The decision and opinion of this Court in
Lowrey v.
Hawaii, 206 U. S. 206,
construed and followed as to construction of contract involved and
liability thereunder of the Hawaiian government.
A condition to teach a definite Christian doctrine is not
satisfied by teaching merely a form of general evangelical
Christianity.
Where the breach of a covenant of use entails either forfeiture
or payment of a specified sum, the grantee has the right of
election until disavowal on his part and denial of the alternative
obligation, and until then, notwithstanding a continuous breach,
the statute of limitations does not run against the grantor.
A deed of trust conveying all lands of grantor or in which it
has any interest held in this case to include its right to a
liquidated sum in lieu of right of reentry for a breach of covenant
of use of lands theretofore conveyed by it.
19 Haw. 123 reversed.
The facts are stated in the opinion.
Page 215 U. S. 559
MR. JUSTICE McKENNA delivered the opinion of the Court.
This is the second appeal in this case. The first appeal was
from a judgment in favor of the territory, entered upon demurrer to
the complaint, which judgment was reversed.
Lowrey v.
Hawaii, 206 U. S. 206.
Page 215 U. S. 560
The action is for the sum of $15,000, which the Hawaiian
government reserved the right to pay, instead of deeding back
certain lands conveyed to her by the American Board of
Commissioners for Foreign Missions in 1849. The facts as alleged in
the complaint are set out with considerable fullness in the report
of the case on the first appeal and need not be repeated. Upon the
return of the case to the supreme court of the territory, an answer
was filed, denying "all and singular the matters, allegations, and
things set forth," and giving notice that the territory would "rely
in making its defense
inter alia on the statute of
frauds." Subsequently the plaintiffs made a motion upon the record
and "upon the judgment in the Supreme Court of the United States"
for judgment. The territory made a motion to amend its answer to
set up the statute of limitations. The plaintiffs' motion was
denied, that of the territory was granted, to which rulings
plaintiffs excepted. Testimony was taken, which was directed
principally to the question of the breach of the condition upon
which the conveyance to the government was made. The court, in its
opinion, says that, in addition to the "large amount of documentary
and other evidence," it has "also referred to proceedings of a
public nature, of which it could ordinarily take judicial notice,
and to documents from the public archives, when specially referred
to in the exhibits on file." Concluding from this and the other
evidence that the plaintiffs were not entitled to recover, it
rendered judgment for the territory.
The decision on the first appeal is an important factor in the
determination of this, for upon that, as a guide, the supreme court
of the territory accepted evidence and determined the meaning of
the agreement by which the lands were conveyed.
The American Board of Foreign Missions for many years prior to
1850 conducted a Protestant mission in the Hawaiian Islands, and,
as an essential part of its work, carried on many schools. Its most
notable work was centered in a school, established in 1831 at
Lahainaluna, on the island of Maui, where
Page 215 U. S. 561
it possessed a large tract of land. The purpose for which the
conveyance of this school to the Hawaiian government was made, and
the course of instruction in it, before and after the conveyance,
as explaining that purpose make the controversy in this case. It is
contended by appellants that the course of instruction in the
institution comprised not only the usual topics belonging to
secular learning, but included also direct religious teaching and
training in the doctrine represented by the mission -- that is, the
doctrines of the Congregational and Presbyterian churches of the
United States, and was expressed in a "confession of faith," which
was attached to the agreement that transferred the property to the
Hawaiian government. "The central purpose of the agreement was,"
counsel for appellants contended on the other appeal, "to
"continue" an established institution, the keystone of a system
with defined and well known aims, the chief being the promotion of
religion by instruction in definite religious truth." The opposing
contention was that the doctrine to be taught was not specialized,
that there were no restrictions upon the course of instruction,
except that it should not be, using the words of the agreement,
"contrary to those theretofore inculcated by the mission;" and,
insisting that those words constituted the complete measure of the
obligation of the government, resisted the attempt of the
appellants to go outside of them to ascertain the purpose of the
parties. These contentions were considered and the grounds of them
accurately distinguished. The contention of the appellants was
accepted. It is not necessary to repeat our reasoning at length.
