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ant's business can be so operated without danger to property or persons outside defendant's grounds, the decree should then be

WILLIAMS, C., concurs.

to say that the interests of the defendants, and
of those engaged in the same pursuits, would
be more important than those of complainant,
and such as he represents in this contest. The
direct contrary is maintained by the com- modified accordingly.
plainant with great force and plausibility. But
we have nothing to do with this question as to
the comparative importance of the conflicting
interests, or the inconvenience to the defendants
by the stoppage of their works, if they infringe
the material, substantial rights of others. It
is the province and imperative duty of the
court to ascertain and enforce the legal rights
of the complainant, no matter what the conse-
quence to defendants may be. This duty no
court could evade if it would."

We will not discuss the question of the loss of the value of the good will of the defendant's business, nor of loss on contracts for future supplies of raw materials. We hope no such disastrous results as defendant anticipates will occur. As we conceive our duty we are powerless to protect the defendant.

[6, 7] VI. It is said that plaintiff is precluded by laches. The defendant, so far as the evidence shows, built its plant without any one in the community knowing anything about what its contemplated business was to be. The first damaging explosion occurred November 12, 1908. On January 15, 1909, relators applied to the Attorney General with a petition prepared to be signed and filed in the case. It was filed January 22, 1909, before the plant resumed, some time in February. There was no laches in fact. Moreover, laches will not be imputed to the state. 16 Cyc. 151; United States v. Kirkpatrick, 9 Wheat. (22 U. S.) 720, 6 L. Ed. 199; Railroad v. State ex rel., 159 Ind. 438, 65 N. E.

401.

It has been held that as against the state the defendant cannot claim a right by prescription to maintain a public nuisance. State ex rel. Detienne v. Vandalia, 119 Mo. App. 406, 94 S. W. 1009; Smith v. Sedalia, 152 Mo. 283, 53 S. W. 907, 48 L. R. A. 711. There has been no suggestion made that defendant's business could be so conducted that the amount of explosive in any one place would be such as not to endanger property or persons outside of defendant's grounds. If such a thing is possible, the defendant should be permitted to show such fact in the circuit court.

PER CURIAM. The foregoing opinion of ROY, C., is adopted as the opinion of the court. All concur.

LACKLAND et al. v. HADLEY, Atty. Gen.,
et al. (No. 15298.)

(Supreme Court of Missouri. July 2, 1914.
Rehearing Denied July 14, 1914.)
DEEDS (§ 168*) - CONDITIONS - REMEDY FOR
BREACH.

S. conveyed to the city of St. Louis a tract of land, containing conditions, among others, that all the tract shall be used as a width of 200 feet, designated on the plat for public park, except the outer rim thereof, of a leasing "on long leases for villa residences, which should be an ornament to the park, and from time to time, lease said strip, in lots of source of revenue," and that the city shall, designated size, for periods of 30 years before renewal, for villa residences, and pay over the rents to S. and his assigns, and providing for be violated; a subsequent deed of S. provided the property reverting if any of the conditions that nonperformance by the city of the conditions as to such strip shall not work a forfeiture as to the rest of the land, but expressly reserved to himself and assigns right, on any willful violation by the city of the condition as to leasing and paying the rents, to enforce performance thereof. Held, that while such strip, the fee to which is vested in the city, was intended to be an ornament to the park, the city has the duty of attempting, in good faith, to rent it, and of renting it, if it can get any substantial rent, for ornamental villa residences, that there is reserved a right at least to enand, when rented, of paying over the rents, and force this duty, where there has been a willful neglect thereof, but there can be no relief, under a petition in equity by the assignees under the will of S. not only not alleging willful neglect, but proceeding on the theory that the property cannot be so rented, and praying for its sale and payment of the proceeds to them, dition subsequent, or a mere covenant or agreewhether the provision as to renting be a conment of the grantee.

[Ed. Note. For other cases, see Deeds, Cent. Dig. §§ 526-533; Dec. Dig. § 168.*]

Walker and Woodson, JJ., dissenting.

In Banc. Appeal from St. Louis Circuit Court; Matt G. Reynolds, Judge.

Suit by Rufus J. Lackland and others, constituting the Board of Trustees of the Missouri Botanical Garden, against Herbert S. Hadley, Attorney General of the State, and others. From a decree for defendants, plaintiffs appeal.

Reversed and dismissed.

