Corporation Sole Statutes: Florida

Corporation Sole Statutes

Florida Corporation Sole Statute

The Florida Supreme Court has recognized the corporation sole under the common law. See Reid v. Barry, 112 So. 846, 887 (Fla. 1927); Willard v. Barry, 152 So. 411, 413 (Fla. 1933).  In Reid, the Florida Supreme Court, after acknowledging that Florida had adopted by statute the common and statute laws of England so far as the same were not inconsistent with the federal or state constitution or statutes, observed that the “common-law corporation sole is, under our statute adopting the common law, the law in Florida to-day, seldom as it may be called into operation, there can be no doubt . . . .”  See Reid, 112 So. at 997.  See also Terrett v. Taylor, 13 U.S. (9 Cranch) 43 (1815) and Ponce v. Roman Catholic Apostolic Church, 210 U.S. 296 (1908).

 

93 Fla. 849

Supreme Court of Florida, Division A.

REID et al.

v.

BARRY.

April 14, 1927.

Suit by Patrick Barry, Bishop of St. Augustine, against Robert R. Reid and others to remove clouds from title. From an order overruling the defendants’ demurrer to the complainant’s bill, defendants appeal.

Affirmed.

See, also, 90 Fla. 772, 107 So. 264.

Syllabus by the Court

Common-law rule that use of ‘heirs’ was ordinarily indispensable to conveyance of estate of inheritance formerly prevailed; certain exceptions to common-law rule that use of ‘heirs’ was necessary to convey estate of inheritance were recognized, such as deeds to state, to corporations, or trust deeds (Rev. Gen. St. 1920, §§ 71, 3796). Prior to the enactment of chapter 5145, Laws of 1903, now section 3796, Rev. Gen. Stats., the common-law rule that the use of the word ‘heirs’ was ordinarily indispensable to the conveyance of an estate of inheritance prevailed in this state; certain exceptions, however, being recognized, such as deeds to the state, or to corporation, trust deeds, etc.

Statute providing conveyance without reference to ‘heirs’ or ‘successors’ should pass fee simple or grantor’s whole estate, unless contrary appeared, was prospective only until 1925 amendment (Rev. Gen. St. 1920, § 3796; Laws 1925, c. 10170). The act of 1903, now appearing as section 8796, Rev. Gen. Stats., providing that, regardless of the exclusion of such words as ‘heirs’ or ‘successors,’ a conveyance would be construed to pass the fee simple or other whole estate of the grantor unless a contrary intention shall appear in the instrument, was prospective only in its operation; but by an amendatory act, chapter 10170, Laws of 1925, it was made applicable also to prior grants and conveyances. Whether the statute as amended could constitutionally be given a retrospective operation, so as to apply to the deed here in question, made in 1881, held unnecessary to the decision of this case.

Tendency of modern statutes and decisions has been to depart from arbitrary common-law rules and to consider language of instrument to determine grantor’s intent (Rev. Gen. St. 1920, § 3796; Laws 1925, c. 10170). The tendency of modern statutes and decisions, of which our statutes above referred to are instances, has been to depart from some of the arbitrary common-law rules formerly obtaining as to the construction of deeds, and to consider the language of the entire instrument in order to determine the intent of the grantor, both as to the character of estate and the property conveyed and to so construe the instrument as if legally possible to effectuate such intent.

Generally under deed creating express trust, trustees take legal title, and equitable estate vests in cestui que trust without regard to words of limitation. The general rule is that under a deed creating an express trust the trustees take such legal title as is necessary to or commensurate with the duties of the trust, and the equitable estate vested in the cestui que trust, without regard to the words of limitation used.

Demurrer to whole hill admits truth of allegations of fact well pleaded and conclusions necessarily resulting therefrom; every presumption is against bill on demurrer. While, upon a demurrer to the whole bill, such demurrer operates as an admission of the truth of all the allegations of fact well pleaded. as well as the conclusions necessarily resulting from such facts, yet, in passing upon such demurrer, every presumption is against the bill; the pleading being construed most strongly against the pleader.

Statutes requiring trusts in lands to be in writing apply to express trusts, but not to resulting or constructive trusts; to prove express trusts, writing creating them must show donor or grantor, trustee, beneficiary, property conveyed, and must be executed by party creating or declaring trust in statutory manner (Rev. Gen. St. 1920, §§ 3791, 3792). Sections 3791 and 3792, requiring trusts in lands to be manifested and proved by some writing and prescribing how such writing shall be executed, do not apply to resulting or constructive trusts. But as to express trusts, they do apply, and under such statutes, in order for express trusts to be proved for judicial enforcement, such writing must manifest the essential elements of a trust-among which are the donor or grantor, the trustee, the beneficiary, and the property conveyed for the purpose of the trust-and must be executed by the party creating or declaring the trust in the manner the statute provides.

