Opinion
December 16, 1932.
1. LANDS: Pleadings. In considering a demurrer to a petition in several counts, to quiet title to real estate, in ejectment and partition, where the deed under which the plaintiff claims is set forth in the first count and referred to in the other counts, the judicial construction of the deed is involved in each count.
2. LANDS: Pleadings: Conclusions. In considering such demurrer the conclusions of law and conclusions on the facts set forth in the petition will be ignored.
3. LANDS: Determinable Fee. In a determinable estate the condition forms a part of the limitation in the grant; by the terms of the grant the estate is to continue until the happening of some event; the proper words for the creation of such an estate are, "until," "during," "so long as," and the like.
4. LANDS: Determinable Fee. Where a deed to the city of St. Louis of land for a courthouse site conveyed all the right, title, claim, interest and estate, of the grantors, it negatives the idea of a reverter.
5. LANDS: Determinable Fee: Habendum Clause. Where a conveyance of all the right, title, etc., of the grantors was made to the city of St. Louis, "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 Courthouse of the County of St. Louis shall be erected," the words "upon condition" appearing not as a part of a limitation upon the grant but used to introduce a new clause, the estate granted was not a determinable fee.
6. LANDS: Deeds: Condition Subsequent. A deed which conveyed the right, title and interest of the grantor upon the condition that the land conveyed should be used forever as a courthouse site, with no expressed provision for re-entry or reconveyance, was not a conveyance upon a condition subsequent.
7. LANDS: Deeds: Condition Subsequent: Implied Re-entry. In such conveyance where there was no expressed condition for re-entry and no circumstances tending to show an intention on the part of the grantors to provide for re-entry, but circumstances tending to show an intention to convey the fee, a right of re-entry cannot be implied.
Appeal from Circuit Court of City of St. Louis. — Hon. Claude O. Pearcy, Judge.
AFFIRMED.
H. Chouteau Dyer and J. Raymond Dyer for appellant.
(1) Any trust created under the deed in question was a dry trust, executed by the Statute of Uses. R.S. 1929, sec. 303; Blumenthal v. Blumenthal, 251 Mo. 693; Pugh v. Hayes, 113 Mo. 424. (a) The fact that the grant may have fulfilled a public need and hence be considered charitable does not preclude plaintiff from recovery. Zollman; Am. Law of Charities, sec. 639; 5 R.C.L. 338-339, sec. 68; 11 C.J. 325, sec. 36; Stuart v. Easton, 74 F. 854; Morristown v. Morristown, 82 N.J. Eq. 521; Catron v. Scarritt Institute, 264 Mo. 713; Norton v. Valentine, 135 N.Y.S. 1084. (b) Even though the grant be considered charitable the allegation of abandonment requires a reversal of the lower court's decision. Strother v. Barrow, 246 Mo. 241; Golding v. Gaither, 113 Md. 187; People v. Braucher, 258 Ill. 604. (2) In construing deeds the controlling canon of construction is to ascertain the meaning of the grantor from the words used in the light of circumstances which surrounded, attended and waited upon his use of them. Long v. Timms, 107 Mo. 512; Aldridge v. Aldridge, 202 Mo. 565; Speed v. Railroad, 163 Mo. 111. (a) The intent of the grantor having thus been determined the deed must be construed in conformity with it. Murphy v. Carlin, 113 Mo. 112. (b) The official circumstances surrounding the making of the deed indicate an intention on the part of the grantors to limit and condition