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Opinion of the Court.

Mass. 147, and Mahoning County v. Young, 16 U. S. App. 253, also cited by the defendant, likewise turned upon a question of forfeiture for breach of a condition subsequent in a deed to a municipal corporation.

In the case at bar, the trust created by the deed having been terminated, according to its express provisions, by the land ceasing to be used as a burial ground, and the dissolution and extinction of the society for whose benefit the grant was made, there arises, by a familiar principle of equity jurisprudence, a resulting trust to the grantor and his heirs, whether his conveyance was by way of gift, or for valuable consideration. 2 Fonblanque Eq. 116, 133, and notes; 2 Story Eq. Jur. SS 1199, 1200; IIill on Trustees, 113, 133; Easterbrooks v. Tillinghast, and Reed v. Stouffer, above cited.

The question suggests itself whether the case at bar falls within the rule of law, known as the rule against perpetuities, by which an estate, legal or equitable, granted or devised by one person to another, which, by the terms of the instrument creating it, is not to vest until the happening of a contingency which may by possibility not occur within the period of a life or lives in being (treating a child in its mother's womb as in being) and twenty-one years afterwards, is void for remoteness, and consequently a limitation over to a third person which may possibly not take effect within the period is void, and the estate remains in the first taker. That rule does not apply to a gift to a charity, with no intervening gift to or for the benefit of a private person or corporation ; or to a contingent limitation over from one charity to another. But it does apply to a grant or devise to a charity after one to a private person; as well as to a grant or devise to a private person, although limited over after an immediate gift to a charity. Russell v. Allen, 107 U. S. 163, 171 ; Jones v. llaversham, 107 U. S. 174, 185; McArthur v. Scott, 113 U. S. 340, 381, 382; Brattle Square Church v. Grant, 3 Gray, 142; Theological Education Society v. Attorney General, 135 Mass. 285; In re Tyler, (1891) 3 Ch. 252 ; In re Bowen, (1893) 2 Ch. 491.

But when there is no limitation over in the grant or devise, and the grantor or devisor, or the heirs of either, claim the

Opinion of the Court.

estate, not under the grant or devise, but because, by reason of the failure thereof, the estate, legal or equitable, as the case may be, reverts or results to him or them, the rule against perpetuities is inapplicable.

Even when the first gift is strictly upon condition subsequent, requiring an entry on the part of the grantor or devisor, or his heirs, to revest the estate in him or them, the American courts have treated their title as unaffected by the rule against perpetuities. Cowell v. Springs Co., 100 U. S. 55; Gray v. Blanchard, 8 Pick. 283; Austin v. Cambridgeport Parish, 21 Pick. 215; Guild v. Richards, 16 Gray, 309; Tobey V. Moore, 130 Mass. 448; Gray on Perpetuities, SS 304–310.

But the deed in this case is clearly, in terms and effect, a conveyance in trust, with no words apt to create a condition. Stanley v. Colt, 5 Wall. 119; Barker v. Barrows, 138 Mass. 578; Attorney General v. Wax Chandlers' Co., L. R. 6 H. L. 1. In such a case, it has been held, both in this country and in England, that, upon the failure of the trust declared in the deed, although depending upon a contingency which might not happen within the period prescribed by the rule against perpetuities, the resulting trust to the grantor and his heirs is not invalidated by the rule. Easterbrooks v. Tillinghast, above cited; Stone v. Framingham, 109 Mass. 303; First Universalist Society v. Boland, 155 Mass. 171; In re Randell, 38 Ch. D. 213, 218, 219; In re Bowen, (1893) 2 Ch. 491, 494. In Randell's case, Mr. Justice North said: “In my opinion, a direction that in a particular event a fund shall go in the way in which the law would make it go in the absence of such a direction, cannot be said to be an invalid gift, or contrary to the policy of the law.” And in Bowen's case, Mr. Justice Sterling said: “As property may be given to a charity in perpetuity, it may be given for any shorter period, however long; and the interest undisposed of, even if it cannot be the subject of a direct executory gift, may be left to devolve as the law prescribes."

In the case at bar, our conclusions as to the effect of Forrest's deed, assuming it to be in the nature of a valid dedication for a pious and charitable use, may be summed

Opinion of the Court.

up as follows: The trustees named in the deed took the legal estate in fee. The equitable estate in fee was from the beginning, and always remained, in the grantor and his heirs. The trust declared in the deed, for a burial ground for the Union Beneficial Society, came to an end, according to its own express restriction and limitation, by the land ceasing to be used as a burial ground, and the dissolution of the society. Thereupon, the trustees held the legal estate in fee, subject to a resulting trust to the grantor's heirs, unaffected by the rule against perpetuities; and the legal estate of the trustees descended to their heirs, and passed by the deeds of the latter to the defendant, charged with this resulting trust.

