source: Caselaw Access Project

author: BOND, J. WALKER, J.

license: Public Domain

text:
    ANDREW JAICKS, Appellant, v. HENRY S. OPPENHEIMER et al.
    In Banc,
    April 2, 1915.
    1. SPECIAL TAXES: Priority of Liens. Liens on land for taxes take priority in the reverse order of other liens;' that is, the last is first, and the first last. And in the absence of a statute or charter provision to the contrary, there is no difference in this respect between liens for general taxes, and liens for special taxes. And the right to priority of the later special tax bill over a prior one is implied, or at least not denied, by sections 22 and 24 of Article 8 of the Charter of Kansas City, declaring that any person claiming any estate or interest in the land may. be joined as defendants in the suit on the tax bill, “and the right, title, interest or estate of the parties made defendants in any such suit shall be bound thereby.” [Disapproving Parker-Washington Company v. Corcoran, 150 Mo. App. 188.]

      Held, by WALKER, J., dissenting, that the last special tax bill cannot be given priority of liens over others previously issued, unless there is a statute or city charter authorizing such priority; and such priority not only is not given by the charter of Kansas City, but that charter specifically says that every special tax bill “shall be a lien on the land described therein upon the date of the certification thereof to the city treasurer” by the Board of Public Works, which clearly means that the tax bill which is first in date of. certification is first as a lien.
    2. -: Referable to Taxing Power. The power to assess private property for a public improvement is referable to and derivable from the taxing power of the State lodged by the Constitution in the General Assembly, and such special taxes are, in their ■essence, just as much taxes as are general taxes assessed •■against the same land for the support of the government; and the assessment and collection of either special or general taxes are an exercise of the taxing power.

      Held, by WALKER, J., dissenting, that priority of liens of general taxes did not exist at common law, but had' its origin in a statute, first enacted in this State in 1820; that the doctrine of sovereignty of the State to make general taxes a lien on land cannot be applied to special taxes except by statute, or by a city charter of equal dignity with a statute; that there is no such statute, and the charter of Kansas City (section 24, article 8) specifically declares, that a special tax bill shall be a lien on the land described therein “upon the date of the certification thereof to the city treasurer” by the Board of Public Works, which, can have no other meaning than that each special tax bill takes priority in the order in time of its certification; and that, therefore, the last bill certified cannot take-priority as a lien over others previously certified.
    3. - — : Basis for Priority of Lien. Special assessments are-charges on the physical property, and proceedings to enforce-them are in rem, or against the thing itself. The basis of the assessment is that it is a just equivalent of the increased1 value or permanent increment due to the public improvement, and the tax bill represents that added value, and the city or contractor is entitled to be paid that added amount without waiting for the holders of prior liens to be paid.
    Appeal from Jackson Circuit Court. — No». Thomas J. Seehorn, Judge.
    Reversed and remanded.

      T. P, Buchner for appellant.
    (1) Tax liens take priority in the reverse order to ordinary liens; that is, in tax liens “the last shall be first and the first last.” This rule as to general taxes is so well settled that it is conceded and requires, no citation of authority. (2) In the matter of priority there is no distinction between the lien of general taxes- and that of special taxes for -general improvements. The liens of special tax hills also take priority in the-reverse order of their date. Paving Co. v. Realty Co.,. 168 Mo. App. 468; Construction Co. v. Rink Co., 242: Mo. 241; Burke v. Lukens, 12 Ind. App. 648 ; Anderson v. Rider, 46 Cal. 134; Sayler v. Davis, 22 Wis. 217; Wass v. Smith., 34 Minn. 304; Fletcher v. Oshkosh, 18 Wis. 244;-Morey v. Duluth, 75 Minn. 221; Cooley on Taxes (3 Ed.), 875. (3) The last special tax hill issued takes precedence over all prior incumbrances and is the superior lien. Construction Co. v. Ice Rink Co., 242 Mo. 241. (4) This is true although there is no express statute, ordinance or charter giving or making the last bill a first lien. Construction Co. v. Ice Rink Co., 242 Mo. 241. (5) That special taxes and general taxes stand alike as to priority and are a superior lien to all other incumbrances, while once a mooted question, is now the settled law of this State, and has forever been set at rest. Paving Co. v. Realty Co., 168 Mo. App. 476. (6) The charter of Kansas City is express that the tax bill shall be a lien against all prior lien holders or persons “interested” in the real estate charged by the tax bill. City Charter, secs. 22, 24, art. 8. (7) The tax bill in this case, being the last one issued in point of time added value to the existing liens, enhanced their security, and on account of public policy as well as the settled law of this State, it should be held to be a prior lien over all existing incumbrances including the lien of prior tax bills. (8) Until the case of Parker-Washington Co. v. Construction Co., 150 Mo. App. 188, was decided, no one in this State doubted that the last tax bill was the superior lien. The reasoning in that case has been expressly repudiated in the more recent case of the St. Louis Court of Appeals, 168 Mo. App. 468, and the more recent case of the Supreme Court, 242 Mo. 241. (9) The language of the charter in St. Louis in which all the above cases were founded, did not contain such an express provision as is contained in the Kansas City charter. Nortoni, J., in the adverse case relied upon, expressly held that if there was such an express charter provision the last tax would be a first lien and cited the case of Keating v. Craig, 73 Mo. 507. The charter provision of Kansas City now is as express as it was when the case of Keating v. Craig was decided.

      Scarritt, Scarritt, Jones & Miller for respondent, Barber Asphalt Paving Co.
    (1) The lien which is prior in time gives a prior claim and is entitled to satisfaction ont of the subject-matter before subsequent liens binding the same property. 25 Cyc. 678; 25 Am. & Eng. Ency. Law, 1236-7; Ranlrin v. Scott, 12 Wheat. (U. S.) 177; Parker-Wash-, ington Co. v. Corcoran, 150 Mo. App. 188. (2) The argument of appellant that his tax bill being the last one issued in point of time, therefore added value to the property and enhanced the security of. lien holders and by reason of this fact his tax bill should be declared superior to those of the respondents is answered by Brick Mfg. Co. v. Smith, 108 Iowa, 307.

      Clarence 8. Palmer for respondents, A. L. and J. O. West.

      Paxton & Pose, amici curiae.

    The analogy between a tax and tax bill is only partial. They both originate in the taxing power, but there the similarity ends. A tax is always a public lien and is always due to the government, while a tax bill, after its issue, is mere private property. All taxes, too, are owed to the same party, viz.: the government, so that the question of priority is not of any great moment; whereas the different tax bills on the same property are generally held by different private individuals, and so have become mere private liens with which the government has nothing further to do. This being true, we think the question of priority should be decided according to the law of private liens, not according to the law of taxes, with which the tax hill itself has ceased to have anything in common. The turtle and the bird both come out of an egg; but in considering the treatment to be accorded these different animals, the one swimming in the water, and the other inhabiting the air, it is more appropriate to consider the animals as they are than to go back to the similarity of origin. “The accepted doctrine is that special assessments for local improvements, while, in a broad sense, referable to the taxing power, are not taxes for public purposes or taxes at all within the purview and the sense of the constitutional provision invoked or within the sense and purview of other sections of the article on revenue and taxation. ’ ’ Ranney v. Cape Girardeau, 255 Mo. 514.
   OPINION.

BOND, J.

Appellant here (plaintiff below) brought this action on a tax bill issued to him, as part payment, for doing paving work on Cleveland avenue in Kansas City, under authority of a valid ordinance. Amount of tax bill $725.28, and issued .against lot 28, Indianapolis Place, in said city. The petition alleged that all the defendants named claimed some interest in the above-mentioned property, ¿nd prayed for the establishment of a prior lien on said property for the amount of said tax bill'against all of the defendants.