their grant. Deed of Acceptance, Book M, p. 421, Office of Recorder, St. Louis; 1st Session of 2d Gen'l Assembly (Mo.), Chap. XL., p. 63 (1820 Ed., Laws of Missouri). (c) The circumstances personal to the grantors surrounding the making of the deed indicate the same intention. Plat of Lucas and Chouteau Addition, Book F, p. 2, Office of Recorder, St. Louis. (d) The additional canon of construction for deeds, requiring them to be construed as acted upon, requires a construction in conformity with plaintiff's contentions. Patterson v. Camden, 25 Mo. 13; Jones v. De Lassus, 84 Mo. 541; Gas Light Co. v. St. Louis, 46 Mo. 121. (e) Inasmuch as a condition rather than a purpose is declared, the deed does not convey an absolute fee simple title. Hand v. St. Louis, 158 Mo. 204. (f) Inferences to be properly drawn from the position of the deed of acceptance on the parchment, antedating and preceding the deed of conveyance, coupled with requirements of the act and the peculiar spelling of the word "site" in both deeds, indicate a previous preparation by the grantees of the deed of conveyance which requires it to be construed against them. 4 Thompson: Real Prop., sec. 3166; 2 Tiffany: Real Prop. (2 Ed.) p. 1618. (g) The deed must be construed in favor of the grantors for the additional reason that the grant was a gratuitous one. 8 R.C.L. 1104, sec. 161; Rawson v. School District, 7 Allen, 125; Flaten v. City of Moorehead, 51 Minn. 518, 19 L.R.A. 195; Hudson: Conditions Subsequent in Conveyances in Missouri: Univ. Mo. Bulletin, 5 Law Series 1; Wood v. Kice, 103 Mo. 329; Tracy v. Bittle, 213 Mo. 302. (h) This rule is particularly applicable where, as here, the gratuitous grant was for a public purpose. Papst v. Hamilton, 133 Cal. 631, 66 P. 10; May v. Boston, 158 Mass. 21. (i) The conditional language of the deed cannot be construed as but imposing a covenant on the part of the grantees. Clark v. Inhabitants of Brookfield, 81 Mo. 503; Upington v. Corrigan, 151 N.Y. 143, 45 N.E. 359. (j) The fact that the land was granted and forever set over to trustees and their successors forever does not indicate that an absolute fee simple was passed, inasmuch as the grant was conditioned and qualified to a specified use forever, 2 Bl. Com. 107; Slegel v. Herbine, 148 Pa. 236, 15 L.R.A. 547; Gannon v. Peterson, 193 Ill. 372, 55 L.R.A. 701; 4 Thompson; Real Prop., secs. 3317, 3318; 2 Tiffany: Real Prop. (2 Ed.) sec. 437. (k) Since the granting clause qualifies the habendum clause the estate granted must be either a determinable fee or a conditional fee 4 Thompson: Real Prop., sec. 3320; Jamaica Pond Aqueduct Co. v. Chandler, 9 Allen, 159. (3) The estate granted was that of a determinable fee since it might have endured forever or might revert on the happening of the contingency of nonuser of the property as the courthouse site. Wiggins Ferry Co. v. Ry. Co., 94 Ill. 83; Mendenhall v. Church Society, 177 Ind. 336; Jordan v. Goldman, 1 Okla. 406. (4) All the legal characteristics and requirements necessary to the creation of a determinable fee are present in the deed in question. 