TRUST ESTATES.

[Franklin Circuit Court,

January Term, 1891.]

Shearer, Stewart and Shauck, JJ.

#### *JOHN A. WATTERSON, TRUSTEE, v. THERESA URY ET AL.

1. Naked Possession is Sufficient in Action to Quiet Title, Hence Answer of Unlawfulness is Insufficient.

In an action to quiet title, naked possession is sufficient, in the absence of proof of title paramount in the defendant, to entitle a plaintiff to a decree against the defendant, though it be illegal against others. Hence in such action, an answer admitting plaintiff’s possession, but averring that such possession is unlawful, is^ insufficient.

2. Covenants of Warranty Estop Grantor’s Heirs from Denying Consideration.

Heirs at law of a grantor for value of real estate in trust for charitable uses are estopped, by the covenants of warranty of such grantor from denying the consideration expressed in the deed, or asserting title against the trusts created thereby.

3. Impossibility of Performing Conditions Makes Grant Absolute.

Conditions subsequent are not favored, and are to be strictly construed. The statement of the object of a grant does not render the grant conditional. A deed upon a valuable consideration declaring the purpose for which the granted premises shall be used, which purpose is in its nature general and public, and which contains no words indicating an intent that the grant is to be void if the declared purpose is not fulfilled, is not a grant upon condition subsequent, and the estate is not forfeited, but the condition is, and the grant is absolute.

4. Impossibility of Executing thf, Trust no Cause for Appointing New Trustee.

If a trust has become impossible of execution the trustee will not be removed and a new one appointed, for that would be decreeing a vain thing.

*1725. A Deed oe Grant without Clause eor Forfeiture or Re-entry, Creates a Trust, without Reversion in Grantor’s Heirs.

A grant of real estate, purporting to be upon a valuable consideration, to be held by the “grantee, his heirs and assigns forev.er as a burial ground for Roman Catholics,”' containing a covenant to “forever warrant and defend said premises with the appurtenances against the lawful claims of all persons whomsoever, to be held by such grantee in trust for the Roman Catholics of Columbus, Ohio,” and containing no words of forfeiture or re-entry, is not a grant upon condition ; and a discontinuance or diversion of the use contemplated by the grant will not entitle the heirs at law of the grantor to recover the granted premises.

Appear from the Court of Common Pleas of Franklin county.

Submitted upon demurrer to the second amended answer.

The plaintiff for his cause of action avers:

“That ever since the year 1880, he has been, and now is, bishop of the Roman Catholic church in and for the diocese of Columbus, which includes Franklin county; that by and under the laws of the church and by virtue of his office all the property of said church within the diocese, except such as is vested in certain incorporated societies, is held by him in trust for the sole use and benefit of said church; that among the property so held is a parcel of real estate, which is particularly described in the amended petition, containing three and three quarters acres, more or less; that as such Bishop, plaintiff is in possession of and holds the legal title to said premises in trust for the Roman Catholics of Columbus, O.

“That defendants claim an interest in said real estate adverse to plaintiff’s rights, as aforesaid, asserting their claim under a deed from Samuel Brush to Peter Ury, now deceased, and also under a deed executed by said Ury and wife, now deceased, to John Baptist Purcell, the then Bishop of Cincinnati, by virtue of the following language used in said deed, to-wit: ‘To have and to hold said premises with their appurtenances unto said Purcell, as such Bishop, as a burial ground for Roman Catholics, his heirs and assigns forever.’

“That burials in said premises have been prohibited ever since the - day of -; and that since then the same has not been used as a burying ground, and that the remains of most of those buried there have been removed and interred in a new cemetery provided for the Catholics of Columbus and vicinity.”

. Plaintiff prays that defendant’s claim may be adjudged null and void; that his title may be quieted, and for other relief.

The second amended answer contains two defenses:

1. “The defendants deny that plaintiff holds said premises in trust for the Roman Catholic church. They admit he is in possession, but aver that his possession is unlawful, and that burials upon said premises have not been prohibited by any civil or legal authority; although by direction of plaintiff no interments have been made in said premises since 1874.