Where both legal estate and beneficial enjoyment are vested in same party, no trust results; absolute control and power of disposition are inconsistent with idea of trust; trustee and beneficiary must be distinct persons or entities; merger of legal estate and beneficial enjoyment in same person or entity effects legal estate in such party of same duration as beneficial interest designed. No trust results where both the legal estate and the beneficial enjoyment are vested in the same party. Absolute control and power of disposition are inconsistent with the idea of a trust. The trustee and beneficiary must be distinct personalities or entitles, and the merger of both interests in the same person or entity would effect a legal estate in such party of the same duration as the beneficial interest designed.

Cestui que trust expressly named, or so designated or described that he can be identified, must be found in trust instrument. There must be found, within the four corners of written instruments declaring an express trust, a cestui que trust, who must either be expressly named or so designated or described that he can be identified.

If trust deed purporting to convey grantor’s entire estate in fee based on valuable consideration, containing covenants of seisin, warranty, and quiet enjoyment, fails sufficiently to declare trust, generally grantee paying consideration takes beneficial interest. If a deed intended as a trust deed is made for a valuable consideration, containing covenants of seisin, warranty, and quiet enjoyment, and purports to convey the entire estate of the grantor in fee, the grantee paying the consideration for the estate will, as a general rule, take the beneficial interest if the trust fails to be sufficiently declared, or fails in any way; the instrument being conclusive between the parties and their privies, and excluding the idea of any resulting trust to the grantor.

Express trusts in realty cannot be proved by parol or enforced against one denying their existence; parol evidence will not be heard to ingraft trust on conveyance absolute in terms; statutes requiring trust of lands to be in writing held to go to enforceable existence of trust rather than to constitute rule of evidence (Rev. Gen. St. 1920, §§ 3791, 3792). Under our statutes, express trusts in realty cannot be proved by parol or enforced against a party who denies the existence of such a trust; nor will parol evidence be heard to ingraft an express trust upon a conveyance absolute in terms. Our statutes construed together constitute something more than a mere rule of evidence, and as to such cases as come within their letter and spirit, they in effect go to the enforceable existence of the trust itself.

If trust deed is unambiguous, donor’s or grantor’s intention must be collected therefrom; if trust deed’s language is ambiguous, evidence of surrounding facts and circumstances is admissible to explain and determine meaning and intent of terms (Rev. Gen. St. 1920, §§ 3791, 3792). Where the language of a trust deed is free from ambiguity, the donor’s or grantor’s intention must be collected from the words used by him. But, in keeping with the familiar parol evidence rule applicable to the construction of ordinary deeds, where the language is ambiguous, the courts will in proper cases admit evidence of the surrounding facts and circumstances, not to contradict, but to explain and determine, the meaning and intent of the terms employed by the donor or grantor.

Deed to bishop, and his successors and assigns, containing covenants of seisin, quiet enjoyment, and warranty, vested complete legal title in fee with full power of alienation in grantee and successors in office in official capacities; in deed to bishop, his successors and assigns, word ‘heirs’ was not required to convey fee simple (Rev. Gen. St. 1920, § 3796; Laws 1925, c. 10170). If the deed in this case had read merely to ‘Right Rev. John Moore, Bishop of St. Augustine,’ the words ‘Bishop of St. Augustine,’ not being preceded by the word ‘as,’ might have been merely descriptio personae; but the grantee in the deed is, ‘Right Rev. John Moore, Bishop of St. Augustine, Florida, of the County of St. Johns,’ ‘and his successors in office and assigns forever,’ and the deed contains full covenants of seisin, quiet enjoyment, and warranty. Held, that it was the plain purpose of this deed to vest the complete legal title in fee, with full power of alienation, in Bishop Moore, and his successors in office, in their official, as contradistinguished from their individual, capacities, respectively; and that, as the title was to pass, not to his heirs, but to his successors in office, the use of the word ‘heirs’ would have been as inappropriate and meaningless as in a deed to a corporation, hence the law did not require it.

Deed to bishop and his successors and assigns, not showing intention to create trust and not naming or designating beneficiary, held not to create express trust. Inasmuch as the deed to ‘Right Rev. John Moore, Bishop of St. Augustine,’ ‘and his successors in office and assigns,’ does not by its terms manifest and intention to create a trust, and no beneficiary is either named or so designated as that it can be identified, our holding is that the deed does not create or manifest an express trust.

Allegations or proof of canons and customs of church are not admissible to show absolute deed to bishop, and his successors and assigns, was intended as trust deed (Rev. Gen. St. 1920, §§ 3791, 3792). While, under the allegations of the bill, and the application of the maxim, ‘Id certum est quod certum reddi potest,’ we might construe this deed as if it had been expressly made to ‘Right Rev. John Moore, Bishop of the Diocese of St. Augustine, Florida, of the Roman Catholic Church, and his successors in office and assigns forever,’ and that therefore the grantee and his successors could only take, hold, and use the property rightfully in their official capacity, as bishops respectively of the diocese, so that the practical resulting effect of the instrument might be in the nature of a trust, yet, as the language of the instrument, which is not ambiguous, does not mention nor purport to create a trust, neither allegations nor proof of the canons and customs of the church can be received for the purpose of ingrafting upon this deed, which is absolute in its terms, an express trust for the benefit of such church.