1 Washburn: Real Prop. (6 Ed.) secs. 162, 164, 165, 167, 170; 1 Tiffany; Real Prop. (2 Ed.), sec. 93; 3 Thompson; Real Prop., sec. 2105; Goodeve: Modern Law of Real Prop. (3 Ed.) p. 81. (a) The future tense is used. (b) The requirement of use of the property presupposing and including the requirement of erection of any building thereon is emphasized (c) The qualifying clause is made part of the description of the estate granted. Goodeve; Modern Law of Real Prop. (3 Ed.) p. 180: Challis; Real Prop. (1885), p. 206; 3 Thompson: Real Prop. sec. 1966; Chapin v. Harris, 8 Allen, 594. (d) There is no needless reservation of a right to regain. Adams v. Lindell, 5 Mo. App. 197, affirmed 72 Mo. 198; 2 Devlin: Deeds (3 Ed.) sec. 974. (e) Though conditional words are used, they are such as may create a determinable fee. Challis: Real Prop. (1885), pp. 198, 201-206; Black: Law Dict.; Tiedeman: Real Prop. (4 Ed.) sec. 211; Diamond v. Rotan, 58 Tex. Civ. App. 263; Attorney-General v. Pyle, 1 A. 435. (5) The works of legal writers having to do with determinable fees support plaintiff's contention that such was conveyed by the deed in question. Richard R.B. Powell, 23 Colo. L. Rep. 206; Manley O. Hudson: "Conditions Subsequent in Conveyances in Missouri." Univ. of Mo. Bulletin, 5 Law Series 1. (6) The cases having to do with determinable fees support plaintiff's contention that such was conveyed by the deed in question. First Universalist Society v. Boland, 155 Mass. 171, 15 L.R.A. 231; Denver Railroad Co. v. School District, 14 Colo. 327; Watson v. Tracy, 77 Ind. App. 163; Pond v. Douglas, 106 Me. 85; Lyford v. City of Laconia. 75 N.H. 220; Savings Institute v. Roxbury Home, 244 Mass. 583; Board of Freeholders v. Buck, 79 N.J. Eq. 472; Low v. Thompson. 109 N.Y.S. 750; Re Machu (1882), 21 Ch. D. 838; Collier v. Walters (1873). L.R. 17 Eq. 252; Henderson v. Hunter, 59 Pa. 335; Kirk v. King, 3 Pa. 436; Bolling v. Petersburg, 8 Leigh, 224; Police Jury v. Reeves, 6 Mart. 221; North v. Graham, 235 Ill. 178, 18 L.R.A. (N.S.) 624; McIntire v. Dietrich, 294 Ill. 126; Stubbs v. Abel, 114 Or. 610. (7) Defendant city took the property from its predecessor in title subject to the same determinable quality which characterized it in the hands of the first holder. Boye v. Boye, 300 Ill. 508; Gout v. Townsend, 2 Denio, 336; Riner v. Fallis, 176 Ky. 575; Fox v. Van Fleet, 160 Ky. 796. (8) The possibility of reverter passed to plaintiff, as an heir of the grantors, by right of representation. 1 Washburn: Real Prop. (6 Ed.) sec. 171; Puffer v. Clark, 202 Mich. 169. (9) The rule against perpetuities has nothing to do with determinable fees. 24 Halsbury's Laws of England (1912), p. 171; Gray: Rule Against Perpetuities (2 Ed.) p. 312; Attorney-General v. Cummins (1906), 1 Ir. Ch. 409; French v. Old South Society, 106 Mass. 479; Seymor's Case, 10 Co. Reports 95 b. (10) The doctrine of reverter by reason of the impossibility of future use of the propery as the courthouse site is applicable by reason of the allegation of its abandonment as such as ordered by lawful authority. 3 Dillon: Municipal Corporations (5 Ed.) sec. 1106; Goode v. St. Louis, 113 Mo. 257; Gaskins v. Williams, 235 Mo. 563. (11) The law in Missouri supports plaintiff's contention that the estate conveyed was that of a determinable fee. Dumey v. Schoeffler, 24 Mo. 170; Hoselton v. Hoselton, 166 Mo. 182; Gaskins v. Williams, 235 Mo. 563; Hudson: "Conditions Subsequent in Conveyances in Missouri." Univ. of Mo. Bulletin, 5 Law Series 1. Bredell v. Westminster College, 242 Mo. 317; Hoke v. Farmers Club, 194 Mo. 576. (12) The estate granted may be considered as that of a conditional fee, inasmuch as express words of condition are used. Powell: 23 Colo. L. Rep. 206; Challis on Real Prop. (1885), p. 206; Weinreich v. Weinreich, 18 Mo. App. 364; Dissent in Stillwell v. St. Louis Railroad Co., 39 Mo. App. 231; Kales: Future Interests (2 Ed.) sec. 222. (a) Words of re-entry are not necessary to the creation of a conditional fee. Brooks v. Gaffin, 192 Mo. 228; Smith v. Mercantile Co., 170 Mo. App. 27; Catron v. Scarritt Institute, 264 Mo. 713; Church of the Holy Ghost v. Schreiber, 277 Mo. 113; Ruddick v. St. Louis etc., Railroad Co., 116 Mo. 25; Gray v. Blanchard, 8 Pick. 283. (b) Where express words of condition are used, as in the deed in question, there can be no room for construction. Papst v. Hamilton. 