“They deny the ownership of said plaintiff, because they say that on September 11, 1848, one Peter Ury, the common ancestor of the defendant, Johanattá Ury, his wife, joining, for the nominal, but not real, consideration of $600, conveyed said realty to John Baptist Purcell, then Bishop of Cincinnati, to have and hold said premises with the appurtenances, as a burial ground for the Roman Catholics, and to him and his heirs and assigns forever. That said conveyance contained a covenant that said Ury and his heirs would ‘forever warrant and defend said premises with the appurtenances against the lawful claims of all persons whomsoever, to be held by said Bishop in trust as a burial ground for the Roman Catholics, of Columbus, Ohio.’ That said Purcell accepted said trust, and under his direction bodies of deceased Roman Catholics of Columbus were buried for a period of twenty-five years, and that Peter Ury and wife are buried there. That said Purcell continued to administer said trust until about December 29, 1868, when he, for the nominal consideration of one dollar, ‘remised, released and forever quitclaimed to Sylvester H. Rosecrans. Bishop of Columbus, his heirs and assigns forever, the premises aforesaid, and all the estate, title and interest of Purcell, either at law or in equity of, in, and to said premises, together with all the privileges and appurtenances to the same belonging, and all the rents, issues and profits thereof, to have and to hold the same to the only proper use of said Rosecrans, Bishop, his heirs and assigns forever;’ that the conveyance from Purcell to Rosecrans contained no condition and prescribed no use, excepting as just recited.”

“That under said deed of release Rosecrans took possession of said premises, and continued in the execution of said trust until October 21, 1878, when he died, leaving a will, which had been duly admitted to probate, whereby, in accordance with the rule adopted by the Bishops in the United States, he devised and bequeathed all ‘his property and estate, real, personal and mixed, of whatever kind, character or nature, wherever situate, to Most Rev. Jno. B. Purcell, Archbishop of Cincinnati, and six others, and the survivors of them, or any of them, that may be designated by Jno. B. Purcell, Archbishop, or his successors, in trust, that they shall and will, immediately on the installation of the testator’s successor *173in the See of Columbus, convey and assure to such successor, all said property, real, personal anc, mixed, by the same title by which, at testator’s death, he might hold the same;’ the object and purpose expressed, being ‘to secure the said property to the Catholic church, for whose use I received the same.’ ”

“That no other description of said premises, and no other provision in respect thereto, is contained in said will; and that the title to said premises did not pass by said will, nor ■did said testator hold said title for the use of the Catholic church.”

“That in a pretended execution of the trust cast upon them by said will, said devisees, on October 4, 1880, executed a deed to the plaintiff, successor in office to said Rosecrans, ’in consideration of the sum of $1.00 to them paid, whereby they undertook to ‘convey to Rt. Rev. Jno. A. Watterson, Bishop of Columbus, his heirs and assigns forever, all and ■singular the property and estate, real, personal and mixed, of whatever kind or nature and wherever situated, of which the said Rosecrans died the owner, or which he in any way, held or was interested in” — there being no other description of said property in said deed than as just stated, nor any limitation upon the use of the property therein transferred; for which reason it is averred said trustees had no title, and that none passed to Watterson by their deed, and thot he has no title unless he derived the same through the above mentioned deeds and will; ana that said Purcell, under a proper construction of the deed from Urys to him, took no title, claim or interest in or to said land, except to be held by him in trust as a burial ground for the Roman Catholics of Columbus, Ohio, and for no other purpose; and that upon a proper construction of the said ’deeds and of said will, ‘the legal title of said described real estate’ is not now and never was vested in plaintiff for the Roman Catholic church of Columbus, O.

“That at the time of the conveyance by Urys to Purcell, the grantors were of the Roman Catholic faith; that there was no burial ground in Columbus or vicinity, for the separate and exclusive use of the Roman Catholics, and that Peter Ury’s desire for a burial ground exclusively for the burial of Roman Catholics of Columbus, Ohio, where himself and family might he buried, formed the moving, if not sole, consideration for said conveyance; and that no money consideration was ever paid.