The judgment is reversed and the cause remanded, with directions to enter a decree In accordance with the prayer of the petition, with leave to the defendant to thereafter make a showing, if it sees proper so to do, on the question as to whether it can operate its powder mill or maintain powder or dynamite magazines on its grounds in such a way that the amount of explosive in any one place The board of trustees of the Missouri Boat one time will not be dangerous to persons tanical Garden created by the will of Henry or property outside of defendant's grounds, Shaw, which was probated on the 21st day and in such a way that the explosive in one of September, 1889, brought this suit in place will not be in danger of explosion from equity to procure a decree declaring a trust the powder or dynamite in any other place. for their benefit in a strip of land 200 feet If on such showing it appears that defend-wide, which, and other lands surrounded by For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes'

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"Fourth, that the provisions of said act as to construction, appointment and the filling of vacancies in the board of commissioners of said park shall forever remain inviolate.

it, was conveyed by Henry Shaw, in pursu- | authorized to be formed by the second and third
ance of an act of the Legislature of March sections of said act which said board as au-
9, 1867 (Laws 1867, p. 172) for the establish- thorized by said board act shall be composed of
the said Shaw, and all the following persons
ment of Tower Grove Park, to the city of by him now selected and named thereof, to
St. Louis by his deed of October 20, 1868, wit: Adolphus Meier, Wm. F. Ferguson,
and a grant in confirmation, July 9, 1872. Charles P. Chouteau and James S. Thomas.
Said act of the General Assembly provided sale of said bonds shall have been expended in
"Third, that after the money so raised by the
for the government of said park a board of the laying out and embellishing and construct-
commissioners consisting of from five to ing said park there shall be expended each year
seven persons, of which board Mr. Henry the sum of twenty-five thousand dollars in spe-
Shaw was to be a member during his life, proving the said park.
cial funds, the keeping up, maintaining and im-
with the power of appointment of all other
members. Said act gave the board power to
prescribe rules and pass ordinances for the
regulation of the park, and made a viola-
tion of such ordinances a misdemeanor. It
required the city of St. Louis to issue and
sell bonds aggregating $360,000, whose pro-
ceeds should be paid over to said board and
applied by it to the improvement and ad-
ministration of the park. It further requir-
ed the city of St. Louis to provide by gener-
al taxation an annual maintenance fund of
$25,000, to begin three years after the pas-
sage of the act. And it exempted all the
land conveyed by Mr. Shaw in pursuance of
its provisions from every form of taxation,
and provided that such lands should be held
in fee by the said city of St. Louis, and au-
thorized said city to issue bonds for $50,-
000 for the purchase of certain adjoining
lands, if needful.

act.

Henry Shaw executed an indenture with the mayor of the city of St. Louis October 20, 1868, whereby he conveyed to it the lands by the same description given to them in the act of the Legislature, and the city assumed the covenants required of it by said Said indenture conveyed 276.76 acres, and located on this tract an outer rim of 200 feet wide, with openings or passage ways to the inner park (as shown on a plat of the whole tract conveyed, which accompanied the deed and was made a part thereof) for leasing "upon long leases for villa residences, which should be an ornament to the park and source of revenue." The deed then vested the whole tract, to wit: "To have and to hold the same unto the said city of St. Louis in absolute property in fee so long as the said city shall conform and comply with the following conditions annexed to said grant, to wit:

"First, that all of said tract of land hereby annexed except the aforesaid strip, two hundred feet in width shall be and remain and be used and managed as a public park for the health, well-being and enjoyment of the citizens of said city and county of St. Louis, forever. That no portion of said park shall ever be used for any other purposes than those appertaining properly to such public park nor shall any revenue ever be raised from the use of any portion of said park except such as may be consistent with its said purpose and use and which revenue shall go to the maintenance of said park through the board of commissioners. "Second, that the city of St. Louis shall withmonths from the date hereof pay over the proceeds of the bonds of the city of St. Louis authorized to be issued and

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* sold to the board of 'the commissioners of the Tower Grove Park' as mentioned and