Deed to bishop and his successors and assigns, even if it granted property only in grantee’s official capacity, did not create express trust, although city in which property was situated was located within bishop’s diocese (Rev. Gen. St. 1920, §§ 37918 3792). Even if it be conceded that the deed was made to Bishop Moore as Bishop of the Roman Catholic Diocese of St. Augustine, Fla., and his successors in office, and that therefore Bishop Moore and his successors could only take, hold, and use the property in their official capacity as bishops respectively of such diocese, and that the city of Orlando, in which the property conveyed was situated, was located within such diocese, this is not enough to create an express trust for the further reason that it cannot be said whether the trust, if any, was for the benefit of the church in Orlando, or throughout the diocese, or for the benefit of the schools or charities of the church, or for the benefit of the Roman Catholic Church in general.

Use of lands conveyed to bishop, and his successors and assigns, for church, school, and rectory purposes, cannot be considered to construe deed as creating trust (Rev. Gen. St. 1920, §§ 3791, 3792). In construing the deed referred to in the preceding headnotes, the subsequent use of the property for church, school, and rectory purposes by the Roman Catholic Church in Orlando cannot be looked to, to supply the omission of the deed to state the object or purpose of the trust, or to designate, so as to identify, the beneficiary thereof, in order to make the instrument itself manifest an express trust.

Deed to bishop, and his successors and assigns forever, held not ambiguous, making parol evidence showing trust admissible; deed to bishop, and his successors and assigns, held not trust deed in suit between heirs of original grantor and successor of grantee. There is no ambiguity on the face of the deed involved in this case which could properly be explained by parol, so as to make it an express trust. Whatever might be the rules applicable in case of a contest between the church and the bishop with regard to the property conveyed, in the light of the canons and customs of the church, as between the parties to this suit-the heirs of the original grantor and the incumbent successor in office of Bishop Moore-our conclusion is that this is not a trust deed.

Allegations of bill held not to show deed to bishop, his successors and assigns, constituted resulting or constructive trust; deed to bishop, his successors and assigns, not using precatory words, held not to create ‘implied trust.’ Under the allegations of the bill, the deed in question cannot be construed as constituting a resulting or constructive trust, nor does the language of the deed create an implied trust; no precatory words being used therein.

Deed absolute on face based on consideration to bishop, his successors and assigns in official capacity, held to convey fee-simple title with full power of alienation. The deed alleged in the bill was a deed absolute on its face, made by R. and wife in 1881, acknowledging the payment of a valuable consideration, to wit, $1,050, and conveying a certain lot in Orlando, Fla., to the then bishop of St. Augustine and his successors in office and assigns forever, in their official capacity; and, construing the granting and habendum clauses together, as well as the covenants, it shows that the title in fee simple with full power of alienation was intended to be conveyed, not to or for the benefit of the church, but to the then bishop and his successors in office and assigns, and that such was its legal effect.

Generally covenant of warranty cannot enlarge estate granted or pass by estoppel estate greater than that expressly conveyed; generally if granting and habendum clauses show intention to convey certain estate and deed contains covenant of warranty, grantor and his successors are estopped to deny deed’s effect. While the general rule is that a covenant of warranty cannot enlarge the estate granted or pass by estoppel a greater estate than that expressly conveyed, it is also generally held that where a deed shows by its granting and habendum clauses an actual intention to grant and convey a certain estate, and contains covenant of warranty, the grantor and those claiming under him are estopped from denying the effect of the deed as so intended.

Deeds are construed most strongly against grantor and most beneficially for grantee; deed is never void when its language may be applied to any lawful intent to make it good. It is a general principle running through the law pertaining to the construction of deeds that they are to be construed most strongly against the grantor and most beneficially for the party to whom they are made, and that a deed shall never be held void when its language may be applied, to any lawful intent, to make it good.

Bishop and successors in official capacity held to have capacity to take and hold in fee estate which corporation takes by deed to it, its successors and assigns. Aside from the question of estoppel, under the language of the deed in this case, Bishop Moore and his successors in their official capacity had the capacity to take and hold in fee, not in the technical sense of an estate of inheritance capable of descending to the heirs of Bishop Moore, or any of his successors, but a fee simple in the sense of the character of an estate which a corporation takes when a deed is made to it, its successors and assigns.

Construing deed to bishop, his successors and assigns, to convey fee simple, held not to conflict with Statute of Uses; construing deed to bishop, his successors and ‘asssigns,’ as granting fee simple, held not contrary to rule against perpetuities (Rev. Gen. St. 1920, § 3795). The above construction of the deed here in question is not in conflict with the Statute of Uses (section 3795, Rev. Gen. Stats.), as it does not provide that the grantee shall stand seized to the use of another, that is, to hold the legal title as a dry and passive trust for another who has the beneficial interest and estate. Nor is it contrary to the rule against perpetuities, the use of the word ‘assigns’ showing the intention along with other provisions, to vest a present estate with power of alienation.