“That defendants are heirs at law and next of kin of P. Ury, who died intestate, and are now possessed by inheritance of all the right, title, interest and estate of said P. Ury, in and to said premises; that they are all of the Catholic faith, and are beneficiaries under said deed from their ancestor to said Purcell, and as such are entitled after death to burial in said premises.

“They admit the right of possession of the plaintiff of said real estate as a burial ground for Roman Catholics, in conformity to the trust created by Ury’s deed; and do •not object to, but insist upon such use if possible,” and pray that the court declare that the conveyance by Ury to Purcell vested the title “in the latter in trust as a burial ground for the Roman Catholics of Columbus, Ohio,” and for no other purpose; and that said premises are in no sense the property'of the Roman Catholic church of Columbus, and do not belong to plaintiff as bishop of said church.

The second defense, after repeating substantially the allegations of the first defense, avers;

“That, if it be found that the plaintiff in law is a trustee of said burying ground, he has not administered the trust in accordance with the terms of Ury’s deed, nor according to the spirit and intent thereof; that by his order burials therein were discontinued in the year 1874.”

“That the only consideration ever paid to Ury was by individuals desiring to bury their dead, and arose from the sale of burial permits for certain lots, parts of the land in question, which sales were made by Ury and other Catholics, but no money or other consideration was ever paid by any of said trustees, nor by the Roman Catholic church.

“Defendants further aver that the trust created by Ury has been fully executed, and the lands abandoned as a burial ground by the plaintiff, and by the Roman Catholics of Columbus, and that no burials have been made therein for more than fifteen years, and that plaintiff is not now executing said trust; that the land is in a neglected condition, wholly unprotected by fence, or otherwise; that it is in a populous part of the city, surrounded by dwellings and business houses, and is used by the public in common for passing and repassing, without let or hindrance. That its use as a burial ground is no longer practicable. That by the instrument creating the trust no fund is provided for the repair of the premises, and since the sale of burial permits has ceased, no revenue is received, and there are now no funds, applicable to the improvement or repair of said cemetery; that it is bounded on two sides by public streets, and assessments have been incurred for-their improvement and repair, and are now a lien thereon,’and there is no source from which revenue to pay the same can be derived; and, therefore, defendants aver that said land has been abandoned as a burial ground, and said trust has been fully executed and terminated, but they deny that their use has been prohibited by civil authority; or that another burial ground has been provided for the exclusive use of Roman Catholics at Columbus, near the city; and aver that plaintiff has wholly abandoned, and seeks by this action, to be relieved *174from the execution of, said trust, and to appropriate said property, or the proceeds thereof, to the general use of the church.

“By reason of the premises the defendants claim that the title to said premises has reverted to them as the heirs and next of kin of Ury; but, if this be not so found, then they say that as Roman Catholic citizens of Columbus and beneficiaries of said trust they are entitled to have said trust perpetuated according to its terms, and administered according to the spirit and intention of the party creating the same; and that as Catholic citizens of Columbus they are entitled upon their decease, to be buried in said cemetery.”

It is further averred that the defendant Theresa Ury, widow of Peter, and Barbara, widow of John Ury, are entitled to dower in said premises, and that their co-defendants are tenants in common of said lands, subject to said dower estates, and entitled to partition thereof if said trust shall be found to have terminated. And they pray that said petition be dismissed ; that the trust created by the Ury deed be declared to be continuing, and that it runs with the land; that if the court find that the use of said property as a burying ground is no longer practicable, and has been properly abandoned, the title, both legal and equitable, be declared to be in defendants, and that the same be quieted free of said trust; that said defendants be charged with the expense of the removal of the dead now buried there, and for partition. Or, if it be found that said trust still subsists, and said property is. a suitable burying ground, that said trust be declared to be( perpetual, and running with the land, and that the same be kept and maintained as a burial ground forever; and that plaintiff be removed from the trust, and some suitable person not opposed in interest, or otherwise, to the execution thereof, be appointed in his stead; and that under direction of the court said premises be put and kept in repair, etc.