The defendants answered, setting up that they held similar tax bills against said property issued to them for public work prior to that issued to, the plaintiff, on some of which suits were then pending. The admissions of the parties established the facts stated in the pleadings. The court, over the objection of plaintiff, rendered a judgment sustaining his lien for the amount of his tax bill and interest against the property described in his petition, except against those defendants who had anterior tax bills, or had acquired interests under suits on prior tax bills, and adjudged that such interests and titles in said defendants were not subject to tbe lien of plaintiff’s tax bill.

After the overruling of a motion for a new trial plaintiff appealed to tbe Kansas City Court of Appeals. Upon tbe bearing of said appeal that court, after stating tbe above facts, rendered an unanimous opinion reversing tbe judgment of tbe trial court and remanding tbe cause with directions to give priority to plaintiff’s lien, but on account of tbe conflict of that view with tbe decision of tbe St. Louis Court of Appeals, 150 Mo. App. 188, certified tbe cause to this court for final determination as provided in tbe Constitution.

As a prelude to what we shall say in this case, and because we concur in tbe conclusion of tbe Kansas City Court of Appeals as to tbe relative priority of tbe liens of tax bills for special assessments for public work in cities and towns, we herein copy tbe discussion of tbe Kansas City Court of Appeals, speaking through Judge Trimble:

“With regard to all ordinary bens arising out of private contract and not imposed solely by governmental power, priority in time creates priority in force and effect, tbe first in order of time being, prima facie, superior to those of a later date. But tbe priority of tbe liens of general taxes is in tbe reverse of this order, tbe last is first and tbe first last. [2 Cooley on Taxation (3 Ed.), 875; Anderson v. Rider, 46 Cal. 134; Sayles v. Davis, 22 Wis. 225; Wass v. Smith, 34 Minn. 304.] This rule is well settled and is not ’ disputed. Tbe question is, however, whether there is any distinction to be made in this regard between tbe liens of general taxes and those of special taxes

“Tbe precise question was before tbe St. Louis Court of Appeals in Parker-Washington Company v. Corcoran, 150 Mo. App. 188, in which it was held that the liens of special taxes for local improvements took priority in the same order as other ordinary liens, and not in the reverse order of their time as with those of general taxes. The decision is placed upon the ground that there is an essential distinction between general taxes and special taxes, and that in the absence of a statutory or (which is the same thing) a charter provision to the contrary, the lien of a special tax bill takes priority over another special tax bill in the same order as do other ordinary liens, that is, the first in point of time is prior to the later tax bills. Of course, if a statutory or charter provision exists which expressly or by necessary implication creates the reverse order of priority, then, by virtue of such provision, the distinction between the two kinds of tax liens is taken away, so far as the rule of priority ■as between different liens of the same kind or class is ■concerned. And the St. Louis Court of Appeals, finding no provision in the St. Louis charter which clearly gave such reverse order of priority, held that there was such a distinction between general and special taxes that the latter could not be given the same rule of priority which prevails with the former. It is true, as stated in that case, the rule is well settled with respect to both legal and equitable liens that, in the absence of statutory regulations to the contrary, the lien which is prior in time gives a prior claim and is entitled to satisfaction out of the subject-matter before other subsequent liens are paid. But an examination of the authorities cited by text-writers and others in support of the rule thus announced in such general terms, will disclose that the cases are dealing with ■ordinary liens arising out of private contract and not those created and imposed solely by governmental authority in the exercise of the taxing power. Consequently, a statement of the general rule of- priority with respect to ordinary liens can aid but little in determining the rule of priority of special tax liens with reference to each other, because, at last, it all comes-down to the question whether there is any such inherent difference and distinction between the liens of special taxes and those of general taxes as will require' the rule of priority in the one to he different, from that'of the other.

“When the two kinds of taxes are considered for the purpose of determining this question it will he found that there is not such an inherent difference between them as to place the liens of special taxes merely in the category of ordinary liens. It is true, general taxes are levied for the support of the government and in that sense general taxes are the more important of the two and ought to take precedence over special taxes, so that the lien of a general tax ought to he prior to the lien-of a special tax, even though the latter be prior-in point of time. But that is not the question here. The question now is as to the rule of priority as between the different liens of different special taxes'. And the precise inquiry- now at hand is, what essential or inherent difference is there in the nature of special taxes which deprive their lien of a rule accorded to the lien of general taxes ? Both are created by acts of the sovereign power exercised for the public-good. ' In both the taxing power operates in rem, that is, on the property itself without regard to different or conflicting interests of ownership; in fact, in total dis: regard of any liens or interests attached thereto. The proceedings to collect both are proceedings' in rem. And ‘the general and universal rule is that in proceedings in rem to enforce the payment of taxes the last tax levied and sought to be enforced is superior and paramount to the lien of all other taxes, claims or titles.’ [2 Cooley on Taxation (3 Ed.), 875.] The Supreme Court of our State in the case of Morey Engineering & Const. Co. v. Ice Sink Co., 242 Mo. 241, l. c. 256-7, discusses the question whether the same principles applicable to general taxes are not equally applicable to special taxes and reaches the conclusion that they are. The court says both are created by the sovereign power of the State for the public good; that while in a number of opinions special taxes are said not to be taxes in a certain sense, yet that by this is meant only that they do not come within the taxes referred to by certain constitutional provisions establishing limitations as to the amount to be levied for the purpose of general- revenue; that while a special tax is not a general tax for the support of the government, yet it is a tax imposed by the same sovereign power for the same general purpose — the general good. And on page 258 of the same case the Supreme Court say that on principle the same ruling should apply to both; the exigencies of government require that special taxes be levied, and the necessity for their prompt and certain collection is surely great enough to demand that classification which will insure those ends.

“It would seem that any distinction drawn between the two kinds of taxes which would relegate the liens of special taxes to the same class as ordinary liens arising out of private contract would be, to that extent, a shortening of the sovereign power to impose such taxes. If the lien for special taxes which is first in point of time can supersede all similar liens coming after it, then when once the sovereign power has levied such a tax, it must perforce wait until that tax has been removed according to the sweet will and pleasure of the owner of the land and the holder of the tax bill, before another can be levied. In this way the wheels of progress could be blocked, or at least effectually impeded. In this very case the tax bill sued on is for paving Cleveland avenue, and was authorized November 10, 1910, and the tax bill was issued May 1, 1911; while one and possibly two of the other tax bills claiming to he superior is for grading the same avenue authorized as far back as October, 1907, and two others are for paving a near-by street and sewer construction begun as far back as December, 1903. The argument that the taxing power ought not to levy a special tax and give a lien therefor and then be allowed to destroy that lien by' subsequently levying another tax and giving a lien paramount to the other, is more plausible than forceful. And the same argument would apply equally well to the lien of general taxes. It is said with regard to the latter that when one buys property at a general tax sale, the moment he acquires the property it becomes his duty to pay all subsequent taxes levied thereon, and .therefore it is no wrong nor hardship to make the lien of the last tax superior to the tax under which he bought. Quite true, and so does it becomes the duty of one who buys at a special tax sale to pay all subsequent special taxes levied thereon for the public good. And it would seem to be less of a hardship in such case than in the case of general taxes, since the special taxes benefit the property directly, while the general taxes only remotely. Suppose the defendants in this case had energetically enforced their liens, instead of letting them lie as théy seem to have done, and had purchased the property in question, could any one say that the city could not at once thereafter have levied another special tax on the property for another improvement? In such case the new owner would have to pay off the lien thereof or lose his newly acquired property. And if the taxing power could lawfully do this what wrong would it be perpetrating upon such purchaser if it levied the tax before he chose to make his purchase? In fact, any argument based upon any notions of so-called wrong or injustice in the case of a special tax applies equally well, and some times with more force, to the case of a general tax. The question, however, goes deeper than any such considerations, and involves the question whether there is, in reality, such a distinction between the two classes of taxes as to justify the application of a different rule, and whether the sovereign power can be impeded or hampered by any such distinction.