Common-law doctrine that corporation sole can take and hold land remains in force in Florida (Rev. Gen. St. 1920, § 71). Florida having by statute adopted the common law, in so far as the same is not inconsistent with our Constitution and statutes, the common-law doctrine of the corporation sole, not having been expressly or impliedly repealed by our organic or statutory law, remains in force in this state.

**849 *855 Appeal from Circuit Court, Orange County; C. O. Andrews, judge.

Attorneys and Law Firms

Dowda & Canon and Hilburn & Merryday, all of Palatka, for appellants.

Massey, Warlow & Carpenter, of Orlando, for appellee.

The appellee, Patrick Barry, Bishop of St. Augustine, of the City of St. Augustine, State of Florida, filed a bill in the court below to remove as clouds any claims of the defendants, Robert R. Reid et al., as heirs, devisees, etc., of Robert R. Reid, Sr., deceased, against certain property in the city of Orlando, Fla. The defendants interposed demurrer, setting up that there was no equity in the bill, and that it affirmatively appeared from  *856 the allegations of the bill that the complainant had no title upon which the relief prayed might be predicated. This demurrer was overrruled by the circuit judge, whereupon the defendants took this appeal.

The pertinent portions of the bill are as follows:

‘That the Roman Catholic Church is and has been from time immemorial an unincorporated religious organization, and that for the purpose of carrying on its religious work the country has been divided into dioceses and a bishop appointed for each diocese from time to time, with charge over the territory contained within his respective diocese, over which he has charge of the churches belonging to the said religious organization; that the state of Florida, except a small piece of territory in West Florida which lies within the limits of the Diocese of Mobile, composes the diocese which is under the management and control of the Bishop of St. Augustine, and has been since territorial days. Your orator further shows unto your honor that it is and has been the custom of the said church since long before the year 1881, and up to the present time, to take the title to property it acquires, in Diocese of St. Augustine, in the name of the Bishop of St. Augustine for the time being, and his successors in office.

**850 ‘Your orator further shows unto your honor that where property is brought by or for the use of the church within the Diocese of St. Augustine, agreeable to such custom, the title is taken in the name of the bishop and his successors in office, for the use and benefit of the church and its members, in accordance with the custom of the church organization, with power to the bishop, whenever he sees fit, to sell and dispose of the same for the benefit of the said church organization.

‘And your orator further shows unto your honor that by deed dated May 20, 1881, one Robert R. Reid and Mary C. Reid, his wife, conveyed unto the Right Reverend John *857 Moore, Bishop of St. Augustine, Florida, and his successors in office and assigns forever, that certain tract of land situate in the city of Orlando, county of Orange and state of Florida, known as block 33 of Robert R. Reid’s addition to Orlando, which deed contained full covenants and general warranty of title, and that the said John Moore thereupon entered into possession of the said premises and erected a church, a rectory, and a schoolhouse, and that the said John Moore and his successors as Bishops of St. Augustine have been ever since in actual possession of the said premises, using them for church, rectory, and school purposes ever since, and that your orator is now in actual possession of the same.

‘Your orator further shows unto your honor that the said Robert R. Reid died in or about the year 1900 leaving his last will and testament, wherein and whereby he devised his estate to the defendants Robert R. Reid and Jessie C. Ireland, and to his other heirs, as more fully appears from a copy of his said will hereto attached, marked ‘Exhibit A,’ which your orator prays may be taken as part of his bill.

‘Your orator further shows unto your honor that the defendants, or some of them, claim some interest in the said premises by reason of the fact that the said deed was made to the Bishop of St. Augustine, his successors and assigns, and that the word ‘heirs’ was omitted, and that the said claim of the said heirs of Robert R. Reid constitutes a cloud on your orator’s title and tends to render the same unmarketable in his hands.

‘Your orator further shows unto your honor that if the said deed did not operate by way of grant to convey the fee title to the Bishop of St. Augustine and his successors because the word ‘heirs’ does not appear in the deed, yet *858 the covenant of general warranty in the said deed binding the grantors and their heirs forever, and warranting the title unto the said John Moore, Bishop of St. Augustine, and his successors forever, should, and your orator believes does, operate by way of estoppel to convey to the church and its privies the perpetual and beneficial estate in the land.

‘Your orator further shows unto your honor that the said John Moore, Bishop of St. Augustine, died on July 30, 1901, and that he was succeeded as Bishop by William J. Kenny, who afterwards died and was in turn succeeded by Michael J. Curley, who afterwards became Archbishop of Baltimore, and that your orator succeeded him as Bishop of St. Augustine, and that he is now Bishop of St. Augustine, and successor in title to the said John Moore, and as such is the owner in fee of the said premises for the use and benefit of the Roman Catholic Church and its members.’