"Fifth, that the board of commissioners of
the Tower Grove Park shall from time to time
cause to be leased the said strip of land 200
feet in width so surrounding said park in con-
venient lots not to exceed 200 feet in front,
nor less than one hundred feet to any one person
for periods of 30 years before renewal for the
purpose of erecting villa residences thereon only
and all the gross rents received from said leas-
es without deduction shall be forever paid over
to said Henry Shaw and to his heirs, executors,
administrators and assigns so that he and they
shall forever enjoy said rents and the city shall
execute the proper leases therefor which shall
contain a clause that there shall be only one
residence on each tract so leased. And where-
as by said act of the General Assembly of the
city of St. Louis authorized to purchase land
form part of Tower Grove Park as is hereby
adjoining the property hereby conveyed to
understood and expressly agreed that if said
city shall hereafter purchase for the aforesaid
purpose the parcel of land owned by the heirs
of the late Thomas Jefferson Payne. Bounded
west by the King's highway and north by Mag-
nolia avenue as intended to be extended in a
right line to the King's highway, the said strip
of land of two hundred feet in width hereinbe
fore mentioned as far as the same may ad-
join said land of said Payne shall be used for
said park and a like strip of land to be taken
from said land purchased as aforesaid from
said leasing purposes so that the said strip of
said Payne shall be substituted therefor for
two hundred feet in width to be leased as afore
said shall surround said Tower Grove Park, so
extended in the northwestern corner thereof.
It is hereby expressly provided and this con-
veyance is made upon the express condition that
if said conditions upon which said conveyance
is made or any of them shall be violated in the
lifetime of said Henry Shaw, the said proper-
ty and all improvements thereon shall at once
revert to said Shaw, and absolutely vest in him
in fee as if the conveyance had not been made
and if said conditions or any of them shall be
violated after the death of said Shaw, then the
said estate hereby conveyed and all improve-
ments therein shall go to and be vested in
whomsoever said Shaw may appoint for the
use of the Missouri Botanical Garden or direct-
ly in said Garden whenever the said is incorpo-
rated as authorized by law, to hold directly in
his own name and for its own use. The said
party of the second part hereby covenants to
and with the said party of the first part that
they will perform and fulfill the conditions and
agreements herein before mentioned.
"[Seal]

In testimony Whereof the said
party of the first part has hereunto set his hand
and seal and said party of the second part bas
caused the same to be signed by its mayor and
countersigned by its register and its corporate
seal to be hereto attached the day and year first
aforesaid.
Henry Shaw. [Seal.]
"James S. Thomas, Mayor.
"Attest: I. W. Heath, City Register."