“In arriving at a determination of the question involved, not a great deal of assistance is to be derived from the decisions of other States, since there are not many of them upon this precise question. And some of these are based upon the peculiar wording of a particular statute, and, in others, different States have reached contrary conclusions in cases where their respective statutes were practically the same.

“It is true that in the Morey case above mentioned, 242 Mo. 241, the question was between the lien of a special tax bill and that of a prior deed of trust, but it would seem to be clear from the majority opinion in that case that there is no such distinction between the nature of special taxes and general taxes as to deprive the former of the rule of priority, as between themselves, which is accorded to the latter. In other words, special taxes do not have to have an express statutory provision giving such rule of priority, but have it by reason of their partaking of the same essential nature and importance of general taxes — both being acts of the sovereign taxing power exercised for the public good. If, without such statutory provision, a special tax lien is superior to that of a prior private lien, such as a deed of trust, then such tax lien has it by virtue of the fact that it partakes of the same nature and characteristics of a tax as does a general tax, and is therefore entitled to the same rule of priority, at least as between itself and all other special tax liens and private liens.

“If statutory authority be required, however, it would seem to be implied (or at least not denied therein) from the following found in the City Charter, article 8, section 22:

“ ‘Any person owning.or interested in any tract of land against which, a special tax bill may be issued under the provisions of this charter may pay the same to the city treasurer, whose duty it shall he to receive the amount thereof without charge or commission,’ etc. And also section 24 of the same article, to-wit:

“ ‘No tax bill need give the name of any party owning or interested in the land charged thereby . . . All or any of the owners of the land charged, or of any interest or estate therein, may he made defendants in any suit upon a tax bill and the right, title, interest or estate of the parties made defendants in any such suit shall be bound thereby.’

“As said in the Morey case, this provision is meaningless unless it enables those holding a lien upon lands in the city to protect themselves by paying the subsequent special tax, without charge or commission, to which their interests are subordinate. If their interests are not subject to the special tax why should they be referred to in connection with its payment? The words ‘any person interested in any tract’ in section 22 are broader than and are not synonymous with the words ‘having an estate in any traci,’ and the words in section 24 ‘owners of the land or of any interest or estate therein’ include others than merely those holding a technical estate in said lands. But the above provisions of the city charter are not sufficiently express to give special tax liens the reverse order of priority accorded general taxes, unless both so far partake of the same essential nature as to entitle special tax liens to such rule of priority at least as between themselves and as between them and all other liens not amounting to the dignity of general tax liens. The inference to be drawn from the Morey case is that they do partake of this same nature, and do. not depend upon the positive enactment of a statute to give them the same rule of priority. If this be the correct deduction to be drawn from the Morey ease, it follows that the judgment should be reversed and the cause remanded with directions to give priority to plaintiff’s hen. But inasmuch as this view is in conflict with the decision of the St. Louis Court of Appeals in the Parker-Washington case, 150 Mo. App. 188, the case is ordered certified to the Supreme Court for final determination. In this way the question here involved can be put at rest and all doubt thereon can be resolved and settled. All concur.”

In further illustration of the correctness of the result reached in the foregoing opinion by the Kansas City Court of Appeals, we desire to say:

The power to assess private property for public improvements, beyond the uniform rate prescribed by the Constitution, is derivable only from the fast that such property is enhanced in value to the amount of the tax beyond that of other citizens, by the public betterment. Any assessment not thus bottomed is void. Upon this basis only can the Legislature, through its auxiliaries in government, exert its taxing power for the construction and repair of streets and other public purposes. Hence, provision is made in the charters of cities and towns that the private owners shall pay only that portion of the tax represented by the moneyed increase in the value of their respective property, and that the remainder of the tax must be paid out of the general revenues of the municipalities. It is on this principle alone that special assessment can be laid upon private property for public improvements and other works necessary to urban life.

None the less, however, the impositions thus made are strictly referable to the taxing power of the State lodged in the Legislature subject to the limitations of the Constitution, and such exactions are, in their essence, just as much taxes as are those which are collected for the support of the government itself. The fact that a contractor for public work is permitted to enforce a portion of his compensation for the doing of such work from abutting property owners by a direct action upon a tax bill fixing the amount .to be collected from them, is to avoid circuity of action and to enable the municipality to collect in that way the incidental benefit which the public work prosecuted by it has afforded to particular citizens over all others. The result would be exactly the same if the city in the first instance paid out to the contractor the whole of his compensation, and afterwards collected from particular private owners the amount of the enhancement in value of their respective property. It is apparent therefore, as has been uniformly held in this State» that the whole process of making public improvements in cities and towns which involves the taxing, of particular property, is in its essence the exercise by the State through one of its delegated agencies of the taxing power lodged in the Legislature. ■ '

Special assessments are in the strictest sense of the terms charges on a physical property and proceedings to enforce them are in rem or against the thing itself. The authority under which they are laid fixes a lien upon the property as an equivalent of a permanent increment of its value by the public improvement or work for which the assessment was part payment, and assesses a tax bill to the contractor evidencing his right to recover that portion of his compensation for the doing of a needed public work.

Upon that theory the same basis exists for such a lien as that created by courts of equity in railroad receiverships for the betterment work done on the-earnings of the property in the hands of the court and which, to the extent of the payment for such additions, displaces pro tcmto all prior mortgages and liens, including those for which the suit was instituted, as well as the claims of general creditors. [Van Frank v. Railroad, 89 Mo. App. l. c. 499, and cases cited.] The foundation of this principle is justice, if not necessity. For it would be inequitable to permit prior encumbrancers in the enforcement of their liens to realize the added value which has been put in the property charged by the labor of others necessary to its protection or the uses to which it must be applied, pending proceedings for the enforcement of the rights of encumbrancers, without subjecting such encumbrances to the cost and outlays thus subsequently incurred. So, in this case, the last special tax was for an equivalent addition to the value of the property on which prior similar taxes were encumbrances. The charter of Kansas City provided that each should be a lien on the tiling benefited, necessarily thereby providing that the last lienor should have preference over the former, who, as to him, stood merely in the relation of persons interested in the property improved, and hence within the very terms of the charter providing that all such might be made parties to a suit like the present, or that all such might make payments of charges like the present tax bill. [Kansas City Charter, art. 8, sec. 22.]

From these principles the corollary follows, that there is no essential distinction between a special tax constitutionally laid for special public purposes and a general tax laid for the administration of the government of the State. And that the rules of reverse priority applicable in the collection of successive general taxes, necessarily apply to the collection inter sese between successive special assessments laid for public improvements in cities and towns. We think, therefore, that the Kansas City Court of Appeals in this case has reached a correct conclusion, and that the decision of the St. Louis Court of Appeals was erroneous and should not be followed. The judgment of the circuit court is reversed and the cause remanded for proceedings in conformity with this opinion.

Woodson. C. J., and Faris, J., concur; Brotun, J., concurs in result; Graves and Blair, JJ., dissent ¡Walker, J., dissents in separate opinion.

WALKER, J.