The deed, which was made an exhibit to the bill, made by Robert R. Reid and his wife, Mary C. Reid, and dated May 20, 1881, purported to grant block 33 of Robert R. Reid’s addition to the town of Orlando, as shown by recorded plat therein referred to, to ‘Right Rev. John Moore, Bishop of St. Augustine, Florida, of the County of St. Johns,’ and ‘his successors in office and assigns forever,’ together with all the estate, right, title, interest, dower, right of dower, claim, and demand whatsoever, as well in law as in equity, of the said grantors in and to the same; and the habendum clause was in these words:

‘To have and to hold the above granted, bargained and described premises, with the appurtenances, unto the said party of the second part his successors and assigns to their own proper use, benefit and behoof forever.’

The deed further contained full covenants of seisin, and title in fee simple of an absolute and indefeasible estate of inheritance, and *859 of right to convey; also covenant for quiet enjoyment and possession of the property without suit or molestation of the grantors or their heirs or assigns; also against incumbrances, and full covenant of warranty. The deed was signed and attested by two witnesses and acknowledged by the parties on the day of its date, but was not recorded until July 20, 1923.

Opinion

BROWN, J. (after stating the facts as above).

The appellants contend that the deed to Bishop Moore, not containing the word ‘heirs,’ vested only a life estate in the grantee. If this contention be valid, the life estate was in Bishop Moore with a vested reversionary interest in the grantor, Robert R. Reid, Sr., which passed under his will to his residuary devisees; the grantor having died in 1900 and Bishop Moore the following year, at which time the rights of the reversion so claimed would have accrued. As the bill was filed on September 19, 1924, more than 23 years after the death of the alleged life tenant and the accrual of the alleged right of the appellants, and as the bill shows that during this period the property had been in the actual possession of the original grantee and his successors as Bishop of St. Augustine, using the same for church, rectory, and school purposes, under color of title, it is contended on behalf of appellee that the facts alleged in the bill show that appellants are barred by the statute of limitations and also show good title in the appellee by adverse possession (citing **851 Deepwater R. Co. v. Honaker, 66 W. Va. 136, 66 S. E. 104, 27 L. R. A [N. S.] 338), rendering this alleged defect in the deed immaterial to the equity of the bill and showing that the court below was without error in overruling the demurrer to the appellee’s bill. But the bill, instead of alleging or claiming title by adverse possession, claims title through and under Robert R. Reid, Sr., the ancestor of appellants, by virtue of his deed to Bishop Moore, claiming that such deed conveyed the fee. Such is the gravamen of the bill. Nor can it be said merely *860 from the facts alleged in the bill, that the rights, if any, of the appellants were barred by the statute of limitations, as the bill does not show the age of appellants, or either of them, at the time of the death of their ancestor, or of Bishop Moore, and therefore does not show that more than seven years had elapsed at the time the bill was filed after such possible disability from nonage had ceased. In this state of the pleadings, it becomes necessary for us to consider the contention of appellants above referred to.

[1] Appellants cite the case of Ivey v. Peacock, 56 Fla. 440, 47 So. 481, wherein it was held that, prior to the enactment of chapter 5145, Laws of 1903, now appearing as section 3796, Rev. Gen. Stats., the use of the word ‘heirs’ was indispensable to the conveyance of an estate of inheritance; suggesting, however, as possible exceptions to this rule deeds to the state, trust deeds, deeds to corporations, etc. In the opinion in that case it was said:

‘The deed nowhere contains the words ‘heirs’ or ‘heirs of the body,’ but in the premises grants, bargains, sells, aliens, remises and releases and ‘forever quitclaims’ to the party of the second part the land by appropriate description, and the habendum clause reads: ‘To have and to hold the said described property, together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in any wise appertaining, to have and to hold the same in full right, title, interest or demand of what nature soever, as against the said parties of the first part, in fee simple forever.’’

In the opinion, which was by Mr. Justice Cockrell, attention was called to the fact that the deed then under consideration was executed before the enactment of the statute of 1903 above referred to, which statute provides that–

‘Where any real estate shall hereafter be conveyed or granted without there being used in the conveyance or grant any words or limitation, such as heirs or successors, or similar words, such conveyance or grant shall be *861 construed to pass the fee simple or other whole estate or interest which the grantor had power to dispose of in the real estate conveyed or granted, unless a contrary intention shall appear in the conveyance or grant.’

[2] In commenting on this statute, the opinion pointed out that it was prospective only in its operation and did not purport to affect prior grants or conveyances. However, since this case was instituted, this statute has been amended so as to apply to prior grants and conveyances, as well as those made thereafter. See chapter 10170, Laws of 1925. As to whether or not this amendatory statute can constitutionally be given such a retrospective operation and effect as to change the character of the deed now under consideration, presents a question of some difficulty which, under our view of this case, it is unnecessary for us to here decide. 12 C. J. 1053; 36 Cyc. 1210.

