Page images

Dissenting Opinion: Brewer, Brown, JJ.

compel the use of their donations and grants for the purposes expressed in the gift or deed? I approve the opinion of the Supreme Court of Iowa, in the case of Warren v. The Mayor of Lyons City, 22 Iowa, 351, 355, 357. In that case the plaintiffs had years before platted certain land as a site for a city, and on the plat filed by them there was a dedication of a piece of ground as a “public square.” After the city had been built up on that site the authorities, for the purposes of gain, and under the pretended authority of an act of the legislature, attempted to subdivide the public square into lots and to lease them to individuals for private uses. A bill was filed by the dedicators to restrain such diversion of the use, and a decreo in their favor was affirmed by the Supreme Court. I quote from the opinion :

“Nothing can be clearer than that if a grant is made for a specific, limited, and defined purpose, the subject of the grant cannot be used for another, and that the grantor retains still such an interest therein as entitles him in a court of equity to insist upon the execution of the trust as originally declared and accepted. Williams v. First Presbyterian Society, 1 Ohio St. 478; Barclay v. Howell's Lessee, 6 Pet. 498; Webb v. Moler, 8 Ohio, 548; Brown v. Manning, 6 Ohio, 298."

And again, after picturing the injustice which in many cases would result by permitting such a diversion, the court adds :

“Such a doctrine would enable the State at pleasure to trifle with the rights of individuals, and we can scarcely conceive of a doctrine which would more effectually check every disposition to give for public or charitable purposes. No, it must be, that if the right vested in the city for a particular purpose the legislature cannot vest it for another; that,

; when the dedicator declared his purpose by the plat, the land cannot be sold or used for another and different one; that while the corporation took the premises as trustee, it took them with the obligations attached as well as the rights conferred; that while the legislature might give the control and management of these squares and parks to the several municipal corporations, it cannot authorize their sale and use for a purpose foreign to the object of the grant.

Statement of the Case.

“Without quoting, we cite the following cases : Trustees of Watertown v. Cowen, 4 Paige, 510; 2 Stra. 1004; Commonwealth v. Alberger, 1 Whart. 469; Pomeroy v. Mills, 3 Vermont, 279; Abbott v. Same, 3 Vermont, 521; Adams v. S. & W. R. R. Co., 11 Barb. 414; Fletcher v. Peck, 6 Cranch, 87; Godfrey v. City of Alton, 12 Illinois, 29; Sedgwick's Constitutional and Statute Law, 343, 344; Haight v. City of Keokuk, 4 Iowa, 199; Grant v. City of Davenport, 18 Iowa, 179 ; Le Clercq v. Trustees of Gallipolis, 7 Ohio, 217; Common Council of Indianapolis v. Cross, 7 Indiana, 9; Rowans, Executor, v. Portland, 8 B. Mon. 232; Augusta v. Perkins, 3 B. Mon. 437."

I do not care to add more, but for these reasons withhold my assent to the opinion.

I am authorized to say that MR. JUSTICE BROWN concurs in this dissent.

The CHIEF JUSTICE, having been of counsel in the court below, took no part in the consideration and decision of this case on appeal




No. 335. Argued April 2, 3, 1894. – Decided May 26, 1891.

Part-performance of an oral contract for the conveyance of an interest in

real estate in the District of Columbia takes it out of the operation of the statute of frauds, and authorizes a court of equity to decree a full and specific performance of it, if proved.

This was a bill in equity for the specific performance of an oral contract for the sale of land.

The bill made substantially the following case: Thomas Riggles, ancestor both of plaintiffs and defendant, died in 1863, leaving a will in which he made the following devises :

[ocr errors]

Statement of the Case.

“I will and devise that my house and premises which I now occupy, situated in the city of Washington in the District of Columbia, being lot numbered seven (7) and part of lot numbered eight (8) in square numbered one hundred and ninety-nine (199), together with all the household and kitchen furniture and other personal property that may be on said premises at the time of my decease shall be and remain in the possession of my wife, Catharine Riggles, during her lifetime, for the benefit of herself and our four children, named Thomas, Catharine, Maria, and Hannah Riggles, respectively; and, after thé death of my said wife, the said house and premises to remain in the hands of my executor, hereinafter named, to be by him used for the benefit of the above-named four children until the youngest one of them surviving shall become twenty-one years of age; provided, that when the said Thomas shall arrive at twenty-one years of age, and when either of the said daughters shall be married, then, and in either such case, the benefit arising from said property shall be exclusively for the use of such of said daughters as may then be unmarried; and after the death of my said wife, and the said youngest child shall attain the age of twenty-one years, then the said house and premises I will and bequeath unto my son Thomas Riggles, with the express provision that such of my aforenamed daughters as may then be unmarried shall be taken care of by my said son Thomas; and, in case the said Thomas Riggles shall depart this life before the said three sisters, then the said house and premises to be sold, and the proceeds be divided equally among the said three sisters or the survivors of them.