Our conclusion was that the Hawaiian government engaged to teach
not only secular science, but the definite religious doctrine
expressed in the confession of faith attached to the agreement. The
latter, we said, was "not in a formally executed paper," but was
found in a correspondence. "And taking the whole of it," it was
said, "there is very little aid from extrinsic evidence needed to
demonstrate its meaning and purpose." And after considering some
parts of the correspondence, we concluded
Page 215 U. S. 562
as follows:
"The correspondence concerned the transfer of a school
established in 1835, the design of which was to perpetuate the
Christian religion, and with an object described to be 'still more
definite and of equal or greater importance,' -- that is, 'to
educate young men to be Christian ministers.' A religious
instruction was prescribed. Of this the government was informed
when the proposition was made to transfer the school to 'its
fostering care and patronage.' And the government accepted the
grant, accepted as it was tendered, and necessarily for the purpose
it was tendered."
The right to resort to extrinsic evidence, against the
contention of the territory, was decided, but the amount of aid
that the correspondence needed or received from such evidence we
explicitly pointed out. We said that the "justness" of the
conclusion expressed in the paragraph quoted above was, without
extrinsic evidence, "almost indisputable," and that it became
"indisputable if extrinsic evidence be considered." In other words,
it was decided that the probative force of the correspondence was
sufficient, without other evidence, to establish the agreement in
accordance with the contention of appellants. The supreme court of
the territory underestimated this ruling, and entered into an
extensive inquiry of circumstances, from which it decided the
agreement to be what this Court had decided it not to be.
It may be that we could rest the case on the prior decision
without considering the new evidence which was received, or,
rather, the new facts which are expressed in the findings of the
supreme court. But as that learned court based its decision upon
them, and the territory earnestly urges them as taking this appeal
out of the ruling on the former appeal, we have given consideration
to them. We cannot, however, without extending this opinion to a
great length, quote them in full, and will therefore only state
their character and what they establish or tend to establish.
The findings set forth the circumstances which preceded
Page 215 U. S. 563
the transfer to the government, as exhibited in the observations
of Commodore Wilkes in 1841, and the report of the principal of the
school in 1848. Commodore Wilkes observed a defective and
inefficient administration of the affairs of the school and its
funds, which might have been "avoided" by a full examination of the
subject by "practical men," and a decadence in consequence from its
"meridian." The principal report personified the school and made it
conscious of the loss of admiration, but he said "she stands at her
post and is contended to do good in a more humble way than
when the friends and lovers of her youth stood by and praised her."
He said that, during 1849, "studies at the institution were
practically broken up by reason of various sicknesses which
attacked the principal's family," and that, in consequence, "school
operations were suspended in February, and no new class entered
pending the action of the general meeting of the mission," and he
"thought it best" to await that meeting, for, as he said,
"the late unparalleled diminution of the population may also
have some effect in modifying the views of the mission in regard to
this school, and render it expedient in their minds to alter its
operations or the number of its scholars."
If a new class was to be called, he said, he had "a few
considerations to present to the brethren to guide them in their
selections." And again:
"Many thousands of dollars have been wasted or unprofitably laid
out upon young men sent there of only middling ability and low
morals. It has been with regret that the teachers have had to
select, with a few good ones, many young men of doubtful talents
and worth to make up a class, when they felt there were enough in
the nation that would do honor to their training at the
seminary."
"Besides these conditions," the findings of the court
recite,
"and the emigration to the gold fields of California, the
general meeting had to face an embarrassing condition of the funds
of the home board and the consequent curtailment of the allowance
to the mission. (From the report of the committee,
Page 215 U. S. 564
April 25, 1849.) It was under these circumstances that the offer
of transfer to the Hawaiian government was made."
It may be well to comment on the facts as we go along, and we
may say we see nothing in these declarations and reports that
militates with the views of the agreement expressed in our former
opinion. We see no intention in them or reason for abandoning the
purpose for which the school was founded. Indeed, intention and
reason for its better fulfillment by a transfer to the government.
The school would receive more constant support under the
government. The young men of "doubtful ability and low morals"
might not seek its instruction, could be more easily rejected if
they did so, and those "in the nation that would do honor to their
training at the seminary" might be attracted by the sanction which
would be given to their ability and morals. That this was the hope
which induced the transfer is almost expressed in the
correspondence which forms the agreement.
This was in effect declared in the opinion on the first appeal,
and the quotation from that becomes apposite. Stating a part of the
correspondence which contained the offer to the government, we said
(206 U.S. p.