In the Ivey Case it was further said in the opinion:

‘The plaintiffs in error rely upon the statement of the law as given in 13 Cyc. 642. The author of the article on Deeds there asserts that it is generally held essential that the deed read to the grantee and his heirs, but adds ‘It has, however, been held in a large number of decisions that the language of the whole instrument should be considered in order to discover the intent and that where there is a clear intention to pass a fee simple, the deed will be construed so as to effectuate such intention, although the word ‘heirs’ or technical words of inheritance are omitted.’ An examination of the cases cited in support of the text will disclose, however, that they are founded upon statutes which come within some of the exceptions mentioned above or are cases construing wills not deeds.

‘The general rule of construction obtaining here as elsewhere that all parts of an instrument will be looked to and that construction adopted that carries out most clearly the evident intent of the parties does not authorize us to *862 convert a life estate into a fee simple by construction.’

This case was cited with approval in Tyler v. Triesback, 69 Fla. 595, 616, 69 So. 49, as also the cases of Adams v. Ross, 30 N. J. Law, 505, 82 Am. Dec. 237, and Kearney v. Macomb, 16 N. J. Eq. 189. These New Jersey cases held that the omission of the word ‘heirs’ in the granting clause of the deed cannot be aided by the language in the covenant clauses, although the latter evince an intention to convey the fee-that the estate granted cannot be enlarged by the covenants. See, also, 18 C. J. 297, 298, 300, 321; 7 R. C. L. 1144.

[3] This rule as to the effect of the covenant does not appear, however, to apply to the habendum clause, the purpose of which is ‘to define the estate which the grantee is to take in the property conveyed, whether a fee, life estate, or other interest.’ Devlin on Deeds (3d Ed.) §§ 213, 220. But if the estate conveyed is shown by the granting clause, the habendum is not necessary and its omission of no effect. Sections 213, 214, of same work, and 8 R. C. L. 923, 1044. And if the granting clause and the habendum are in conflict, the former ordinarily prevails (8 R. C. L. 1045, 1046), unless it clearly appears that **852 it was nevertheless the intention of the grantor to enlarge or restrict the granting clause by the habendum. Devlin on Deeds, §§ 214, 215a.

[4] [5] The use of the words ‘heirs’ in the granting clause of deeds originated in feudal times, when there was a real reason for so using it, and it finally became a rule of the common law that the use of such word was indispensable in order to convey an estate of inheritance, or in fee simple, for which no synonym could be substituted. 1 Washburn on Real Property, §§ 84, 85. As, by statute, the state of Florida adopted the common and statute laws of England of a general and not of a local nature, so far as the same were not inconsistent with the federal or state Constitution or statutes (section 71, Rev. Gen. Stats.), the rule above referred to remained in full force and effect in this state *863 until the statute of 1903 dispensing therewith, and hence was in effect at the time the deed here in question was made and also at the time of Bishop Moore’s death. Most of the states by statute, and some of them by judicial construction, have long since departed from this rule, and the rule generally adopted has been to consider the language of the entire instrument in order to discover the intent of the grantor, both as to the character of estate and the property attempted to be conveyed, and to so construe the instrument as, if possible, to effectuate such intent. 8 R. C. L. 1037, 1038; 18 C. J. 253 et seq.; Sanders v. Ransom, 37 Fla. 457, 20 So. 530; Black v. Skinner Mfg. Co., 53 Fla. 1090, 43 So. 919; Ansley v. Graham, 73 Fla. 388, 74 So. 505,

Appellee contends, however, that even though the absence of the word ‘heirs’ from the deed made it ineffective to convey a feesimple estate, yet the covenants for quiet enjoyment and of warranty will estop the defendants from asserting title to the land, citing Terrett v. Taylor, 9 Cranch, 43, 3 L. Ed. 650, and Mason v. Muncaster, 9 Wheat. page 454, 6 L. Ed. 131. It was there held that although the deed to the ‘church wardens’ and their successors could not convey to them the fee, inasmuch as there was neither statutory nor common-law authority for their capacity to hold lands as church wardens, and they could not take the fee in their natural capacity by reason of the absence of the word ‘heirs’ from the deed, yet ‘the covenant of general warranty in the deed binding the grantors and their heirs forever, and warranting the land to the church wardens and their successors forever, may well operate by way of estoppel to confirm to the church and its privies, the perpetual and beneficial estate in the land.’ But an examination of these cases shows that the deed in question in both cases was a trust deed, by its terms, having been made to certain church wardens for the use and benefit of the church in that parish. Under the laws of Virginia, where those cases *864 arose, the vestry and the parson of the church were a corporation and the title to all church property was vested in them. It further appears that the land in question was purchased by the vestry of the parish and church for the benefit and use of the church, but in making out the deed the grantors conveyed to certain persons as church wardens for the use and benefit of the church, and it was held that the error in designating the trustees to hold for the use and benefit of the church did not defeat the title of the church. It will have been observed that the deed here in question was not, by its terms, made to Bishop Moore and his successors for the use and benefit of the church.