133 Cal. 631; Brown v. Chicago etc., Railroad, 82 N.W. 1003; Adams v. Valentine, 33 F. 1; Hammond v. Port Royal Railroad, 15 S.C. 10; Blanchard v. Mich. Railroad, 31 Mich. 43. (13) Defendant city's contention that a substantial compliance with the requirements of the deed renders plaintiff's petition demurrable has no foundation when the deed is construed as having conveyed a determinable fee. (a) Construing the deed as conveying a conditional fee, the doctrine of substantial compliance cannot be applied to defeat plaintiff's right of re-entry for condition broken, for that compliance falls short of the specific requirement that the property be used as the courthouse site forever. Texas Pac. Railroad v. Marshall, 136 U.S. 393; Richards v. Delbridge, L.R. 18 Eq. 11; Webster's Dict. 1928; 3 Oxford Dict.
Julius T. Muench, Oliver Senti, Leonard J. Holland and Jacob F. Pfeffle for respondent.
(1) The sufficiency of the petition is to be tested by the legal effect of the pleaded deed of Lucas and Chouteau and not appellant's conclusions as to such effect. Edgar v. Emerson, 235 Mo. 560; Donovan v. Baeck, 217 Mo. 85; Blaine v. Knapp Co., 140 Mo. 248; Ely v. Azoy, 80 N.Y.S. 620; Lumber Co. v. Griffin, 45 So. 515; 32 Cyc. 1351; 19 C.J. 1128. (2) The conveyance to the county court justices vested title in the county, which subsequently passed to the city of St. Louis. Abernathy v. Dennis, 49 Mo. 470; County Court v. Griswold, 58 Mo. 175; Secs. 3115, 12128, R.S. 1929; (3) 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. p. 296, sec. 8, and pp. 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. (4) 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. (5) 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, 1059, secs. 14, 109; Young v. Ringoes, 1 T.B. Monroe, 30; Chancellor v. Bell, 17 A. 685; Hamblin v. Meeting House, 103 Me. 343. (6) 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. (7) 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, 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.; Zollman 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; Episcopal City Mission v. Appleton, 117 Mass. 326; Ward v. Klamath Co., 217 P. 927; Garfield Tp. v. Herman, 71 P. 517; Thornton v. 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. Presby, 3 L.R.A. 227; Fitzgerald v. Modoc Co., 164 Cal. 493. (8) 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. (9) 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 to make a gift or donation of the property in controversy. Act of 1822, Laws Mo., Vol. 1, p. 989. (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 and 856.
Action by plaintiff as heir-at-law of Auguste and Therese Cerre Chouteau, who, with John B.C. Lucas, were the donors of land in the city of St. Louis on which the courthouse in said city was located. He claims an interest in said land because the building thereon is no longer used as the courthouse of said city. The petition is in four counts. The first count is under Section 1520, Revised Statutes 1929, to try and determine title. The second and third counts are in ejectment, and the fourth count in partition. On the court sustaining a demurrer to the petition, plaintiff declined to further plead, and judgment was entered for defendant city. Plaintiff appealed.