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The supplemental deed is, to wit: impairing or controlling the right of said com"Whereas Henry Shaw of the city of St. Louis missioners of Tower Grove Park to demand and did convey by deed dated 20th October, 1868 have from said city from and after the period and recorded in the recorder's office of St. Louis stipulated in said deed the yearly sum of county in Book 370, page 421, to the city of twenty-five thousand dollars as provided thereSt. Louis a certain tract of land containing two in or the right of said Shaw, his heirs or assigns hundred and seventy six and 76-100 acres of or said commissioners to enforce the payment of the same by appropriate remedies if they sewhich tract two hundred and two 02-100 acres were donated for a public park and the gates lect. Said Shaw hereby admits the performance on the part of the said city of St. Louis of the and approaches thereto and seventy-four 74second condition annexed to said grant being the 100 acres were by said city of St. Louis were to be leased by said city through the board of payment by the city of St. Louis to said commiscommissioners of said Tower Grove Park and sioners of the proceeds of bonds of the city of St. Louis authorized to be issued by law for the revenues derived therefrom to be paid over to said Shaw or assigns as will more fully and the laying out, constructing and embellishing This agreement is not to be conat large appear by reference to the provisions of said Park. said deed, and whereas it was provided by the sidered and taken as in any way modifying, conterms of said conveyance that such conveyance trolling or effecting the provisions and condiwas made upon the express condition that the tions in said deed contained except as to matsaid city of St. Louis should hold said property ters and to the extent and degree herein mentioned but the same remain in full force entireso long as said city should comply with the conditions annexed to the grant thereby made and ly unaffected by anything herein contained. then upon the violations of said conditions or The said Henry Shaw for and in consideration any of them the property should at once revert of one dollar to him paid by the city of St. to said Shaw or to whomsoever he might ap- and convey to the city of St. Louis for the purLouis does hereby remise, release, quitclaim point, and whereas the condition in respect to poses of Tower Grove Park, and as a part the leasing of said seventy-four 74-100 acres thereof a certain lot of ground containing two (being a strip of two hundred feet in width surrounding the park) and paying to said Shaw the hundred feet from north to south by one hundred feet from east to west, and being the eastrevenue is liable to different interpretations as ern one hundred feet of said strip of two hunto unperformance thereof and the dependence of dred feet surrounding the park. Commencing the grant so far as the two hundred and two at the Tower Grove Gate as represented on the 02-100 acres granted by said Tower Grove plat annexed to said deed and running east one Park and its approaches are concerned is deem-hundred feet, being the same lot of ground one ed onerous by said city. Now therefore the which the superintendent's house and offices of said Henry Shaw does hereby covenant and said park are placed to have and to hold the agree to and with the said city of St. Louis, same unto the said city in absolute property in that the nonperformance by the city of St. Lou- fee upon the same terms and conditions as they is of the conditions, covenants and agreements now hold said Tower Grove Park and so long on the part of the city in relation to said sevenas the said city shall comply therewith. ty-four 74-100 acres shall not work any for witness whereof the said Henry Shaw has herefeiture of the grant so made to the city of St. unto set his hand and seal this 9th day of July, Louis of the two hundred and two 02-100 1872. Henry Shaw. [Seal.]" acres set apart and designated as Tower Grove Park in said deed and the plat annexed thereto the said Shaw expressly reserving to himself and assigns the full and perfect right at all times upon any willful violation on the parts of the city or said commissioners to lease the said seventy-four 74-100 acres from time to time as provided in said conveyance and pay the rents to him or to whomsoever he may appoint to enforce the performance of the agreement for and concerning the said leasing or payment of net rents and revenues therefrom to said Shaw or assigns by writ of mandamus or other appropriate remedy against the city of St. Louis or said commissioners the said Shaw hereby in no manner modifying changing or impairing the conditions of said grant in this particular so far as the 74 74-100 acres are concerned. And whereas also it is desired by said city that the condition of said grant that the said city and county of St. Louis shall each year appropriate the sum of twenty-five thousand dollar in gold for the keeping up, maintaining and improving said Park, shall be made more definite and specific, being the third condition specified in said deed therefore the said Shaw does hereby covenant and agree to and with the said city of St. Louis that no forfeiture of the said Tower Grove Park and its approaches of two hundred and two 02-100 acres no right of re-entry upon said park shall accrue to or be enforceable by said Shaw, his heirs or assigns unless upon the willful neglect or default of said city to make such yearly appropriation and not unless the said Shaw, his heirs or assigns, shall have notified in writing said city that he or they claim said forfeiture and right of re-entry by virtue of such neglect or default on the part of said city and one year after said notification shall have expired without any such appropriation having been made. Nothing hereby contained shall be considered in any way as qualifying

In their petition plaintiffs claim to be the residuary devisees of Henry Shaw, and as such entitled to whatever interests were reserved by him in the execution of the foregoing deeds. They aver that the method which he prescribed for obtaining a source of revenue by requiring the city to lease for villa residences on long terms the outer 200 feet of the land conveyed to it has "proven impossible of realization." Wherefore defendants did not willfully or intentionally neglect to make such leases. The prayer of plaintiff's petition was for a sale in lots of convenient size of the 200 feet forming the external boundaries of the land conveyed by Mr. Shaw to the city of St. Louis, and that "the net proceeds of such sales should be paid to plaintiffs for the use of the Missouri Botanical Gardens." The prayer also asks for power in the board of commissioners to "sell or lease the lands to the city of St. Louis * * * and for further relief." The answer of the defendants, who were the then Attorney General and the board of commissioners of Tower Grove Park, admitted so much of the deeds and records as was set forth in plaintiff's petition, denied that plaintiffs had any interest whatever in the lands sought to be subjected, and prayed for crossrelief, adjudging the full title of the land to be in the city of St. Louis; admitted the statement or allegation in plaintiff's petition that it was impossible to rent the strip of

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land in dispute for villa residences or col- Mr. Shaw, the entire property has been exlect any rent from such leases.