Appellee further contends that the deed here in question was a trust deed, creating a trust in Bishop Moore which passed to his successors in a fee-simple estate, rendering the absence of the word ‘heirs’ immaterial; the rule being that a trustee takes a legal estate commensurate with the duties of the trust and the equitable estate vested in the cestui que trust, without regard to the words of limitation used. In other words, the trustee will be held to take whatever legal estate is necessary to enable him to carry out the trust. Washburn on Real Property (6th Ed.) §§ 149, 162; Tyler v. Triesback, supra; Christopher v. Mungen, 61 Fla. 513, 55 So. 273; 18 C. J. 299; 34 Cyc. 1156; Smith v. Proctor, 139 N. C. 314, 57 S. E. 889, 2 L. R. A. (N. S.) 172. In this connection appellee cites the case of Hamlin v. Perticuler Baptist Meeting House, 103 Me. 343, 69 A. 315. In this case, the deed did point out the beneficiary of the trust. It was made to two named persons, ‘a committ of the society cald Perticuler Baptist, in said town of Bridgeton, or their successors in that office for the time being,’ and the habendum was to these two persons ‘and to their successors in office to their use and behoof forever.’ Then followed the covenants of seisin and warranty. The court *865 in its opinion said:

‘It was plainly the intention of the grantor to convey the property to the grantees, not in their individual right, but as trustees for the Perticular Baptist Society, the word ‘committ’ meaning committee, and being equivalent to trustees, * * * and the words ‘successors in office’ providing for a continuance of the trust. No particular words are required to create a trust. It is a matter of intention gathered from the whole instrument and here that intention is clear. All the necessary elements exist, the trustees, the beneficiary and the property to be held.’

It was therefore held that the grantor conveyed an absolute fee simple in trust, the legal title vesting in the committee named and their successors in office, and the equitable title or beneficial interest in the unincorporated religious society known as the ‘Perticuler Baptist.’ Appellee also cites **853 Olcott v. Gabert, 86 Tex. 121, 23 S. W. 985, but in that case it appears that the land was conveyed to the Bishop of the Roman Catholic Church for the benefit of the church, and to his assigns and successors forever, and it was held that a fee simple was vested in such bishop in trust for the church. And in Beckwith, Trustee, v. St. Philip’s Parish, 69 Ga. 564, also cited by appellee in this connection, the deed read to E., ‘of the Protestant Episcopal Church in the Division of Georgia,’ to have and to hold to him the said E., ‘bishop as aforesaid, for the use of the Protestant Episcopal Church in said Division of Georgia, in fee simple,’ the holding being that this created a trust, which did not attach to the person of E., but to the office of bishop, and passed to his successor in office. There are a good many other similar cases in the books, but in all of them the deeds construed appear to have pointed out the beneficiary, that is the church or religious society for whose benefit the bishop or trustee named, and their successors in office, were to hold. In such deeds, the almost unanimous weight of authority is to the effect that the *866 omission of the word ‘heirs’ is immaterial and that the trustee will take such title as is commensurate with the trust. See note to 2 L. R. A. (N. S.) page 173, and cases cited in 34 Cyc. 1156 et seq., and 26 R. C. L. 1259. It is contended by appellee that the intent to make the deed here in question a trust deed can be gathered from the fact that the grantor was a devout Roman Catholic, as appears from the terms of his will, a copy of which is attached to the bill, and from the further fact that the grantee was the Roman Catholic Bishop of St. Augustine, having jurisdiction of Orlando, which was known to the grantor, who made the deed to the bishop and his successors in office, and that upon the property conveyed a church, rectory, and school were built. But, pretermitting the question of the sufficiency of such allegations if made, the fact remains that the bill nowhere alleges that the deed was a trust deed, or that it was made to the bishop for the benefit of the Roman Catholic Church, either in the Diocese of Florida or the church or Catholic congregation in Orlando; nor does the bill allege that the grantor was a devout Roman Catholic, and the deed itself is silent as to the purpose for which it was made and the Roman Catholic Church is nowhere specifically named therein. It is true that the bill alleges that the Roman Catholic Church is and long has been an unincorporated religious organization; that in order to carry on its work it has divided the country into diocesses, with a bishop for each diocese, each bishop having charge of the churches within his diocese; that the state of Florida, excepting a small territory in West Florida, composes the Diocese of St. Augustine, which is under the management and control of the Bishop of St. Augustine, and has been since territorial days, and that it has been the custom of the church before and at the time the deed was made to take title to property acquired by it in the Diocese of St. Augustine in the name of the  *867 Bishop of St. Augustine for the time being, and his successors in office, and where property is bought by or for the use of such church within such diocese, agreeably to such custom the title is taken in the name of the bishop and his successors in office for the use and benefit of the church and its members, with power to the bishop, whenever he sees fit, to sell and dispose of the same for the benefit of the church organization. But the bill does not allege that the grantor was a member of the Roman Catholic Church, of that he made the deed for any of the purposes consistent with the custom above referred to, or that the consideration was paid with the funds of such church, or that the deed was made to Bishop Moore for the benefit of such church.