If the first count had been conventional, the pleading would have been proof against demurrer. [Huff v. Laclede Land Co., 157 Mo. 65, 57 S.W. 715.] But in said count plaintiff set forth the deed of conveyance as the basis of his claim of interest in said land. Therefore, it formed a part of said count. [Edgar v. Emerson, 235 Mo. 552, 560, 139 S.W. 122.] Furthermore, in counts two, three and four reference was made to the deed set forth in the first count and plaintiff's claim of right to possession under counts two and three, and claim of right to partition under count four rest on his claim of interest under said deed. In other words, each count of the petition is based upon and involves the judicial construction of said deed. Plaintiff does not claim that all the facts necessary to a determination of the case are not alleged in the petition. Indeed, be invited the trial court and invites this court to dispose of the case on a construction of the deed. [2] In this connection it should be stated that conclusions of law and conclusions on the facts as set forth in the petition will be ignored. [Donovan v. Bocck, 217 Mo. 70, 80-85, 116 S.W. 543.] We now state the pertinent facts alleged in the petition.
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 an 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 marked 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.
Plaintiff and the city agree that any trust created under the deed was a dry trust, executed by the Statutes of Uses. They also agree that the conveyance was neither a common-law dedication nor a statutory dedication of the land for public use.
The second count of the petition proceeds upon the theory that the deed conveyed a determinable fee. The third count proceeds upon the theory that the deed conveyed a conditional fee. Defendant city contends that the deed conveyed an absolute fee. In other words, the plaintiff and defendant city agree that the case turns on a construction of the deed. In this connection plaintiff states "it must be borne in mind that it is upon the construction of the deed in the instant case, and not of the deeds in other cases, that this demurrer depends. Each case depends upon its own facts. If the deed passed the absolute fee, the demurrer lies, but if it passed a determinable fee, or if it passed a conditional fee, it does not lie."
In counts two and three of the petition plaintiff pleaded in the alternative. He thereby pleads that the deed conveyed either a determinable fee or a conditional fee. However, he insists that the deed conveyed a determinable fee. In a determinable estate the condition is incorporated into and forms part of the limitation (grant). [Goodeve: Modern Law of Real Property (3 Ed.) 180.] The grant in such case is not upon a condition subsequent, and no re-entry is necessary; but by the terms of the grant the estate is to continue until the happening of some event. And upon the happening of said event, the estate will cease and determine by its own limitation. The proper words for the creation of such an estate are, "until," "during," "so long as," and the like. [Thompson on Real Property, sec. 2105, pp. 170, 171. Challis: Real Property, 1885, p. 206.]
As stated by defendant city "the deed under consideration uses none of these words, nor does it use any other expression indicating an intention to cut the title to a base or determinable fee, nor is there any clause in the deed providing for a reverter. The conveyance of `all of their right, title, claim, interest and estate,' by the grantors directly negatives the idea of a reverter. The grant was forever, and not `so long as,' `while,' `during' or `until.'"
Plaintiff argues that the words of condition following the habendum clause of the deed is an expression indicating an intention to convey a determinable fee. We do not think so. The condition follows: ". . . 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." The words "upon condition" may be used to form a part of a limitation (grant) and thereby convey a determinable fee. But in this deed said words introduced a new clause. [3 Thompson, Real Prop., sec. 1966.] They were superadded to the limitation of the estate. [Goodeve: Modern Law of Real Property (3 Ed.) p. 180; 1 Tiffany: Real Prop. (2 Ed.) sec. 90.] It follows that the deed did not convey a determinable fee.
Defendant next contends that if the deed did not convey a determinable fee, it conveyed an estate upon condition subsequent. The difference is stated as follows:
"The distinction between an estate upon condition, and the limitation by which an estate is determined upon the happening of some event, is that in the latter case the estate reverts to the grantor or passes to the person to whom it is granted by limitation over, upon the mere happening of the event upon which it is limited, without any entry or other act; while in the former the reservation can only be made to the grantor or his heirs, and an entry upon breach of the condition is requisite to revest the estate. The provision for re-entry is therefore the distinctive characteristic of an estate upon condition, and when it is found that by any form of expression the grantor has reserved the right, upon the happening of any event, to re-enter and thereby revest in himself his former estate, it may be construed as such." [2 Devlin: Deeds (3 Ed.) sec. 974.]