206 U. S.
220):
"The mission reminds the minister of public instruction that the
seminary was established in 1831, 'to promote the diffusion of
enlightened literature and Christianity throughout the islands,'
and that it had been unceasingly watched over, cherished, and cared
for by the mission, and that $77,000 had been expended for its
benefit. It was stated that, in consequence of the debts incurred
'in the prosecution of its labors of benevolence and mercy,' the
American Board of Commissioners of Foreign Missions was compelled
to diminish its grants to each of the missions under its care,
including the Hawaiian mission, and that the latter, for that
reason, would be 'unable to carry forward its operations with the
vigor to be desired in all of its departments of labor.' In view of
these facts, it was stated and believed that, under the
circumstances, the transfer of the institution 'to the fostering
care and patronage of the
Page 215 U. S. 565
government' would 'promote the highest interest of the Hawaiian
people.' An offer was then made to transfer the seminary, with the
conditions which we have referred to. A confession of faith was
enclosed. The government modified the proposal by reserving the
right to pay $15,000, as an alternative to the reversion of the
property to the mission if the government should not fulfill the
conditions of the grant. The modification was accepted, and in a
subsequent communication a new confession of faith was substituted
for that originally proposed."
And from this it followed, we further said, as we have seen,
that the school was established "
to perpetuate the Christian
religion,'" and had purpose, still more definite and of equal or
greater importance; that "`to educate young men to be Christian
ministers.'" And this "the government was informed of when the
proposition was made to transfer the school to its `fostering care
and patronage.'"
There are, however, other findings of fact. It is found that
there was substituted for the first confession of faith, which was
printed, a second confession of faith, which was written. In a
letter which accompanied the latter, it stated that the first was
"not so distinctive as to present a barrier to the introduction
there (in the school) of other and deleterious doctrines not
specified in the said confession." It is said by the supreme court
of the territory that it was "worthy of note" that it did not
appear that the "prudential committee" had been advised of the
substitution. We think this unimportant. Even if it did not
therefore become a part of the agreement, it certainly expressed
the purpose of the agreement. It was, however, considered by the
parties as a part of the agreement.
The curriculum of the school from 1835 to 1863 is inserted in
the findings, by which studies were arranged for a course of four
years. This appears:
"The laws of the high school were read, amended, and the
different articles adopted as follows:"
" Whereas in the good providences of God, the experiment
Page 215 U. S. 566
of the high school established by the mission in 1831 having
proved successful, and having accomplished all that could
reasonably have been expected, and the necessity of such an
institution still continuing, the directors now lay before the
mission a more definite and enlarged plan of operations, such as
they suppose from actual experiment to be practicable, and of the
highest interests to the moral, social, literary, and spiritual
condition of this people."
The design of the high school is set forth in six chapters,
which express provisions for teaching general literature and the
sciences, and the following, being paragraphs one and four and
paragraph five of chapter three:
"To aid the mission in accomplishing the great work for which
they were sent hither, that is, to introduce and perpetuate the
religion of out Lord and Saviour, Jesus Christ, with all its
accompanying blessings, civil, literary, and religious."
"4. Another object still more definite and of equal or greater
importance, is to educate young men of piety and promising talents,
with a view to their becoming assistant teachers of religion or
fellow laborers with us in disseminating the gospel of Jesus Christ
to their dying fellowmen."
"5. He shall also watch over the moral and spiritual interests
of the scholars; he shall cause a portion of their weekly studies
to be directed to the great truths of the Bible, that, while they
increase in science and literature, they may have the means of that
knowledge which makes wise unto salvation."
It is found, however, that
"so far as the proposed curriculum contemplated the preparation
of graduates of the school for immediate service in the ministry,
it was never carried out, though frequently referred to by
contemporaneous writers as the eventual design of the school."
It is further found that the main object of the school from 1835
to 1839 was the education of Hawaiian teachers for the common
schools. The curriculums of other years are given, and it is found
that, after the transfer to the government, the
Page 215 U. S. 567
institution continued to be primarily for the education of
teachers (Report Minister Public Instruction, 1850, p. 26; Report
President Board of Education, 1872, p. 4), from the middle classes
of the Hawaiian people (Report President Board of Education, 1886,
p. 3). Education for the ministry is not referred to in any
official report as one of the purposes of the school, but the most
that could be said is the statement by Rufus Anderson, secretary of
the A.B.C.F.M.: "A year spent in theological study with a
missionary is thought sufficient to prepare a pious graduate of
Lahainaluna for the pastoral office." Anderson, Hawaiian Islands,
p. 189.
And there are findings as to the events of 1863, 1864, and 1865,
the principal of which was the opinion of the Attorney General, and
a dispute between the mission and the Board of Education as to the
right of appointment of teachers.