(Dissenting.) — I do not concur in the majority opinion.- The conclusion reached therein, as well as in that of the Kansas City Court of Appeals, is based upon the theory that statutes authorizing special assessments are acts inherent in sovereignty and if a lien is created it should be construed as are liens of judgments for general taxes. The priority of liens for general taxes over other charges on real estate is held by this court in Morey Engineering & Construction Co. v. Ice Rink Co., 242 Mo. 241, to exist independent of legislative action. Granting the sovereignty of the State and its power to provide means for its existence, this power to create a lien must have had an origin ■either in the common law or a statute. At the common law there was no rule which made a levy and assessment of taxes ex proprio vigore a lien on land. The lien then, if it exists, must have its origin in a statute. An examination of the laws of this State from 1820 (Laws 1820, p. 97) to the revision of 1909 (Sec. 11499, R. S. 1909) discloses that we have had throughout our judicial history an express statute declaring a judgment for general taxes a first lien on the land assessed. This fact is in effect admitted by the majority opinion in the Morey case, and amply suffices for the existence of the rule as to priority in regard to general taxes without a resort to abstract reasoning in regard to sovereignty, necessity, etc. While the State’s necessity may originally have impelled the Legislature to create a lien giving a judgment for general taxes priority over other charges on land, if then created it did not previously exist. If the right to the lien existed independent of statute, what reason or necessity prompted legislative action in the first instance and has subsequently perpetuated the act for almost a century?

We are not concerned, however, with the doctrine announced in the Morey case relative to the priority of a lien for general taxes except to note what we deem a fallacy therein in regard to the origin and source of the lien as affecting the doctrine announced concerning the priority of liens for special taxes; and in the latter, we are only concerned in determining whether the last created lien takes priority over those of the same character but of an earlier date.

Before discussing the matter which constitutes the core of this controversy, some further reference to the doctrine of sovereignty as sought to be applied to special assessments is not improper. Let us see how far the reasoning supporting the doctrine of sovereignty of the State in regard to general taxes can be applied to special taxes levied by a municipality. The latter, in the exercise of its power of eminent domain, either under its charter or by virtue of an ordinance, authorizes public improvements, prescribes therein how the work shall be done and the manner in which the contractor shall be paid. Usually in such charter or ordinance a lien is created which becomes a charge upon the lot owner’s property to secure the payment of his proportion of the improvement. Thereafter all semblance of the city’s sovereignty, if it can be so entitled, ceases, and the matter becomes one of obligation between the lot owner and the contractor— the former’s liability being, of course, limited to the lot affected by the improvement. No question of public necessity exists, but solely one of improvement or the betterment of the condition of the city, in • which it seeks through the charter or ordinances to facilitate action and insure completion of the work by taking the initiative and directing the work.

This court, in recognition of the distinctive differences between general taxes and special assess-meats, recently said that the latter, while in a broad sense referable to the taxing power, were not taxes for public purposes or taxes at all within the purview of the Constitution relating to uniformity of taxation or of other sections of the article on revenue and taxation. [Ranney v. Cape Girardeau, 255 Mo. 514.] If special assessments for street improvements are not for public purposes, as the Ranney case holds, then the liens created to enforce the payment of such assessments bear no analogy to liens for general taxes and the argument as to the inherent rights of sovereignty in the creation of such special liens goes for naught. In the absence, therefore, of a rule of the common law, and the doctrine of inherent sovereignty being confined, if it exists, to liens for general taxes, and there being no general statute in relation to same, the intelligent determination of the matter at issue requires an examination of the charter and ordinances of Kansas City.

Preliminary to this examination and in support of the conclusion that charges on land of the character here under review are of purely statutory origin, this court has several times held that in the absence of an express charter or statutory authority a municipality has no power to create a lien for taxes imposed by it. [Jefferson City v. Whipple, 71 Mo. 519; Kansas City v. Payne, 71 Mo. 159; Schmidt v. Smith, 57 Mo. 135.]

Kansas City is governed by a special charter. Under a general statute (Sec. 9752, R. S. 1909) the city is given exclusive control over its public highways, streets, alleys and public places. This statute confers ample power on the city to provide in its charter or by ordinance for public improvements, such as the grading and paving of streets. As a consequence we find in section 22, article 8, of the charter, the following provision: “As soon as the cost of any work, payable in special tax bills . . . has been assessed against the tracts of land chargeable therewith, the Board of Public Works shall, at the time of delivering the tax bills to the contractor, . . . certify such apportionment and assessment to the city treasurer, etc.” In the same article (8), section 24, of the charter it is provided that: “every special tax bill issued under the provisions of this article shall be a lien on the land described therein upon the date of the certification thereof to the city treasurer, as in this article provided.”

If any question can arise as to the date of the commencement of the liens under these charter provisions, the following rulings in analogous cases become pertinent: In Haag v. Ward, 186 Mo. 325, while the date of the commencement of the lien was not the matter in issue, the court held, under the charter then in existence (1899), that “every special tax bill shall be a lien on the lands on the date of the receipt to the Board of Public Works thereforand in Buchanan v. Kansas City, 208 Mo. l. c. 681, in discussing certain condemnation proceedings there involved, it was held that assessments for benefits under the charter of Kansas City (section 20, article 10) constituted a lien from the date of the taking effect of the ordinance in pursuance of which the assessments were made. Elsewhere a like rule obtains as to the date of the commencement of the lien: Cemansky v. Fitch, 121 Iowa, l. c. 188; Meadville v. Dickson, 129 Pa. St. l. c. 8; Eagle Mfg. Co. v. Davenport, 101 Iowa, 493; 2 Cooley, Taxation (2 Ed.), 871; 4 Dillon on Municipal Corporations (5 Ed.), sec. 2485.

Prom the charter provisions cited, and in the absence of any general statute on the subject, we must conclude that liens for special tax bills exist only under the authority of the charter. It has been held in a number of other jurisdictions that liens thus created must be measured as to their commencement, duration, limitation and priority by the statute of their origin. [Lyon v. Alley, 130 U. S. 177; United States v. Railroad, 4 Dill. (U. S. C. C.) 71; Heine v. Levee Commrs., 19 Wall. (U. S.) 655; Sheffield City Co. v. Tr. National Bank, 131 Ala. 185; Binkert v. Wabash Railway Co., 98 Ill. 205; Fisher v. Brower, 159 Ind. 139; Garrettson v. Scofield, 44 Iowa, 35; Jaffray & Co. v. Anderson, 66 Iowa, 718; Fuller v. Day, 103 Mass. 481; Ky. Cent. Ry. Co. v. Commonwealth, 92 Ky. 64.] Nor can such liens arise by implication from the power to tax, but they must be expressly created by statute (Maish v. Bird, 22 Fed. 180; Fisher v. Brower, supra; State v. Beilin, 79 Minn. l. c. 134; Philadelphia v. Greble, 38 Pa. St. 339; Philadelphia v. Anderson, 142 Pa. St. 357); and when so created 'they cannot be enlarged by construction, and the law under which they exist must be strictly construed (Gudger v. Bates, 52 Ga. 285; Phelan v. Smith, 22 Wash. 397; Jaffray & Co. v. Anderson, 66 Iowa, 718); and a statute creating such liens will not be held to be retroactive unless it clearly appears to have been the legislative intent (Burnet v. Dean, 60 N. J. Eq. 9; Pittsburg’s Appeal, 40 Pa. St. 455; Clark v. Hall, 19 Mich. 356).

The liens here under consideration being, as we have shown, of statutory, or, more specifically, of charter origin, they must be considered in accordance with the law of their creation. This provides that they shall attach upon the date of their certification by the Board of Public Works to the city treasurer (sections 22 and 24, article 8, charter of Kansas City). An examination of the charter explains the reason why the time stated is fixed for the beginning of the lien. When the cost of the work payable in special tax bills has .been determined, the same is assessed against the tracts of land chargeable therewith and the Board of Public Works certifies the apportionment and assessment of such cost to the city treasurer. Until this has been done no levy of tax has been made against the land, and no lien can therefore attach. [Cemansky v. Fitch, 121 Iowa, l. c. 189.] If no lien can attach until the time stated, and the law giving the lien must be strictly construed and can have no retroactive force, as many authorities cited attest, then liens for special assessments under the charter of Kansas City become effective only in the order of the dates of their respective certifications to the city treasurer.' To hold otherwise would be to declare a lien created before the tax on which it is based had been levied.