“Item: I will and devise that all the lots of ground belonging to me situate in square numbered one hundred and seventy-nine (179) in said city of Washington which may remain unsold and disposed of by my said executor at such time and in such manner as his discretion may dictate as most for the advantage of my wife and children aforenamed, and the amounts that may be realized therefrom, after paying all necessary expenses of my wife and family, be by him

Statement of the Case.

invested at his discretion for the benefit of my said wife and four children or as many of them as shall remain unmarried ; and after the death of my said wife, and our four children shall have attained the age of twenty-one years if any of said property in square one bundred and seventy-nine remains unsold, and also any surplus that may then remain from the proceeds of said square one hundred and seventy-nine, to be divided between my other children, John, James, and William Riggles, and my daughters, Mary Ann Miller and Sarah Turton; and it is further my wish and desire that should the residue remaining from the sale of my lots in square one hundred and seventy-nine be more than the value of said house and premises I now occupy in square one hundred and ninety-nine, then, and in that case, I will and devise that my son Thomas and my said daughters Catharine, Maria, and Hannah Riggles shall receive from the proceeds of square one hundred and seventy-nine, such portion of such proceeds as make all their shares alike or equal to each other and to the shares of my other children.”

Under this will, John B. Turton subdivided square 179, sold portions of the same and died, leaving lots from 1 to 42 and from 61 to 80, inclusive, unsold and subject to a deed of trust executed by him to secure the repayment of certain moneys borrowed. Such moneys, as well as the proceeds of the lots sold, were alleged to have been appropriated to the support of the widow and her four children.

In 1873, the widow and her four children, Thomas, Maria, Catharine, and Hannah, desiring to have the property in square 179 sold for the purpose of a partial division of the estate, and for the purpose of paying certain indebtedness they had incurred, as well as certain taxes and assessments upon the homestead, it was proposed and agreed that, notwithstanding the devises in the will, the entire estate should be equally divided between the widow and the children of the testator; that the lots in square 179 should be at once sold for the payment of the incumbrances, taxes, and assessments upon the whole realty and of the indebtedness of the widow and her four children, and that the net proceeds

Statement of the Case.

should be divided between the widow and all the children, and that the homestead should be retained for the use and occupation of the widow and her four children until her death, and the death or marriage of her daughters, when the said homestead property should be sold and the proceeds divided among all the children of the testator.

In pursuance of this arrangement, a deed was executed, whereby all the parties in interest conveyed to John Riggles and George W. Evans the remaining lots in square 179 in trust to sell and dispose of the same, to pay and discharge all taxes and assessments due upon the lots in both squares, and after paying and discharging all liens, taxes, and assessments upon all the property, to distribute the remainder of the proceeds between the widow and children in equal proportions, share and share alike, and that the said deed was made and executed by all of the parties, including the defendant Hannah Erney, (who executed the said deed as Hannah Riggles,) upon the distinct agreement and condition that whenever under the said will and testament that the said property in square 199 should be sold, the proceeds of such sale should be applied and distributed in the same manner.” The trustees, Riggles and Evans, proceeded under this arrangement, sold the lots in square 179, from time to time, paid the liens and incumbrances upon the property, as well as taxes and assessments; paid and discharged the indebtedness contracted by the widow and her four children, including defendant IIannah Erney, for their maintenance, and also advanced to the widow the further sum of $500, the said payments on account of the said homestead property, and of the maintenance and support of the widow and her four children, amounting to nearly $3000. After such payments, the trustees divided the remainder of the proceeds among all the children of the testator; the shares so paid to each of the devisees being over $3000, and such distribution being made strictly in pursuance of the original agreement.

That the period has arrived when the lots in square 199 should be sold, and the proceeds divided; that the widow is

« PreviousContinue »