The opinion of the Attorney General recognized that the school
was received by the government and was held by it, under conditions
which, if not performed, would require the government to reconvey
the property or pay the mission fifteen thousand dollars.
The dispute over the appointment of teachers arose in April,
1865. In a letter to the president of the Board of Education, the
mission asserted the right to appoint, and suggested the names of
certain persons. The Board of Education replied, asking for the
grounds "on which any such claim to interfere in the internal
management of said school appear to you to be founded." The mission
replied, asserting the right of appointment as a means of
accomplishing the purpose of the transfer. It was said that nothing
was
"more evident than that the mission intended carefully to guard
against the introduction into the institution of any doctrine,
practice, or influence antagonistic to its own faith and practice
and form of Christian worship."
And they asserted further that
"nothing could be clearer than that the missionaries
contemplated still to have this a cooperating institution to aid
them, as it had already done in times past, in the diffusion of
Page 215 U. S. 568
solid science and Christianity
as they understood it,
as benevolent Congregationalists and Presbyterians of the United
States, who had contributed to build and sustain the institution,
understood and practiced it."
And it was said that
"an object so dear to them would not have been given up without
the intention of so guarding in the future as to have it continue
to aid instead of defeat the purpose for which it was founded."
In further emphasis of this intention the writer of the letter
said that he knew "that the intention was to secure the continued
cooperation of the seminary in the work which the American Board
was prosecuting" there "through its mission." The Board of
Education admitted that the institution was to be continued so as
to "aid instead of defeating the purpose for which it was founded,"
and said "nothing had been done to justify the intimation that the
board" had "any desire to defeat such purpose, or introduce any
doctrine, practice, or influence antagonistic to the faith,
practice, and forms of worship of the founders." The board
dissented from the view expressed by the mission, that the
appointment of any man not acceptable to it to the post of teacher
was a "violation of the whole spirit of the agreement," and said
that a full compliance with the agreement consisted "in appointing
persons teaching in the doctrine and after the manner of the
Congregational and Presbyterian churches of the United States." The
board concluded by saying that they were aware that, if they did
not see fit to carry on the institution according to the terms of
the contract they had to reconvey it or to pay the sum of $15,000,
and that, if the views expressed were not satisfactory, the board
would think favorably of a proposition to reconvey it at once.
It will be seen, therefore, that from the agreement, as gathered
from the correspondence and from the extrinsic evidence which we
have detailed, there can be no doubt that the school was
transferred by the mission and accepted by the government upon the
condition that definite Christian doctrines should be taught;
namely, doctrines which constituted
Page 215 U. S. 569
the belief of the Congregational and Presbyterian churches of
the United States, and not merely some form of general, evangelical
Christianity.
Religious instruction, "represented by the second or substituted
confession of faith," according to finding 23, was continued from
1865 to 1877.
In December, 1876, upon the recommendation of Dr. Bishop, a
change was made from the Hawaiian to English as a medium of
instruction, comment upon which will be presently made. We omit, as
not important, the curriculum as to secular studies after 1877. The
findings as to religious instruction must, however, be given in
full:
"There is no evidence that the substituted confession of faith
was in use at Lahainaluna as a creed, doctrine, or standard of
religious instruction at any period. There is no evidence of any
formal creed as a standard to which the pupils were required or
instructed to adhere."
"(29) From 1877 until the present date, the course of religious
instruction has been substantially the same. This includes morning
prayer, including occasional discussions of passages of the
scripture, compulsory attendance at Sunday school, with preparation
of the international Sunday school lessons furnished by the
Hawaiian board itself, and compulsory attendance at Christian
Endeavor exercises Sunday evenings at which the pupils discuss
biblical subjects based on the Christian Endeavor topic as given in
the Christian Endeavor World. Nothing in this religious teaching is
contrary to any religious tenet or doctrine expressed in the
substituted confession of faith. Mr. Macdonald, who had been
principal since 1903, testifies that no creed had been taught
during that time at the school, but that he had tried to make
upright, truthful Christian men, and held Christ up as the best
example to follow; that he had taught nothing about the Pope, or
the doctrine of the trinity, or the doctrine of Adam's fall, or
that the descendants of Adam were without holiness and alienated
from God until their hearts were renewed with divine grace; that
on
Page 215 U. S. 570
Sunday there was a Sunday school and occasionally, in the
morning, a service, in the evening a Christian Endeavor meeting;
that the first year he was in Lahainaluna, the boys were allowed to
go to Lahaina to their own churches, but since then, with the
exception of the day scholars, numbering ten or twelve, they were
required to stay on the ground on Sunday and attend Sunday school
and the evening exercises; that the chapel exercises on weekday
mornings lasted about ten minutes and consisted of a hymn, a
portion of the scripture, and a repeating of the Lord's Prayer in
unison, and occasionally incidental remarks by the principal
regarding the passage of the scripture; that there was no direct
Christian instruction given in the classroom exercises during the
weekdays other than moral instruction, as teaching the boys to do
their work honestly; that the Sunday morning exercises consisted of
a regular system of bible instruction following the international
Sunday school lesson series purchased from the Hawaiian Board; that
the Sunday school lessons were assigned in advance; that in the
Christian Endeavor meetings the Christian Endeavor topic in a
modified form as given in the Christian Endeavor World was usually
taken, and prayers sometimes offered by the boys and the
teachers."