In harmony, therefore, with the opinion of the St. Louis Court of Appeals in the well reasoned case of Parker-Washington Co. v. Corcoran, 150 Mo. App. 188, we are of the opinion that the judgment of the circuit court should be affirmed.


author: BOND, J.

text:
    C. C. CATRON et al., Trustees of Methodist Episcopal Church, South, Carthage, Missouri, v. SCARRITT COLLEGIATE INSTITUTE, L. D. RICE, Receiver, and W. J. CATRON et al., Appellants.
    In Banc,
    April 2, 1915.
    1. CONVEYANCE: Vested Estate: Reversion: Condition Subsequent. Where no condition subsequent was annexed to the grant, and the deed in its entirety and the circumstances attending its execution demonstrate that no reversion was intended upon the subsequent happening of a lawful condition, a deed of gift vesting the title in fee cannot be uprooted, and the fee will not revert to the grantor or his heirs.
    2. CHARITY: Definition. A charity is a gift, to be applied consistently with existing laws, for the benefit of an indefinite number of persons, either by bringing their hearts under the influence of education or religion, by relieving their bodies from disease, suffering or constraint, by assisting them to establish themselves for life, or by erecting public buildings or works or otherwise lessening the burdens of government; and it is immaterial whether the purpose is called charitable in the gift itself, if it is so described as to show that it is charitable in its nature. In its legal sense it comprises four principal divisions: Trusts for the relief of poverty; ■ trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes ■ beneficial to the community, not falling under any of the preceding heads.
    3. -: Public: Education: Endowment of President’s Chair. A deed “for and in consideration of the love for the cause of Christ and our earnest desire to promote his heritage on earth,” to an incorporated church school for students of both sexes, of certain lands and the proceeds thereof, to be applied “for the use and benefit of said institution of learning, especially for the endowment of the president’s chair in memory of our deceased son,” created a public charity for educational purposes; and the proceeds of the gift were not confined to the exclusive use of supporting the president’s chair, but so much as were not necessary for that purpose were left free to be used for other departments or the general support of the school.
    4. -: Perversion: Varying Educational Gift to Religious Use: Consent. Courts of equity will vary details of administration of a charity in order to effectuate the permanent purpose of its founder, but they will not alter the charity itself, or substitute another for it. Land and its proceeds were given to Scarritt Collegiate Institute at Neosho, the consideration expressed being “the love we bear for Christ and our earnest desire to promote his heritage on earth,” and the fund was to be applied “for the use and benefit of said institution of learning, especially for the endowment of the president’s chair in memory of our deceased son.” The school at Neosho was abandoned, and merged with another school at Morrisville under the name of “Searritt-Morrisville College.” Both were under the supervision and control of the' same ecclesiastical body, and that body directed that the fund be turned over to the trustees of a church in the town in which the grantors resided, to be used in the erection of a memorial church in memory of their deceased son. The only remaining grantor and the heirs of the other consented to such use of the fund and by proper instrument released all claim to the fund, and the trustees of Searritt-Morrisville College formally consented to said application, and Scarritt Collegiate Institute was dissolved as a corporation, and a receiver appointed. Held, first, that there was no forfeiture clause in the grant, and the fund did not revert to the grantors or their heirs on the abandonment of the school at Neosho, and they had no legal power to alter the charity or change the application' of the fund; second, the charity itself cannot be altered and another substituted therefor, and to permit the fund to be used for the erection of the said memorial church would, under the circumstances, be to contravene the expressed purposes of the gift, but the fund, being for educational purposes and primarily for the support of the president’s chair, must be turned over to Scarritt-Morrisville College, and used for said purposes; and, third, the consent of the trustees to its use in the erection of said church, and the direction of the church conference having supervision and control of both schools, were without legal authority, and cannot be held to justify the attempted alteration in the charity.
    Appeal from Barton Circuit Court . — Hon. B. Q. Thurman, Judge.
    Reversed and remanded.
    O. L. Cravens for appellants.
    (1) The whole case turns on the proper construction of the Hall deed conveying the Texas land. State ex rel. v. Adams, 44 Mo. 578; Pomeroy’s Equity Jur. (2 Ed.), 1036; Young v. Commissioners, 51 Fed. 593; R. S. 1909, sec. 2870 ; 4 Ency. Ev. 194; 17 Cyc. 616; Bcbb v. Bobb, 89 Mo. 419; Weiss v. Heitkamp, 127 Mo. 23; Henderson v. Henderson, 13 Mo. 151; Sell v. West, 125 Mo. 629; Holocer v. Holocer, 62 Mo. 267; McConnell v. Braymer, 63 Mo. 464; Hickman v. Hickman, 55 Mo. App. 303; 17 Cyc. 670, 646, 619; O’Bryan v. Ash, 169 Mo. 283; Ryder v. Ryder, 244 111. 297; Cowherd v. Boyd, 79 S. C. 174; 9 Ency. Ev. 329, 333, 432; Mfg. Co. v. Jaeger, 81 Mo. App. 239. (2) Under the statute the Hall deed passed the fee to the institute. Sec. 2870, R. S. 1909; Gannon v. Allbright, 183 Mo. 238; Yocum v. Siler, 160 Mo. 281; Utter v. Sidman, 170 Mo. 284; Small v. Green, 102 Mo. 104; Ball v. Woolfolk, 175 Mo. 286; Halifax Cong. Soc. v. Stark, 34 Yt. 243; Barre v. Wyoming Hist. Soc., 134 Pa. St. 616; Riñes v. Mansfield, 96 Mo. 394; Hunter v. Murphey, 126 Ala. 213. (3) Aside from the statute there can be no reversion to Hall. St. Louis v. Ferry Co., 88 Mo. 615; Garfield Township v. Herman, 66 Kan. 256; Carrol Co. Academy v. Gallatin Academy, 104 Ky. 621; Fnqnays v. Hopkins Academy, 58 S. W. (Ky.) 814; Hand v. St. Lonis, 158 Mo. 204; M. E. Clmrcli v. Gamble, 26 Ohio Cir.'Ct. 295; Heaston v. Commrs., 20 Ind. 398; Iligbee v. Rodmann, 129 Ind. 244; Raley v. Umatilla Co., 15 Ore. 172, 3 Am. St. 142; Sohie v. Trinity Chnrch, 109 Mass. 1; Episcopal City Miss. v. Appleton, 117 Mass. 326; Thornton v. Trammell, 39 Ga. 202; Antony v. Stephens, 46 Ga. 241; St. Stephens Chnrch v. Chnrch, 114 N. Y. S. 623; Freer v. Sanitarium, 115 N. Y. S. 734; Hay-don v. Railroad, 222 Mo. 126; Thompson v. 'Hart, 133 Ga. 450; Morrell v. Railroad, 96 Mo. 174; Krueger v. Railroad, 185 Mo. 227; Roberts v. Grume, 173 Mo. 572; Ellis y. Kyger, 90 Mo. 600; Studdard v. Wells, 120 Mo. 25; Messersmith v. Messersmith, 22 Mo. 369; Moore v. Wingate, 53 Mo. 398; O’Bryan v. Wagner, 94 Mo. 94. (4) Absolute title passed to the college direct, for its corporate purposes, without condition subsequent or even a trust. Buchanan v. Kennard, 234 Mo. 142; Brigham v. Hospital, 134 Fed. 513 ; Church v. Mitchell, 93 Md. 199’; Erwin v. Hurd, 13 Abb. N. C. (N. Y.) 91; Bird v. Merklee, 144 N. Y. 544; Hunter v. Murfee, 126 Ala. 213; 6 Cyc. 953; St. James Parish v. Bagley, 138 N. C. 384. (5) The recital in the deed as to the endowment of the president’s chair is a mere covenant and not a condition. Krueger v. Railroad, 185 Mo. 227; 14 Am. & Eng. Ency. Law (2 Ed.), 1043; 3 Am. Leading Cases in Equity, 385; 13 Cyc. 684; Stilwell v. Railroad, 39 Mo. App. 221; Investment Co. v. Railroad, 108 Mo. 50!; Long v. Moore, 19 Tex. Civ. App. 363; Meyer v. Swift, 73 Tex. 367; Koch v. Streuter, 232 111. 594; Druecker v. McLaughlin, 235 111. 367. (6) The Hall gift was not a private trust or charity, as contended, because lacking in characteristics of such a use. 2 Pom. Eq. Jur., sec. 987; 1 Perry, Trusts, sec. 384; Doyle v. Whalen, 87 Me. 414; Ireland v. Geraghty, 15 Fed. 35; Field v. Seminary, 41 Fed. 371; Heuser v. Harris, 42 111. 425; Morgan v. Seminary, 70 111. App-. 575; Webber v. Bryant, 161 Mass. 400; Hathaway v. Sackett, 32 Mich. 97; Bell Co. v. Alexander, 22 Tex. 350.