*

 The judgment in this case was affirmed by the Supreme Court on the ground stated in this opinion, 52 O. S., 687; no further report. The circuit decision, as to forfeiture and reversion, is followed in Church v. Laws, 4 Circ. Dec., 562.

SHEARER, J.

I. In support of the demurrer to the first defense it is argued that the deniaf of possession in the plaintiff is insufficient. The allegation of the petition is that the plaintiff, as Bishop of Columbus, is in possession of and holds the legal title to the premises therein described. This allegation is not expressly denied — the denial being that the plaintiff is in the lawful possession of said premises as bishop, or otherwise.

It has been held by this court at a former term that the naked possession of real estate is sufficient to enable a plaintiff to maintain an action to quiet title, and that unless a better title be shown by defendant, the plaintiff will be entitled to a decree. So that, conceding plaintiff’s possession to be unlawful, he is entitled to have his title quieted as against the adverse claim of the defendants, unless such adverse claim is shown to entitle the defendants to prevail over the mere possession of plaintiff. But if this were not so, such denial of possession is obnoxious to the objection that it is argumentative and is a plea of a legal conclusion. As claimed by counsel, the fact of possession is susceptible of a direct denial, and if not so denied, it is admitted. Boone’s Code Pl., sec. 187.

II. The defendants also deny that there was any consideration for the conveyance by Peter Ury and wife to John Baptist Purcell. Further on they aver that the sole consideration for the conveyance was the desire of said Peter Ury for a burial ground devoted exclusively to the burial of Roman Catholics of Columbus, where himself and family might be buried.

This was a sufficient consideration to support the deed; but if it were not, the heirs of Peter Ury are estopped by the covenants of their ancestor, which are set out in the petition, from denying that there was any consideration for the conveyance. The consideration expressed in the deed is $600, and such recital, in connection with the covenants, concludes the defendants.

In Williams v. Pres. Society, 1 O. S., 478, it is held that “even if the trustees, do not take a fee, yet, if the trust is created by deed, containing a covenant of general warranty, binding the grantor and his heirs forever, such deed may operate by way of estoppel, to confirm to the beneficiaries of the trust the perpetual' and beneficial use in the land.’’

In the same case, Thurman, J., said; “If it (the legal title) is in them (Symmes’ heirs), they are estopped by the covenants of their ancestor from, asserting it against the trusts created by the deeds. ” Id. 505.

*175III. The important question raised by the demurrer is, whether the facts alleged in the second defense operate to terminate the trust, and to invest the heirs of Peter Ury with the title to the premises in controversy.

By his deed, Peter Ury, in consideration of the sum of $600, paid by John Baptist Purcell, bishop, conveyed the premises described in the petition to said Purcell, and to his heirs and assigns forever, as a burial ground;

> “To have and to hold said premises with the appurtenances unto said Purcell, as such bishop, his heirs and assigns forever, as a burial ground for the Roman Catholics; covenanting for himself and his heirs with said Purcell, as such bishop, his heirs and assigns, that he would forever warrant and defend said premises with the appurtenances against the lawful claims of all persons whomsoever; said premises to be held by said bishop in trust as a burial ground for the Roman Catholics of Columbus, O.”

It is to be observed that no condition in terms is annexed to this grant; nor is there any clause providing for forfeiture or re-entry; nor any stipulation that the deed shall be void in any event; nor does the deed, on its face, so far as its contents are recited in the petition or answer, purport to have been made solely in consideration of anything to be done, or for the accomplishment of a specific purpose, on the fulfillment of which the grant is made to depend. And unless some condition, the violation of which would operate as a forfeiture, and result in a reversion, can be fairy implied from the terms of the deed, the claims of the defendants in that behalf must fail. Ayer v Emery, 14 Allen, 70.