"(30) There is no evidence of any protest with regard to
Lahainaluna or the course of study there from the American Board or
from the Hawaiian Evangelical Association as bodies, but first
objection is from the plaintiffs who are trustees of certain
property rights under deed from the American Board."
It is further found that
"technical and agricultural training have been prominent
features of the school for over half of a century, and the emphasis
laid on agricultural work in the past few years does not amount to
a change in kind, but one in degree. There has been no change in
the official designation of the school."
In 1903, there was a movement to obtain the federal aid
available for agricultural colleges, in connection with which the
Deputy Attorney General gave an opinion as to the
Page 215 U. S. 571
character of the school, the conditions upon which the
government of Hawaii had received it, and the effect of the
provisions of the organic act of the territory, that no "public
money be appropriated for the support or benefit of any sectarian,
denominational, or private school." The opinion is quoted at length
in the findings, but we are only concerned with parts of it. It
recognizes that the school was received upon the condition of
cultivating sound literature and solid science. This, it was said,
was affirmative, and could not be escaped. The provision for
religious instruction, he declared, was negative, and was satisfied
by no religious teaching whatever. His conclusion was, and we quote
his words:
"So long as the government maintains this school, it shall not
teach any doctrine contrary to the confession of faith, but it is
not compelled to teach any religious doctrine whatever, and
therefore, in my opinion, cannot be held to be a sectarian
institution."
And further, "that the school is not a sectarian institution
under the prohibition stated in section 55 of the organic act."
As we have said, the supreme court of the territory gave
especial prominence to the ruling on extrinsic evidence, and made
it contradictory to the agreement as expressed in the
correspondence. This result was worked out, as it seems to us, by
giving too much effect to the curriculum of the school after 1877.
That, indeed, might be considered as tending to show that the
agreement had been abandoned or its conditions waived, but not that
it did not exist. To this proposition of abandonment or waiver we
then will address ourselves, and, as relevant to it, the views of
the supreme court of the territory may be given. They are exhibited
in the following paragraphs:
"Under the decision of the United States Supreme Court, we are
to construe the condition of transfer in the light of the
circumstances which preceded it and the immediate and long
continued practice under it. Confining ourselves for the present to
the condition respecting religious instruction, reading, "
Page 215 U. S. 572
"it shall not teach or allow to be taught any religious tenet or
doctrine contrary to those heretofore inculcated by the mission
which we represent, a summary of which will be found in the
confession of faith herewith enclosed,"
"the following possible constructions of the language may be
considered."
"(1) That the condition is purely negative in character, and
does not require the teaching of any religious doctrine. This
construction is precluded by the decision of the United States
Supreme Court."
"(2) That the contents of the confession of faith should be
taught as a formal doctrine or creed. There is no evidence that the
parties ever acted upon this interpretation. No evidence has been
presented that the substituted confession of faith was in use at
Lahainaluna as a creed, doctrine, or standard of religious
instruction at any period. Dr. Bishop, who was in the school from
1865 until 1877, testified that he had never seen it. (Transcript,
p. 13.) In fact, there is no evidence of any formal creed as a
standard to which the pupils were required or instructed to
adhere."