      McBeynolds & Halliburton for respondents.
    (1) The deed in question is specific in its purpose and conveys the real property therein described to a specific trustee, the grantee in said deed, to carry out that purpose. That purpose is charitable in its nature and intended not only for educational purposes but as a memorial as well. By its terms the trustee is directed to carry out the objects of the founders of the trust. The place of executing the trust is named in the deed by the founders. The trustee has ceased to exist. The purpose of the gift has failed. The foundation of the charity remains and is a resulting trust by reason of the failure of the grantee, and by reason of the failure of application as directed by the terms of the said deed to the trustee. It is a universal law that the cardinal principle in the interpretation of a deed or a will founding a charity or trust when a necessity arises calling for an interpretation is to get at the intention and purpose of the party founding the trust or charity and this may be done by the instrument itself or by the aid of oral testimony or by both. Walton v. Dmrntra, 152 Mo. 489; Simmons v. Cabanne, 177 Mo. 354; Small v. Field,'102 Mo. 122; Redman v. Barger, 118 Mo. 573; Cross v. Hoch, 149 Mo. 325; Armor v. Frey, 226 Mo. 673; Speed v. Railroad, 163 Mo. 125; Bean v. Kenmuir, 86 Mo. 668; Hurst v. Von De Veld, 158 Mo. 246; Bards v. Brown, 167 Mo. 457; Davidson v. Manson, 146 Mo. 612; Linville v. Greer, 165 Mo. 397; Htter v. Sidrnan, 170 Mo. 300; McConnell v. Brayner, 63 Mo. 464. (2) The deed in question is specific in its purpose. That purpose is for a memorial, and incidentally educational and religious purposes. It is not a general or public charity for the reason that’ the trustee to carry out the objects of the founders is named, and the place of executing the trust or charity is named. The trustee has ceased to exist. The purpose of the gift has failed and as -a consequence a resulting trust has been created and it goes to the benefit of the founders of the trust or charity, their heirs or their assigns. McRoberts v. Moody, 19 Mo. App. 32; Woodruff v. Marsh, 38 Am. St. 359; Bullard v. Shirley, 153 Mass. 559; Stratton v. Physio-Medical College, 119 Mass. 505-, 11 Am. St. 112, 5 L. R. A. 33; Easter-brooks v. Tillinghast, 5 Gray, 17; Clark v. Taylor, 1 Drew, 612; Corbyn v. French, 1 Yes. 118; Russell v. Kellett, 3 Smale & G. 261; Fisk v. Attorney-General, L. R. 1 Eq. 521; In re Rymer (1895), 1 Ch. 19; Carbery v. Cox, 3 Ir. Ch. 231; Attorney-General v. Bishop of Chester, 1 Bro. C. C. Ill; Cherry v. Mott, 1 Mylne & C. 123; Teele v. Bishop of Derry, 60 Am. St. 102. “The purpose for which a trust was created having ceased, the trust itself ceases and the property reverts to the creator of the trust. ’ ’ Salmon v. Sternfield, 102 N. Y. 665; Jenkins v. University, 19 Pac. 250; Hopkins v. Grimshaw, 165 U. S. 312. If a trust for a specific purpose fails by the failure of the purposes, the property reverts to the donor or his heirs; and if the gift is made upon a trust insufficiently or ineffectually declared, as if it is too indefinite, vague and uncertain to be carried into effect, the gift will revert to the seller, his heirs or representatives. McHugh v. McCole, 97 Wis. 166; Heirs v. Murphy, 10 Wis. 276; Mought v. Gelzendonner, '57 Am. Rep. 352; Kelley v. Nichols, 18 R. I. 62, 19 L. R. A. 113; McAuley v. Wilson, 18 Am. Dec. 587; Hadley v. Forsee, 203 Mo. 118.
    STATEMENT.
    This suit was brought to the January term, 1910, of the circuit court of Jasper county. The petition alleges that the plaintiffs are the board of trustees of the Methodist Episcopal Church, South, of Carthage, Missouri; that the defendant Scarritt Collegiate Institute is a corporation of this State, organized as an institution of learning, and subject to the supervision and control of the Southwest Missouri Conference of the Methodist Episcopal Church, South; that the other defendants are the board of curators of Scarritt Collegiate Institute; that on the 19th of September, 1892, W. E. Hall and wife executed warranty deeds conveying sixteen hundred acres of land situated in the State of Texas, to the defendant Scarritt Collegiate Institute, then located at Neosho in Newton county, Missouri.
    The petition further alleges that said grantee has sold the land so conveyed to it and realized therefrom the sum of about $13,500, evidenced by money and notes secured by deeds of trust; that the grant of the lands described in said deeds was expressed to be “for the use and benefit of said institution of learning, especially for the endowment of the President’s Chair in memory of our deceased son, J. Winston Hall.” And that each of said deeds recited “said land or the proceeds thereof is to be applied by said corporation to the object hereinbefore stated.”
    The petition further alleges that the defendant Scarritt Collegiate Institute has ceased to exist as an institution of learning at the city of Neosho, Missouri, for several years; that all its furniture and appliances have been removed to other institutions of learning, and that the church conference has directed the holders of the legal title to the Collegiate grounds and buildings to sell and dispose thereof, and that said conference has further ordered and directed that the fund arising from the sale of the Texas lands donated to the Scarritt Collegiate Institute should be paid over by the curators of that corporation to the plaintiffs, trustees, to be used in the erection of a memorial church at Carthage, Missouri. That in 1907, W. E. Hall, one of the grantors of the two deeds, died, leaving his wife and two sons as Ms only heirs; that these have assigned and transferred to petitioners in writing all of their right, title and interest in and to said fund, on the 20th of September, 1909; that petitioners accepted said assignment and agreed to nse the same in the construction of a memorial church in the city of Carthage, Missouri, and have demanded the same from the defendants who have refused and neglected to pay it over to plaintiffs. Wherefore, petitioners pray that the said defendants be required to make a full and complete statement of said fund and a full accounting for the same, and be directed to turn over the money and notes representing it to the plaintiffs. Certain of the defendants, who were curators of the Scarritt Collegiate Institute, filed an answer declining to contest the right of plaintiffs as set forth in their petition, denying that they had possession of the fund in controversy, and asking to be discharged free of costs. The remaining-members of the board of curators filed an answer, which so far as material on this appeal, set up in defense to the claims of plaintiffs as set forth in their petition, the following averments in substance: That the Scarritt Collegiate Institute was incorporated in 1888 to conduct an institution of learning for students of both the male and female sex at Neosho, Missouri, under the auspices of the Methodist Episcopal Church, South, and not subject to any particular conference of said church. That the deed conveying the Texas lands to said corporation was an unconditional gift under the warranty of the grantors against claims of all persons; that upon sale of said lands its proceeds were safely invested and amounted on the 27th of December, 1909, to about $13,625.20, specifying the notes making up that sum. That neither the wife nor the two surviving children of the grantors in said deed had any interest in said fund nor could assign the same to plaintiffs. Issue was taken by reply. The cause was transferred by stipulation to the Barton Circuit Court. On the trial, the plaintiffs introduced in evidence the'two deeds conveying the Texas lands, which, though for different tracts, are exactly alike in all other terms and omitting descriptions, are' to-wit:
    KNOW ALL MEN BY THESE PRESENTS:
    That we W. E. Hall and M. E. Hall, his wife, at City of Carthage, County of Jasper and State of Missouri, parties of the first part, for and in consideration of the love we bear.for the cause of Christ and our earnest desire to promote his heritage on earth do give and grant and by these presents convey unto the Scarritt Collegiate Institute, a corporation under the laws of the State of Missouri, located at Neosho, Newton .county, Missouri, as party of the second part, for the use and benefit of said institution of learning especially for the endowment of the President’s chair in memory of our deceased son J. Winston Hall, the following described real estate in the county of Hardeman, State of Texas, ... in all 1600 acres of land and more or less which said land or the proceeds thereof is to be applied by said corporation to the object hereinbefore stated and the said corporation is to have and to hold the property aforesaid for the use aforesaid free from the claim or claims of the grantors herein, their heirs or assigns and free from the claims of all other persons whomsoever.
    In witness whereof we have hereunto fixed our seals and subscribed our names this 19th day of September, 1892
    W. E. Hall (Seal)
    M. E. Hall (Seal)
    (Italics ours).
    Some oral testimony was adduced, over the objections of defendants, as to the purpose of the grantors in said deeds, which, and also the documentary evidence, as far as necessary, will be referred to in the opinion.
    The defendant Scarritt Collegiate Institute on January 12,1909, some years after it had practically ceased to conduct its business at Neosho, entered into articles of association with another institution of learning and the two were combined by decree of the circuit court of Polk county, under the name of “ Searritt-Morrisville College,” located at Morrisville, Polk county, Missouri. On April 29,1909, the board of curators of this institution, by resolution, requested tbe board of curators of tbe Scarritt Collegiate Institute to return tbe funds in controversy to tbe Halls to be used to erect a memorial cburcb at Cartbage, Missouri, in memory of tbeir deceased son. Tbe cburcb conference also directed tbe same disposition of the fund. These requests were refused by tbe contesting curators of tbe Scarritt Collegiate Institute. Since tbe institution of this suit, a decree dissolving tbe Scarritt Collegiate Institute was rendered at tbe February term, 1911, by tbé circuit court of Newton county, in a qtw warranto proceeding brought against it by tbe prosecuting attorney of that county, wherein a receiver was appointed of its assets, who is in charge of tbe fund in dispute and was admitted to be a party to this action prior to its appeal to this court.
    Upon tbe consideration of tbe evidence tbe learned trial court rendered a decree for plaintiffs as prayed in that petition and a personal judgment against tbe contesting curators from which an appeal has been duly perfected to this court.
   OPINION.