In the deed under consideration there was no express provision for re-entry. And in his brief plaintiff states that "they (grantors) incorporated into their deed no provision for re-conveyance nor indeed any reservation of right to regain at all." In Haydon v. Railroad, 222 Mo. 126, l.c. 139, 121 S.W. 15, quoting in part from Studdard v. Wells, 120 Mo. 25, 25 S.W. 201, we said:
"`. . . It is a familiar rule often asserted in the books that conditions subsequent are not favored in the law, because they have the effect in case of breach to defeat vested estates; and when relied upon to work a forfeiture they must be created in express terms or by clear implication. [2 Wn. on Real Prop. (5 Ed.) 7; Morrill v. Railroad, 96 Mo. 174.] And courts will construe clauses in deeds as covenants rather than conditions, if they can reasonably do so. [2 Wn. on Real Prop. (5 Ed.) 4.] It is also true that the question whether a clause in a deed is a condition or a covenant, is one of intent to be gathered from the whole instrument by following out the object and spirit of the deed or contract. [St. Louis v. Wiggins Ferry Company, 88 Mo. 618.] . . .'
"In addition to the general principles, outlined above, we may add that it is a familiar doctrine that forfeitures (putting it with mildness) are not favored in equity; and that (while not controlling) it is not entirely without significance that there is no express provision making the subsequent standing of cars on the switch a condition subsequent, or a mutual dependent covenant, nor is there shown to be any clause of reverter in the deed, and we are left to an interpretation of the contract by the good sense of the thing in the light of its subject-matter and language used."
And in Catron v. Scarritt Collegiate Institute, 264 Mo. 713, l.c. 723, 175 S.W. 571, we also said:
"While a condition subsequent may be inserted in a conveyance of lands in a fee without using express terms of reverter upon the breach of such condition, if the deed in its entirety and the circumstances attending its execution, demonstrate that the object of the grantors was to cause a reversion of the estate upon the subsequent happening of a lawful condition: yet no such conclusion will be drawn if it may be avoided by any other reasonable construction of the language of the deed. This is the settled policy of the law. The reason of which is, that estates once vested in fee, ought not be up-rooted, except upon proof of the happening of a lawful condition attached to the continuance of the estate by the terms of the deed, and further proof that it was the intention of the grantor in making the conveyance that it should revert when this condition ceased to exist."
To the same effect, German Church v. Schreiber et al., 277 Mo. 113, l.c. 127, 209 S.W. 914.
In an effort to bring himself within the rule, plaintiff contends that a right of re-entry should be implied from the expressed condition in the deed and the circumstances surrounding the execution of the deed. He points to no circumstance tending to show an intention on the part of the grantors to provide for re-entry. On the contrary, the circumstances tend to show that the grantors intended to convey the fee. They were dealing with the State under a statute, the terms of which called for a conveyance of the fee. The statement in the statute 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. As stated, the grantors owned the lots surrounding the land donated. The location of the courthouse on said land would enhance the value of those lots. In the absence of authority under the statute to convey a determinable fee, or a fee on condition subsequent, the grantors imposed a confidence or trust on the land by the condition set forth in the deed. That confidence was not wholly misplaced for the courthouse was located on said land for a century. Plaintiff cites cases in which a deed or lease provided for a forfeiture. Of course, the right of re-entry is implied from a provision for forfeiture. The deed under consideration contained no such provision.
It follows that plaintiff and defendant unknown heirs and descendants, devisees and grantees of Auguste Chouteau and Therese Cerre Chouteau, his wife, and of John B.C. Lucas have no interest in the land described in the petition. The demurrer was well ruled, and the judgment should be affirmed. It is so ordered. All concur.