"(3) That religion should be taught, and that, as taught, it
should not be contrary to the doctrines mentioned. Thus construed,
it is obvious that it allows considerable latitude in the amount of
religious instruction. If it means that theology shall form part of
the curriculum of the school, the condition was broken as early as
1877, and any action thereon is long since barred by the statute of
limitations applicable to claims against the government. Rev.Laws,
ยง 2004;
Hartman v. United States, 35 Ct.Cl. 106. If,
however, the acts and statements of the parties in 1865 are to be
relied upon as contemporaneous construction, the same must be true
of the acts of the parties in 1877, and from thence to the present
day. The fact that the change from Hawaiian to English as a medium
of instruction necessarily involved the discontinuance of abstract
studies of a theological nature is obvious. The fact that this
change was made upon the recommendation of Dr. Bishop and with the
full acquiescence of all concerned
Page 215 U. S. 573
from 1877 until 1903 is surely as potent as the actions of the
parties during the preceding years. To the present day, there has
been no protest from the American Board or from the Hawaiian
Evangelical Association as bodies, but the first objection is from
the plaintiffs, who are trustees of certain property rights under
deed from the American Board, the terms of which will be more fully
considered later."
"Unless the condition prescribes the amount and extent of
religious instruction, it has not been broken. From 1877 until the
present date, the course of religious instruction has been
substantially the same."
The first proposition, the court said, was precluded by our
first decision; of the other two, the court felt free to exercise
its judgment. In this it committed error. We have shown how
antagonistic the contentions of the parties were, and we tried to
be clear in our decision of them. We did more than decide that the
condition as to religion was not negative. We gave it more force
than simple inhibition of teaching something which was not
inconsistent with the religion of the mission. We gave it the force
of a requirement to teach that religion, and more, to educate young
men to teach it. The supreme court, however, says that there is no
evidence that the parties ever acted upon the interpretation "that
the contents of the confession of faith should be taught as a
formal doctrine or creed." Exactly what is meant by the words
"formal doctrine or creed" is not clear, but if they mean the
religion of the mission, the conclusion was not open to the court
to draw, nor do the findings sustain it. Dr. Bishop testified, it
is true, that he had never seen the confession of faith until it
was shown in the present case, but he also testified that "the
system of doctrine which was taught was substantially the old
orthodox Congregational or Presbyterian doctrine." As to the
confession of faith, he said, "that it very well represented the
form of doctrine taught at Lahainaluna." Nor do we draw the same
conclusion from the change from Hawaiian to English as a medium of
instruction that the
Page 215 U. S. 574
supreme court drew. Dr. Bishop did recommend the change and he
expressed a fear that the consequences might be an omission of
studies of an abstract nature, in which he included "evidences of
Christianity;" but he suggested such instruction could be committed
to the "exceptionably" able Hawaiian teacher whom he mentioned. But
there is nothing in that to show that a definite form of religion
could not be taught. There might be difficulty in it, of course,
but that such a difficulty could not be overcome would take all
purpose or justification from missionary societies. Besides,
because the school met difficulties, might have to yield
temporarily to them for varying periods of time, cannot be
considered as conclusive of the intention of the parties to abandon
the purpose expressed in the agreement or to waive its obligations.
And this is an answer to the other contentions of the territory.
That the mission would encounter difficulties in its way was no
doubt guessed when the school was founded. It was demonstrated by
trial. For the better execution of the purpose of its foundation,
the mission transferred it to the government. The government, too,
met difficulties. Its duty was to strive against them, overcome
them if possible, not to make them a reason to violate its
contract. But it is said by the supreme court that, if the
condition be
"that theology shall form part of the curriculum of the school,
the condition was broken as early as 1877, and any action thereon
is long since barred by the statute of limitations applicable to
claims against the government."
This might be if the obligation of the government had been to
pay money simply. Its obligation was not that, as we have seen, but
to perform a trust expressly assumed by it. In other words, it was
the grantee of an estate upon condition, having the right, however,
to elect to pay $15,000 as an alternative of the performance of the
condition. We find no evidence of such election in what occurred in
1877, nor indeed long subsequently to that date. The circumstances
must be kept in mind and the relation of the parties. The
government had received a gift of valuable property, the
Page 215 U. S. 575
product of voluntary contributions. It was given and received
for a special purpose -- the purpose for which the contributions
were made. The government accepted it and pledged its faith for the
execution of the purpose -- a faith, we may assume, which was as
much relied on as the sanctions which accompanied it. It is not
possible to believe that the government had so little sense of its
obligations that, if it had intended to depart from its agreement,
it would not have offered to reconvey the property or tender the
execution of the alternative which it had reserved, and we
certainly cannot hold that a mere change in the course of studies,
which might have temporary excuse, instantly acted to make the
grantors of the property claimants for money, against whom the
statute of limitations would immediately begin to run. The
government's right should not be overlooked in this connection. The
following is the condition expressed in the proposal made to the
government:
"That in case of the nonfulfillment or violation of the
conditions upon which this transfer is made by the said government,
the whole property hereby transferred, hereinbefore specified,
together with any additions or improvements which may have been
made upon the premises, and all the rights and privileges hereby
conveyed or transferred to the Hawaiian government, by the said
island mission, shall revert to the said mission, to have and to
hold the same for and in behalf of the American Board of
Commissioners of Foreign Missions."