I.

BOND, J.

(After stating tbe facts as above.) — Tbe interpretation of tbe deed copied in tbe statement is tbe first question for review. It is insisted by appellants that tbe terms of that instrument did not create an estate upon condition subsequent, and hence tbe grantors — tbe Halls — and a fortiori, tbeir assignees, have no right of re-entry.

It is also urged by appellants that tbe terms of tbe deed created an irrevocable public charity for educational purposes, which could not be diverted to tbe building, of a denominational cburcb, therefore it cannot be awarded to tbe trustees of tbe Methodist Cburcb at Carthage, Missouri (plaintiffs), to erect a church edifice.

The decision of these two points will necessarily involve the decision of the contrary contentions made by respondents. Taking them in turn: An inspec^011 °f tib-e deed in the light of the applicatory law discloses from its terms that no C0n(jj^011 subsequent was annexed to the, grant of the estate. While a condition subsequent may be inserted in a conveyance of lands in 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 to 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. [Morrill v. Railroad, 96 Mo. 174; Krueger v. Railroad, 185 Mo. 227; Roberts v. Crume, 173 Mo. l. c. 581; Ellis v. Kyger, 90 Mo. 600; Studdard v. Wells, 120 Mo. 25; Messersmith v. Messersmith, 22 Mo. 369; Moore v. Wingate, 53 Mo. 398; O’Brien v. Wagner, 94 Mo. 93; Haydon v. Railroad, 222 Mo. l. c. 139; Lackland v. Hadley, 260 Mo. 539.]

The language in the deed in question does not bring it within the scope of this rule or its reason. The deed is a conveyance in fee with general and special warranty made by Hall and wife to an incorporated seminary of learning. The motive of' the gift was Christian charity. The object of the gift was “the use and benefit” of the school “especially for the endowment of the President’s chair in memory” of a son of the givers. There is nothing in any of these quoted terms nor the contents of the entire deed, which measures the continuance of the fee vested by the deed, upon the happening or nonhappening of any condition or event specified in the instrument. Since the deed contains no provision in terms, or by equivalent language, that the estate conveyed should be forfeited upon any subsequent event, it necessarily follows that no clear implication can be contained in the language of the deed, that it was the intention of the grantors, that the estate conveyed in fee should revert to them or their heirs. It follows that the conveyance or assignment by the wife and children of Mr. Hall of the interest of the grantors under the deed in question carried no rights of reversion or re-entry, because none remained in the 'grantors after the execution by them of the unconditional grant of the property described in their deed. At common law such rights, if they inhered in the grantors under the terms of a deed made by them, would be restricted to their heirs. That rule seems to be modified by our statute permitting the assignment of any interest whatever in real estate. [R. S. 1909, sec. 2787; Allen v. Kennedy, 91 Mo. 324.] And such is the holding in other jurisdictions. But this point need not be decided, since in the instant case no rights of reversion or re-entry inured to the grantors, or their heirs, by the terms of the deed under review. Hence, they could assign none to the plaintiffs.

II.

The only question remaining is whether it appears from the language of the deed and the circumstances under which it was made that it was the purpose and object of the grantors to create a public, as eontradistinguished to a private, charity. At the time it was executed, Mr. Hall was a member 0f the corporation — Searritt Collegiate Institute, to which the gift was made. He was necessarily informed of the objects for which that corporation was created — the general education of all pupils of either sex, who should seek its training and instruction. This was the declared object for which, the institution was chartered. In making a gift for its “use and benefit” it was presumptively his purpose to subserve the objects and purposes for which it was created. The fact that the deed further provided for a specific use of the lands, or their proceeds, by applying them to the maintenance of one of the professorships of the school, does not alter the charitable nature of the gift. The institution could not carry on its business of education without the aid of the president nor the instruction imparted by him as a member of its faculty. By appropriating the gift to that specific purpose so much of the other revenues of the school as would have been necessary to support that chair, were left free to be used for other'departments or its general support. This designation of the use to be made of the property conveyed by the deed was none the less a gift to the educational purposes for which the school was established, than if it had been provided for general support of all of its faculty rather than for the maintenance of a single professorship; for the instruction of that chair, like all others, was open to any student prepared to receive it. It is of the essence of a public charity that it should be for the benefit of the public at large or some portion thereof, or upon an indefinite class of persons. In a recent work, it is said:

“Probably the most comprehensive and carefully drawn definition of a charity that has ever been formulated is that it is a gift, to be applied consistently with existing laws, for the benefit of an indefinite number •of persons, either by bringing their hearts under the influence of education or religion, by relieving their bodies from disease, suffering, or constraint, by assisting them to establish themselves for life, or by erecting or maintaining public buildings or works or otherwise lessening the burdens of government. It is immaterial whether the purpose is called charitable in the gift itself, if it is so described as to show that it is charitable-in its nature. Another definition capable of being easily understood and applied is that given by Lord O.amden as follows: ‘A gift to a general public use, which extends to the poor as well as the rich.’ The theory of this is that the immediate persons benefited may be of a particular class, and yet if the use is. public in the sense that it promotes the general welfare in some way, it has the essentials of a charity.”' [Ruling Case Law (5 R. C. L.), pp. 291-292.]

