affirmed.
A school district has no powers other than Decree affirmed.
those expressly granted, or except as a Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
sult by necessary implication from those evidence that that portion of the public square granted.
inclosed for school purposes had at the same
time been used for the general purposes to 9. Municipal corporations 721(1)-Munici
which a public square might be put, and had pality cannot appropriate public park to erection of buildings.
a bạndstand and a speaker's stand thereon. A municipality cannot without statutory
Dunn, J., dissenting. authority appropriate any part of a public park to the erection of buildings for administrative Error to Circuit Court, Henry County; purposes as for town or city balls, courthouses, Charles J. Searle, Judge. schoolhouses, etc.
Bill by Carl A. Melin, State's Attorney, 10. Schools and school districts Om68-School and others, against the Community Consolidistrict not empowered to construct school dated School District No. 76 and others. Debuilding in public park.
A school district had no right to appropri- cree of dismissal and complainants bring erate a part of a public park for the erection
Reversed and remanded, with direcof a school building, even though the school tions. might be beneficial to the public.
Carl A. Melin, State's Atty., of Cambridge, 11. Estoppel 62(4)–Municipal corporation and Sturtz & Ewan, of Kewanee (John T.
may be estopped when acting in private ca- Kenworthy, of Rock Island, of counsel), for pacity.
plaintiffs in error. A municipal corporation, when acting in its T. W. Hoopes, of Springfield, James H. private, as contradistinguished from its gopo Andrews and Martin E. O'Connor, both of ernmental, capacity, may be estopped.
Kewanee, Andrew Olson, of Moline, and 12. Estoppel em 62(5)-Rule as to estoppel of Erman King, of Cambridge, for defendants
municipal corporations by acts of officers in error.
CARTER, J. The bill of complaint in this invoked as against a municipal corporation acting in its governmental capacity, there must case as it was finally amended was filed in have been some positive acts by the municipal the circuit court of Henry county by the officers which may have induced the action state's attorney on the relation of four resiof the adverse party under circumstances mak- dents, taxpayers and electors of the village ing it inequitable to permit the corporation to of Andover, to enjoin the construction of a stulrify itself by retracting what its officers schoolhouse on the public square of the vilhave done, mere nonaction by officers or ad-lage. The court dismissed the bill for want verse possession being insufficient.
of equity, and the complainants have 13. Estoppel Em 62(1)-When doctrine of es- brought this writ of error. toppel in pais applicable to public stated. There is no controversy about the material
The doctrine of estoppel in pais applies to facts. A plat of the village of Andover was the public only to the extent that it leaves the filed in the recorder office of Henry coun. courts to decide the question from all the cir ty on March 7, 1842, which was annexed to cumstances of the case, and to hold the public
a certificate of Arba M. Seymour, county estopped or not, as right and justice may require; the doctrine being applicable only as a
surveyor of Henry county, dated May 17, means of preventing injustice or fraudulent 1838, that the town of Andover was laid off results.
on the north half of section 17 and the south
half of section 8, in town 15 north, range 2 14. Estoppel 62(8)-Town may be estop-east of the fourth principal meridian, for ped to deny school district's right to use
Ithamar Pillsbury, Eben Townsend, and Edpublic square for school purposes.
A town may, by permitting a school dis- ward A. Mix, trustees for the New York trict to use a public square as a site for a
Association, and that the annexed map and school building, be estopped to deny the school the references contained in the certificate district's right to use the land for such pur- were a copy of the town of Andover, in pose; but in such case there must be clearly Henry county, state of Illinois. The docuan abandonment by the town or public, and an ment also bore the certificate of two of the adverse holding by the school district.
county commissioners of Henry county that 15. Estoppel 62(8)-Town held not estop- the plat was a tive and correct plat of the
ped to deny school district's right to use town of Andover, together with their acpublic square for school purposes.
knowledgments and the signatures and acThe continued occupancy and use of part knowledgments of the trustees named in the of a public square by a school district for surveyor's certificate. The land platted was school purposes for more than 60 years did divided into 49 blocks of 10 acres each, each not estop the town from denying the school block being subdivided into 4 lots, which district's right to use the public square for school purposes and to construct new building
were numbered, except the center block of thereon, in the absence of a showing that the the plat, which was marked “Public Square." school district's use of the land was adverse Two lots north of the public square were to the claims of the public, and in view of marked "Public Buildings," and 4 other lots
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