The acceptance of the government was as follows:
"That, in case of nonfulfillment on the part of the government
of the conditions specified, it shall be optional with this
government to allow the institution, with all additions and
improvements which may have been made upon the premises, and all
rights and privileges connected therewith, to revert to the said
mission, or pay the sum of $15,000."
The onus, therefore, was upon the government to act, not upon
the mission. To avert the reversion of the property to the mission,
a way was provided, but it did not enter into the head of anybody
that, by a
Page 215 U. S. 576
failure to adopt it instantly upon a change of studies, the
property passed back to the grantor. But such was the inevitable
result if there was a breach of the conditions in 1877, and such
was the result if there was a breach later than 1877. It might be
contended that such result would not ensue without some action upon
the part of the mission. But it was certainly optional with the
mission to treat the breach, if there was a breach, as a
forfeiture. It is said in
Hubbard v. Hubbard, 97 Mass.
188, that it is optional with the grantor of an estate upon
condition, in case the breach of the condition occurs, whether he
will avail himself of the same as a forfeiture of the estate. To do
so, it is further said, requires action on his part, and, if he is
not in possession, usually requires entry for breach of condition.
Until such entry, the grantee holds his estate liable only to be
defeated, but it is not actually determined by the forfeiture.
It is said in
Carbon Block Coal Co. v. Murphy, 101 Ind.
115, 117-118:
"A condition may be waived by one who has a right to enforce it
. . . , but a mere silent acquiescence in, or parol assent to, an
act which has constituted a breach of an express condition in a
deed would not amount to a waiver of a right of forfeiture for such
breach."
"
Lindsey v. Lindsey, 45 Ind. 552, 567; 2 Washb. Real
Prop. 16. A mere indulgence is never construed into a waiver of a
breach of a condition.
Gray v. Blanchard, 8 Pick. 284;
Jackson v. Crysler, 1 Johns. Cases 125."
In
Trustees of Union College v. City of New York, 173
N.Y. 38, a deed conveying land to Long Island City for the purpose
of building a city hall contained the provision that, if the land
should cease to be used for such or other similar buildings, the
land should revert to the grantor as if the conveyance had not been
made, was held to be a condition subsequent, and required the
grantee to comply therewith within a reasonable time. It was
further held that ten years was a reasonable time for compliance
with the covenant, and that the fact that the grantor did not
assert a right to reenter for fifteen
Page 215 U. S. 577
years after the breach did not operate as an estoppel, or
preclude him from insisting upon a forfeiture and claiming
possession. It was also held that a grantor was not compelled to
demand performance before bringing action of ejectment. The court
said:
"The condition was the use and the continuing use of the land
for the purpose of the grant. The long continued silence of the
plaintiff could not operate as an estoppel upon or preclude it from
insisting upon a forfeiture and from claiming possession of the
premises. The effect of an express condition in a deed cannot be
destroyed by silent acquiescence.
Jackson v. Crysler, 1
Johns. Cases 125. The title to the property was vested in the
grantee, and the plaintiff was entitled to assume that its grantee
would comply with the condition of the grant. If it elected to
await compliance as long as it did, that fact cannot be construed
against its right to reclaim possession."
In
Coleman v. Whitney, 62 Vt. 123, a mortgage deed was
executed by a husband, the condition of which was a promise to
support the wife of the grantor during her life. The condition was
performed for a time and then violated. The wife brought suit to
obtain a maintenance from the mortgaged premises. It was held that
she was entitled to such relief notwithstanding there had been
successive conveyances of the property, and the successive owners
had occupied the premises under their deeds, and had in no way
recognized her rights, and it was held further that the obligation
to support the wife was a continuing one, and that "the lapse of
fifteen years without receiving support, simply because she did not
ask it, would be no bar."
It was said in
Oliver v.
Piatt, 3 How. 333,
44 U. S. 411,
that the mere lapse of time constitutes of itself no bar to the
enforcement of a subsisting trust, and time begins to run against a
trust only from the time when it is openly disavowed by the
trustee, who insists upon an adverse right and interest, which is
fully and unequivocally made known to the
cestui que
trust.