And in view of the rule that conditions subsequent are not favored in law, and must be deary expressed and strictly construed, even toan extent hardly reconcilabe with conscience (4 Kent, 130), we are unable to find any condition in this deed.

The statement of the object of the grant does not make the grant conditional.

Bigelow, J., in Rawson v. Uxbridge, 7 Allen, 130, an authority which seems to have been generally followed, says.

> “We believe there is no authoritative sanction for the doctrine that a deed is to be construed as a grant on condition subsequent, solely for the reason that it contains a clause declaring the purpose for which it is intended the granted premises shall be used, where such purpose will not inure specially to the benefit of the grantee and his assigns, but is, in its nature, general and public, and where there are no other words indicating an intent that ihe grant is to be void if the declared purpose is not fulfilled.”

If this be the law, how can it be said that the Ury deed was grant upon condition? It contains a clause declaring the purpose for which the land shall be used, viz.; “A burial ground for the Roman Catholics of Columbus.” Such purpose did not and could not inure specially to the benefit of the grantee and his assigns. It is in its nature general and public; and there is nothing in the deed indicating an intent that the grant is to be void if the declared purpose is not fulfilled. The deed under consideration seems to fall squarely within the doctrine of the case just cited.

In that case the grant was of a tract of land to trustees for a “burying place forever,” and the trustees diverted the use; yet the court said “there can be no doubt of the intent of the grantor that the estate should always be used and appropriated for such purpose. This intent is clearly manifested, but we search in vain for words which indicate an intention that if the grantees omitted to use them, and actually devoted them to another purpose, the whole estate should thereupon be forfeited and revert to the heirs of the grantor.”

Quoting further from the same case:

> “In grants from the crown and in devises a conditional estate may be created by the use of words which declare'that it is given or devised for a certain purpose, or with a particular intention, or on payment of a certain sum; but this rule is applicable only to those grants or gifts which are purely voluntary, and where there is no other consideration moving to the grantor or donor besides the purpose for which the estate is declared to be created. But such words do not make a condition when used in deeds of private persons.” Id. 125.

*176Stearns v. Palmer, 10 Metc. (Mass.) 32, concerned the title to a burying ground; and the court held that where a tract of land was conveyed in trust for the use of thfe inhabitants of the parish for a burying ground forever, to have and to hold to the said grantees in trust, for the use of the inhabitants of said parish and their heirs forever for a burying ground, the grantees took a fee simple. See Skerrett v. Pres. Society, 41 O. S., 606; 4 Kent, 142; 14 Allen, 70; 16 Gray, 327; 79 Ind., 4.

Again, in Baldwin v. Atwood, 23 Conn., 367, the court held that the breach of a trust by which certain real estate was held for religious purposes, would not operate to forfeit the estate but that it was an absolute grant creating a trust, for the purpose specified, to be enforced, if not complied with, by a court of equity, but not followed by forfeiture, or a reverter to the heirs of the grantor.”

And in Brown v. Caldwell, 23 W. Va., 187, the court held:

> “A grant of land for a consideration to a trustee upon trust that the trustee shall, at all times, permit a certain class to use the land as a common burying ground, and for no other purpose, is not a condition subsequent. The heirs of the grantor cannot recover the granted *premises*after they have *ceased*to be used for the purposes declared in the grant, there being no words of forfeiture or re-entry in the grant.”

To create a condition in a grant, apt and appropriate words ought to be used, or a right of re-entry reserved.

In Raley v. Umatilla County, (Oregon) 13 Pac. Rep., 890, the court say a conveyance made to a county ,

> “To have and to hold the said block of ground with the appurtenances thereto belonging unto said party forever, and said party of the first part will warrant and defend the same against all claims whatsoever to the use and benefit of the party of the second part for the special use and none other of educational purposes, and upon which block shall be erected a college, etc., does not create a condition subsequent.”

The words ”in trust, nevertheless, and upon conditions always” to use the premises for public worship, in a deed of land to a religious society, do not necessarily create a condition, but may import merely a trust. 109 Mass., 1; 20 Conn., 26.