The evidence shows that rentals to an inconsiderable amount have been collected by the board of commissioners of the park from temporary tenants of such strip, who used it for gardening purposes; that Henry Shaw from the time of the establishment of said park, and for 21 years thereafter, was continuously a member of the board of park commissioners provided for by the act and created in accordance with the terms of his deed to the city of St. Louis, and that he selected all of the other members of said board, and that the entire management of the park was intrusted to it; that the board has continued the same, except that since his death he has been succeeded by the director of a quasi public charity, the Missouri Botanical Garden, which was first established by the provisions of his will. This latter charity was before the court, and its specific nature and the powers and the duties of the trustees to whom Mr. Shaw had conveyed in fee the bulk of his estate were fully defined in Lackland v. Walker, 151 Mo. 210, 52 S. W. 414. For the promotion and maintenance of this charitable trust created by his will, Mr. Shaw conveyed to the 15 trustees named therein the bulk of his real estate now shown to be of the value of between $5,000,000 and $6,000,000. In the management of their trust said trustees, according to a report of their receipts and disbursements for the year 1907, received $178,091.36, and expended $171,074.26, leaving a balance on hand of $7,017.10. The residuary clause of Mr. Shaw's will, under which plaintiffs claim is, to wit:

"Also all the residue of my estate real and personal or mixed, which I may leave, or be possessed of at the time of my death, which shall not have been in this my will devised, bequeathed and disposed of, I devise and bequeath to said trustees. To have and to hold to them and the survivors of them, and their successors in said trust forever upon the said uses

and trusts above mentioned."

In the first paragraph of the will of Henry Shaw, where there was a general devise of his real estate to the trustees of the Botanical Garden, a clause is contained which excepts from said general devise the lands in dispute in this case, in the following terms:

"Excepting such interests and estates as I have heretofore conveyed to the city of St. Louis, by two deeds, one bearing date the twentieth day of October 1868, (2) and the other bearing date the ninth of July 1872, and do therein devise to the said city of St. Louis for Tower Grove Park."

The evidence shows that in consideration of the conveyance to it of the land for park purposes, the said city of St. Louis sold its bonds, and devoted their proceeds, amounting to $360,000, to the improvement of the grounds, and three years thereafter, and continuously up to the present time, has applied $25,000 of money raised by taxation to the annual maintenance of said park, and that, as provided in the act of the Legislature authorizing the conveyance of this property by

empted from every form of taxation.

The evidence further shows, as admitted in the pleadings, that the city has not leased any of the strip for villa purposes, but has been able to receive a slight rental therefor from persons using it temporarily which it paid over to the plaintiffs as the assignees of Mr. Shaw under the residuary clause of his will. The evidence further shows that if the strip of land in question were now sold, it would have a probable market value of $816,250. Upon the consideration of the pleadings and the facts, the trial court rendered a decree adjudging complete title in the defendants as prayed for in their cross-bill, and dismissed appellants' petition, from which judgment this appeal was taken.

Judson, Green & Henry, of St. Louis, for appellants. William E. Baird and Truman P. Young, both of St. Louis, for respondents.

BOND, J. (after stating the facts as above). I. It is perfectly clear that the only question on this appeal is the interest of Henry Shaw, and the proper enforcement thereof under the terms of his two deeds, whereby the property including the outer rim or strip of 200 feet was vested in fee in the city for the purposes and upon the conditions expressed in the deeds. It cannot be that Mr. Shaw by his will could devise any particle of the estate which he did not possess after his grant of the lands in question, nor could he transmit to his residuary devisees, the plaintiffs, any other remedy for the enforcement of the interests and rights retained by him than he had at the time of his death. With this in mind, the only thing left in this case is to determine from the language of the two instruments what interest or estate passed to the grantees, or was reserved to the grantor. The meaning of these words is not aided or helped by the conclusion reached by this court when it conceded the power of the trustees to whom a great estate had been conveyed in furtherance of a different charity described in the last will of Henry Shaw to vary the details of its administration. For that case (151 Mo. 210, 52 S. W. 414) presented only the question of the power of the trustees, who held a fee-simple title for the sustention of a charity, to vary their administration from a method of substantial sale by a leasing with a covenant for perpetual renewal to a sale outright to meet the necessities of a definitely created and established charity. This the court permitted them to do in order to prevent the frustration of the paramount purpose of the donor. Mr. Shaw was a lover of flowers, and had devoted much of his life to their cultivation, and had laid out on his residence grounds a botanical garden and constructed a library and museum thereon. This and the remainder of his vast estate was devised by him to the trustees named in his will for the perpetual maintenance of a botanical garden, accessible to