The same book in referring to the multiform purposes of a public charity states the law as follows:

“Reverting to the definition of a legal charity, it will be easily seen that it is impossible to specify the innumerable objects or purposes for which a charitable trust may be created. The difficulty is inherent in the-subject-matter itself. A charitable trust or a charity is a donation in trust for promoting the welfare of mankind at large, or of a community, or of some class forming a part of it, indefinite as to numbers and individuals. It may, but it need not, confer a gratuitous, benefit upon the poor, or look to the care of the sick or the insane, or seek to spread religion or piety. Schools and libraries, equally with asylums, hospitals, and. religious institutions, are included within its scope. Therefore the enforcement of charitable uses cannot be limited to any narrow and stated formula. As has been well said, it must expand with the advancement of civilization and the daily increasing needs of men. New discoveries in science, new fields and opportunities for human action, the differing' condition, character and wants of communities and nations, change and enlarge the scope of charity, and where new necessities are created new charitable uses must be established. The underlying principle is the same; its application is as varying as the wants of humanity. Charity in its legal sense comprises four principal divisions: trusts for the relief of poverty; trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the cormmmity, not falling under any of the preceding heads. The trusts last referred to are not the less charitable in the eye of the law, because incidentally they benefit the rich as well as the poor, as indeed every charity that deserves the name must do, either directly or indirectly. ’ ’ [5 R. C. L: 322-323.]

The language of the deed under review shows that the grant, in the light of the purposes for which the grantee was organized, was a public charity falling under the head of the second division mentioned above. That is, that it was the object of the grantors to create a charitable trust for the advancement of education and this was none the less the general purpose of the founders, of the charity though they designated it should he specifically applied to the principal chair of instruction, provided by the institution for its educational work, and that it should memorialize the name of a son of the grantors. This designation only pointed out the particular use which should be made of the portion of the revenue accruing to the Scarritt Collegiate Institute from this donation, and enabled it to be referred to “as the Hall Memorial Fund,’’ thereby identifying it and distinguishing it from other endowments or revenues belonging to the educational corporation.

Our conclusion is that it was the purpose of the grantors and the effect of their deed to vest in the grantee a charitable trust of the proceeds of the property conveyed for educational purposes and that this donation created a public charity. [Crow ex rel. v. Clay County, 196 Mo. 234; Women’s Christian Assn. v. Kansas City, 147 Mo. l. c. 123-4; 6 Cyc. 900.]

III.

The important question under the facts in this record is what disposition must be made of the fund in controversy?

The conceded facts show that, after using such fund for a number of years, the Scarritt Collegiate Institute abandoned at Neosho, Missouri, the purposes for which it had been "incorporated, and became merged, under a proper decree of incorporation, with another institution of learning under the name “Scarritt-Morrisville College.” That a receiver has been appointed of the assets of the Scarritt Collegiate Institute under a decree of dissolution, and is now in possession of the fund given to it as a charitable trust.

The record further discloses that the church conference, under whose control and supervision the Scarritt Collegiate Institute carried on its educational work, has directed the curators of that dissolved'corporation to turn over the charitable fund to the plaintiffs, who are the trustees of the Methodist Church at Carthage, to be used by them in building a house of worship, and that this has been assented to by the curators of the Scarritt-Morrisville College, located at Morrisville, Polk county, Missouri. We are unable to assent to that disposition of the charitable property, in view of the established principles in this State and elsewhere, governing the administration of a public charity by courts of equity.

The application of the doctrine of cy pres by the crown’s prerogative under the sign manual of the king through his chancellor has no place in the courts of law or equity in this country. But the doctrine of judicial administration of cy pres, whereby courts of equity in virtue of their inherent jurisdiction approximate the intention of the founder of a public charity, or the maker of a will, or the parties to a contract looking to the future, is universally applied in Missouri and other States of the Union. [5 R. C. L., Titles — Charities, secs. 104-105, 7 L. R. A. (N. S.) 471.]

In virtue of its powers in this respect, courts of equity in this State will often vary the details of administration of a charity in order to effectuate the paramount purpose of its founder, but they will not alter the charity itself or substitute another for it. [Lackland v. Walker, 151 Mo. 210, and cases cited; Lackland v. Hadley, 260 Mo. 539; Hadley v. Forsee, 203 Mo. l. c. 428.]

In the case at bar, the charitable trust was created to aid the work of an incorporated educational institution. The paramount purpose of the giver of the charity was the advancement of learning. That purpose a court of equity has no power to thwart or alter. But it has full authority to effecuate that purpose by varying the administration of the charity, if necessary to accomplish the object of the charitable trust, and, in so doing, it is only exercising the judicial power of administering cy pres, which is an essential attribute of courts of chancery.

The case first cited, Lackland v. Walker, supra, contains an exhaustive discussion of the powers of courts of equity in this respect, and affirms the doctrine that an unconditional public charity is irrevocable and perpetual, leaving no interest whatever in the founder, his heirs or assigns; that its general object cannot be essentially altered or displaced by judicial action, which is restricted to the preservation and enforcement of the charity established, and not another — by such changes in the method and details of its administration, as will conduce to the objects had in view when it was created. Applying that principle to the case at bar, the custodians of the fund in controversy should be required to deliver it to the institution of learning with which the original grantee has been combined in order to carry on its educational work, upon a trust imposed upon that corporation to apply this fund as a memorial endowment, to the support of a president’s chair, as directed in the original deeds.

This direction is made for the reason that, the consolidated college has preserved the distinctive name of the former trustee of the charity and is doing the same work under the same denominational supervision. And to make it the medium of the dispensations of the ' charity of the founder will not in any way alter the objects of the gift or the means it was designed to employ ■ — endowment of a president’s chair — neither will there be any change in ecclesiastical control, for the new college, as was the former, is conducted under the auspices of the Methodist Episcopal Church, South. The fact that the curators of the succeeding college, prior to judicial construction of its rights, were willing to turn over the charitable funds for the construction of a church building at Carthage, creates no estoppel against the corporation represented by them and, least of all, does not preclude the students who are the real beneficiaries of the educational instruction, which the gift is designed to provide.

No other disposition of the fund could be made under existing conditions without creating a different charity from that defined by the givers. To devote it to the erection of a memorial church would contravene the expressed purposes of the gift, just as much as if it were applied to the erection of a hospital. In effect, it would create a religious charity, instead of the educational one provided by the deeds. This the courts have no power to do. They can conserve and effectuate the one created by its author, and to that end, they may alter the details and agencies of administration, but they cannot substitute an essentially different scheme of public benefaction for the plan specifically designated by the givers.

This conclusion works a judicial administration cy fres the charitable trust created without altering its purposes, objects and uses. If necessary to the accomplishment of these directions, the Attorney-General may become a party to a proper proceeding.

It follows that the judgment of the trial court is reversed and the cause remanded, to be proceeded with in a manner not inconsistent with this opinion.

All concur except Brown, J., who dissents, and Blair, J., who takes no part, not having heard the argument.