From these authorities it seems clear that the estate granted to Purcell by Ury and wife, was not an estate upon condition; but that the grantee took an estate in fee-simple, coupled with a trust to hold the same for the use of the Catholics of Columbus, for a burying ground forever.

This being so, there is no forfeiture, nor any reverter of the title. Ury conveyed for a consideration; divested himself of his entire title, and by his covenants, bound himself and his heirs to protect the'title in the grantee, his heirs and assigns. He annexed no condition or provision for re-entry, or limitation upon the estate granted. He only created a trust.

But suppose the language of the Ury deed created a condition subsequent; would the fact that the fulfillment of the condition became impossible, work a forfeiture or reversion?

Chancellor Kent, in 4 Commentaries, 130, lays down the doctrine that “if the condition subsequent be possible at the time of making it, and afterwards becomes impossible by the act of God, or of the law, or of the grantor; or if it be impossible at the time of making it, or against the law, the estate of the grantee being once vested, is not thereby divested, but becomes absolute.” See Black v. Hoyt, 33 O. S., 203, 212.

When the condition subsequent becomes impossible to be performed, it is the condition itself that becomes void, leaving an absolute estate in the grantee. Boone Real Prop., 208.

A court of equity will'never lend its aid to divest an estate for the breach of a condition subsequent, and it has been a question as to how far equity would relieve against subsequent conditions.

IV. The answer also sets up an ‘abandonment of the trust by the trustee, and claims a reversion for the heirs of Ury as a result of such abandonment.

*177Byrne & O’Neill, for plaintiff in error.

DeWitt C. Jones and S. Hambleton, *contra.*

But, as we have already held that the trustee holds an absolute estaté— an estate in fee-simple — it follows that no abandonment or other misconduct or maladministration of the trustee will 'be operative to vest the title in the defendants.

Abandonment would be no greater violation of the trust than misuser, or the appropriation of the trust property to uses not contemplated by the grants; and if this be so, the'language of the court in Barclay v. Howell’s lessee, 6 Pet., 507, is not inappropriate:

> "If this ground had been dedicated for a particular purpose, and the city authorities had appropriated it to an entirely different purpose, it might afford ground for the interference of a court of chancery, to compel a specific execution of the trust, by restraining the corporation, or by causing a removal of the obstructions. But, even in such case, the property dedicated would not revert to the original owner. The use would still remain in the public, limited only by the conditions imposed m the grant.” See Webb v. Moler, 8 O 552

V. The answer alleges that, Oy reason of the circumstances surrounding this land, the trust had become impossible of execution. But the context shows that this is not true.

In Williams v. Pres. Society, 1 O. S., 496, the court said that the uses declared by the alleged dedication were not impossible of execution, although the facts in that case show a complete and permanent diversion of the trust property — a sale to private parties, and the erection of large and substantial business structures upon property dedicated to public and religious uses.

But if impossibility of execution were shown, it would not avail the defendants, who, as we have seen, have no title to the land, and can acquire no title in virtue of any fact alleged in their answer.

VI. The defendants seek, by their cross-petition, the enforcement of the trust, by the removal of- the trustee and the appointment of another, and the carrying out of the objects of the trust under the direction of this court.

In this connection they say that said lands are situate in a populous neighborhood, surrounded by business and dwelling houses; that it is unsuitable for, and that it is impracticable to use the same as a burial ground; and that no fund exists, or has been provided, for the care and maintenance of said lands as a burial ground; that said lands are the subject of the lien of large assessments for street improvements, and that “by reason of the facts aforesaid, ” said lands have been abandoned as a burial ground^ and said trust has been fully executed.

If so, how can the trust be enforced? Why appoint a trustee, or remove the plaintiff? If it has been fully executed, nothing remains for a trustee to do. He is the repositary of the legal title — a mere dry trustee — charged with no duty. Equily will not decree a vain thing.

Demurrer sustained.