Page 215 U. S. 578
In
Tynan v. Warren, 53 N.J.Eq. 313, 321, Vice
Chancellor Green, speaking for the court, said:
"I do not understand that mere delay in bringing a suit will
deprive a party of his remedy, unless such neglect has so
prejudiced the other party by loss of testimony or means of proof
or changed relations that it would be unjust to now permit him to
exercise his right."
It is certain that none of those conditions appear in the
present case. A mere change of the curriculum was not, of itself,
an unequivocal disavowal of the trust or an assertion of adverse
right or interest in the government, and we find nothing in the
record tantamount to such disavowal and assertion until the
governor of the territory and the superintendent of public
instruction refused the demand of the plaintiffs' attorney to
either pay the $15,000 or reconvey the property. The grounds of
their refusal we are not informed of, but it was a disavowal of the
trust and a denial of the alternative obligation to pay the money.
The right of election in the territory then passed to the
plaintiffs, appellants here, and the bringing of the action was a
sufficient exercise of it.
It is finally contended that the appellants cannot maintain this
action. The supreme court of the territory sustained this
contention, saying, however, that it based its "decision upon the
consideration of the substantial rights involved." The right of the
plaintiffs is derived from a deed executed July 25, 1903, by the
American Board of Commissioners for Foreign Missions to the
plaintiffs as "trustees." It recites that the grantor is desirous
of contributing to the support and maintenance of the Board of
Hawaiian Evangelical Association, an eleemosynary corporation
organized and established
"in the great work of propagating Protestant Christianity, and
for that purpose the land and property particularly described and
referred to in trust, in order to assist said intended beneficiary
to effectually carry out its corporate powers and purposes in said
Hawaiian Islands."
The instrument revokes and annuls all powers of attorney and
grants of authority theretofore given to any person or persons
Page 215 U. S. 579
whomsoever, and gives, grants, bargains and sells, conveys and
confirms, unto F. J. Lowrey, Henry Waterhous, and William O. Smith,
certain lands described in the schedule annexed to the instrument,
together with
"all other lands in the possession of or belonging to the said
grantor, or to which said grantor has right, title, interest,
claim, or demand whatsoever at law or in equity, and whether held
by it in fee simple, as lessee thereof, beneficiary therein, or
otherwise, as fully and to all intent and purpose as though a
particular description thereof was herein incorporated and included
in said schedule . . . ,"
to have and to hold the same
"in trust, nevertheless for the following uses and purposes,
that is to say: First. To hold, manage, and control the same, and
receive and take the rents, issues, profits, income, and proceeds
of sales and authorized mortgages thereof, and hold such increment
and realizations under the same trusts as the above granted trust
property, using and applying the same, however, in the manner
hereinafter provided. . . . Sixth. And generally to do and perform
every act and thing, and exercise every power and authority
whatsoever, not herein specifically denied or withheld from or
herein directed to be otherwise done or exercised by said trustees,
as fully and to every intent and purpose as though the said
trustees were the absolute owners in fee in their own personal
right of the property hereby conveyed. Seventh. Any and all moneys
arising from or out of the property of the trust estate, whether by
way of rents or other issues and income, or from sales or mortgages
thereof, shall be received and held by said trustees;"
and, after the payment of taxes and other expenses, "and until
otherwise directed" by the grantor, shall be delivered
"to said beneficiary, from time to time, any balance or portion
of the moneys, then remaining in their hands over and above what
may, in their judgment, be required for the current expenses
connected with the said trust, any unapplied balance to be placed
on general deposit, or the said trustees may invest the same upon
security, as they may approve. "
Page 215 U. S. 580
And the grantor reserved "the full right and authority at any
time or times, to direct any change or alteration in the
disposition of the income and proceeds of the trust estate," or to
remove any trustee or fill any vacancy however occurring.
It will be observed, therefore, that the instrument was designed
to convey every interest in property that the grantor had.
Considering its language and careful provisions, its purposes, and
the control reserved to the grantor of the trust and the
disposition of funds, it would be a narrow construction of it to
hold that the interest of the grantor in the Lahainaluna school did
not pass by it, whether such interest was a right to receive a
conveyance of the school or of the $15,000 which was to be in lieu
of such conveyance. In other words, to completely enforce the
rights and interests of the mission in the school, and devote it or
the proceeds from it to the purposes of the trusts which were
created.
The judgment is reversed and the cause is remanded with
directions to enter judgment for appellants as prayed for.
MR. JUSTICE BREWER took no part in the decision.