the public under the restrictions contained to the instruments themselves to ascertain in his will. In its ruling upon the case then their legal import. presented (151 Mo. 210) the court held that II. What Mr. Shaw and the city of St. Louthe title-holding trustees, who were directed is designed to do, under the authority of the in the will to lease the real estate conveyed state, was the establishment of a park for to them for a term of 60 years, with a cove- the common benefit of the public, a proper nant for perpetual renewal, were entitled, civic motive on the part of the city, and a upon the impossibility of effecting such leases, philanthropic benefaction by Mr. Shaw. to make an alienation of the property for the This is demonstrated by the fact that the support of the charity. That ruling merely precaution (though unnecessary) was taken to gave the power to vary the method of admin- apply to the Legislature for an act establishistration of the trust, but not to alter the ing and naming the park, describing the purposes or objects of the charity, nor to lands to be conveyed, providing a board of change its character as created by its found- control and management, authorizing the city er. But in the instant case the plaintiffs are to expend immediately and subsequently the not asking to be allowed to sell any real essums mentioned in the act, exempting the entate conveyed to them on account of the im- tire property from any burdens of taxation, possibility of the performance of any duty and providing, further, that "it shall be held with which they have been charged in re-in fee by the city." In pursuance of this act spect to it, for this real estate was conveyed Mr. Shaw executed his deed of indenture to not to plaintiffs, but to another trustee, who, the city, conveying to it the lands by the and not plaintiffs, was charged in the deed, same description contained in the enabling devoting it to a wholly different charity, with act, and imposed, among others, a condition the duty to lease it for a particular purpose, that 200 feet in width on the outer portion ornamental to the park, and pay the rent of said lands should be leased by the city in realized in that mode only to a grantor of specified lots, on terms of 30 years before whom the plaintiffs are merely the assignees. renewal, for the purpose of villa residences, The plaintiffs in this case occupied no such and the city should "pay over the rents for status as they did in that case. There they such leasing forever to Henry Shaw and his desired to convey the fee vested in them, to heirs, executors, administrators and assigns." subserve a charity which was richly endowed, The indenture then provides that if any of but hampered in the use of its property. said conditions are broken in the lifetime of Here, the defendant city is the trustee of a Shaw, "the said property and all its improvepublic charity wholly disconnected with the ments thereon shall at once revert to said other of which it is the conjoint founder Shaw and absolutely vest in him in fee as with the donor of the land (for it made it a if the conveyance had not been made"; but park by paying $360,000 to improve it and if violated after his death, then a similar reappropriates $25,000 annually for its main- verter should take place to an appointee of tenance), and since it has turned out that Shaw for the use of the Botanical Garden, defendants cannot rent for a special purpose or to it if then incorporated. It is not neceswhich would enable plaintiffs, as assignees, sary to consider any of the other conditions to secure the rent thus collected, they are upon which the fee was vested in the city, seeking to cause defendants to sell the prop- except the ones above quoted relating to the erty and give them the total proceeds, esti- leasing of the strip by the board of commismated at $816,000 if the fee is sold. In oth- sioners, for all the others have been fully er words, in the case cited plaintiffs sought to performed. The one in question, moreover, be granted, in the performance of their du- has been expressly and specially restricted ties as trustees, the right to vary in the mat- by the deed poll made by Mr. Shaw three ter of administration, a trust of property to years after the execution of his indenture which they had title. Here they are seeking with the city to a "willful violation" by the to obtain property to which another trustee city or said commissioners of the requireholds the title, for another charity, although ment to lease said strip for villa residences they admit such other trustee, holding the and pay the rents to him or whomsoever he title for a definite charitable and public trust, may appoint. The grantor in said deed also has without fault been unable to find tenants expressly reserved the right to enforce that for a special leasing required by its charita- condition as to leasing by mandamus or othble appropriation and pay the rent to plain-er appropriate remedy. This partial waiver tiffs as assignees of the grantor, Henry Shaw. and modification of the conditions in quesHere, plaintiffs seek to obtain a title or its proceeds, which was not given to them. In the case cited they sought to dispose of an asset which belonged to them, and the full title to which was vested in them. It is evident that the decision in Lackland v. Walker, supra, bears no analogy to the case in hand, and sheds no light on the meaning of the words contained in the two instruments under consideration. We, therefore, will look

tion by Mr. Shaw is an absolute estoppel by
deed as against him or his assigns, the plain-
tiffs. Such was the purpose and effect of his
confirmatory deed. It was executed to relax
the stringency of the condition of forfeiture
which had been inserted in the prior deed of
indenture between the city and Mr. Shaw.
was clearly out of the power of Mr. Shaw by
his subsequent confirmatory deed, nor did he
attempt so to do, to alter the title which the

It

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