The alternative that the trust expressed in Forrest's deed was not a charitable use, but was void as tending to create a perpetuity, and that the trustees, immediately upon the execution and delivery of the deed to them, held the land subject to a resulting trust for the grantor and his heirs, would be wholly inconsistent with the position always taken by the defendant Grimshaw, and by the trustees and the society under whom he claims title, and could not, therefore, enure to his benefit by way of defence to this suit, on the ground of laches, or otherwise. All Forrest's heirs (except Mrs. Brooks, who had conveyed her title to the defendant Grimshaw) have joined as plaintiffs in this bill to enforce the resulting trust in their favor. Both they and Grimshaw had acted upon the theory that the deed of Forrest created a valid trust for the Union Beneficial Society. The plaintiffs made no claim to the land, so long as it was used by that society for a burial ground. And neither the trustees, nor Grimshaw claiming under them, contended that they took an absolute title, free from the trust expressed in Forrest's deed. The real controversy, between the plaintiffs and Grimshaw was as to the construction of the deed, and as to the duration of the express trust therein declared for the Union Beneficial Society.

The objection that the plaintiffs' only remedy is at law is unavailing. The bill, besides specifically praying that the land be decreed to have reverted to Forrest's heirs, and that

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Opinion of the Court.

a partition be ordered to be made between the defendant Grimshaw, as grantee of Mrs. Brooks, one of Forrest's heirs, and the plaintiffs, his other heirs, and that the deeds to Grimshaw from the heirs of the trustees be declared to be a cloud upon the plaintiffs' title, contains a prayer for general relief, under which the court may grant any relief justified by the facts stated in the bill and appearing in proof. Jones v. Van Doren, 130 U. S. 684, 692.

Upon the allegations of the bill, and the proofs at the bearing, the trustees named in Forrest's deed, and their heirs, and Grimshaw as grantee of the latter, took the legal title in fee, in any aspect of the case, subject to a resulting trust for the heirs of the grantor. A resulting trust is a creature of equity, and can be enforced in a court of chancery only. Wilkins v. Holman, 16 Pet. 25, 59. Moreover, the title of the plaintiffs appearing upon the allegations and proofs to be purely equitable, the bill may also be maintained for partition of the land. Act of August 15, 1876, c. 297, 19 Stat. 202; Willard v. Willard, 145 U. S. 116; Lucas v. King, 2 Stockton, (10 N. J. Eq.) 277.

The court, having acquired jurisdiction of the bill upon both these grounds, was authorized to retain it for the purpose of administering complete relief between the parties, including the question of any allowance to which Grimshaw might be entitled for the expense incurred in the removal of the bodies from the burial ground to other cemeteries, or upon any other account.

The decree below appears to have proceeded upon the misapprehension that the heirs of Forrest were not entitled to any relief, unless by reason of his membership in the Union Beneficial Society. Decree reversed, and case remanded for further proceedings

in conformity with this opinion.

1

Opinion of the Court.

ROBINSON v. CALDWELL.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE

DISTRICT OF IDAHO.

No. 162. Submitted January 19, 1897. – Decided February 1, 1897.

The judiciary act of 1891 does not give the defeated party in a Circuit

Court the right to have his case finally determined on the merits both in this court and in the Circuit Court of Appeals.

The case is stated in the opinion.

Mr. Assistant Attorney General Dickinson for appellant.

Mr. Charles A. Maxwell, Mr. George S. Chase and Mr. James W. Reid for appellee.

MR. JUSTICE Harlan delivered the opinion of the court.

This suit was brought on the 20th day of October, 1893, by Caldwell against Robinson in the District Court of the Second Judicial District of the State of Idaho.

It appears from the complaint that the plaintiff claimed to be the owner of a certain tract of land in Idaho, containing six hundred and forty acres, and that the validity of his title depended partly, if not altogether, upon the construction of a treaty made between the government of the United States and the Nez Perce Indians on the 11th day of June, 1855. 12 Stat. 957. It also appears that there was drawn in question in the Circuit Court the constitutionality of the act of Congress of March 3, 1873, c. 324, 17 Stat. 627.

A temporary injunction was issued in the cause, enjoining the defendant and his servants, counsel and agents, and all others acting in his behalf, from interfering or intermeddling with the plaintiff in the control and peaceable possession of the lands and premises described in the complaint.

Upon a petition subsequently filed in the state court by the defendant, the cacse was removed into the Circuit Court of

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