[6] While upon a demurrer to the whole bill, such demurrer operates as an admission of the truth of all the allegations of fact in the bill which are well pleaded, as well as the conclusions necessarily resulting from such facts, yet, in passing upon such demurrer, every presumption is against the bill; the pleading being construed most strongly against the pleader. Parker v. Jacksonville, 37 Fla. 342, 20 So. 538; Metcalf Co. v. Orange County, 56 Fla. 829, 47 So. 363; Holt v. Hillman-Sutherland Co., 56 Fla. 801, 47 So. 934; Capital City Bank v. Hilson, 64 Fla. 206, 60 So. 190, Ann. Cas. 1914B, 1211. In order to determine whether the bill, in spite of the paucity of its allegations, meets this test, requires some examination of the law of trusts.

[7] Section 3791 of the Rev. Gen. Stats., taken from the Florida statute adopted in 1828, and which seems to have come down from the old English statute adopted during the reign of Charles II, provides that all declarations and creations of trust and confidence of or in lands, tenements, and hereditaments, shall be manifested and proved by some writing, signed by the party authorized by law to declare or create such trust or confidence, or by his last will *868 and testament, or else they shall be utterly void and of none effect; but with a proviso to the effect that the statute shall not apply to trusts arising by implication or construction of law. The following section of the Rev. Gen. Stats. 3792, provides that all grants, conveyances, or assignments of trusts or confidences of or in any lands, tenements, or hereditaments, or of any estate or interest therein, shall be by deed signed, sealed, and delivered in the presence of two subscribing witnesses, by the party granting, conveying, or assigning, or his attorney or agent thereunto lawfully authorized, or by last will and testament duly made **854 and executed, or else the same shall be void and of none effect.

An interesting treatment of the effect of these statutes is found in sections 78 to 111 of the Sixth Edition of Perry on Trusts.

In the case of Byrne Realty Co. v. South Florida Farms Co., 81 Fla. 805, 89 So. 318, it was held by this court that–

‘A lawful subject-matter and competent parties having appropriate authority in the premises are requisite to the creation of an express trust. In order to create an express trust, the subject, object and terms of the trust must be definitely stated by competent authority; and in order to be enforced by judicial proceedings, the trust must be evidenced as may be required by law. Where the declaration or creation of an express trust in lands is by statute required to ‘be manifested and proved by some writing signed by the party authorized by law to declare or create such trust,’ the subject, object and terms of the trust must be definitely expressed in a writing executed by an authorized party as the statute provides, or the trust cannot be proved for judicial enforcement. See 39 Cyc. pp. 44, 53, 57; Lines v. Darden, 5 Fla. 51; Floyd v. Smith, 59 Fla. 485, 51 So. 537 [37 L. R. A. (N. S.) 651, 138 Am. St. Rep. 133, *869 21 Ann. Cas. 318]; 1 Perry on Trusts (6th Ed.) § 79 et seq.’

The above enunciation is in line with the weight of authority. See 26 R. C. L. 1195 et seq., and cases cited. The authorities are, of course, practically unanimous in holding that these and similar statutes have no application to resulting or constructive trusts. Thus it was held in Gale v. Harby, 20 Fla. 171, that–

‘Parol testimony is admissible to show that the grantees in a deed of conveyance of land absolute on its face, purchased as trustees, with a knowledge of the trust, that the cash paid at the time of the purchase was money realized from the sale of the trust property, and that subsequent payments of the balance of purchase money due was money realized from the use of the property purchased with the trust fund. A purchase with trust funds is virtually a purchase paid for by the cestui que trust. Such a purchase is a trust by operation of law not within the statute of frauds, and the fund may be followed so long as its general character can be identified. Where the grantees admitted the trust, and that the purchase was made with trust funds, as well as that they held as trustees, the trust arises by operation of law based upon presumed intention of the parties, and is a resulting trust.’

This holding is also in line with the weight of authority as shown by cases cited in 26 R. C. L. 1214, 1227, et seq., and 39 Cyc. 104, 108 et seq. But it is not alleged here that this was a resulting trust.

[8] Another pertinent doctrine of the law of trusts upon which this court has made a clear announcement will be found in the case of Axtell v. Coons, 82 Fla. 158, 89 So. 419, wherein it was held:

‘A fundamental essential to the existence of any trust is the separation of the legal estate from the beneficial enjoyment; and no trust can exist where the same person possesses both. If the legal and equitable estates come together in the same person the *870 equitable is merged in the legal, and the trust is terminated. Absolute control and power of disposition are inconsistent with the idea of a trust. * * * The trustee and the beneficiary must be distinct personalities, or, otherwise, there could be no trust, and the merger of [both] interests in the same person would effect a legal estate in him of the same duration as the beneficial interest designed.’

[9] It is well established that there must be found within the four corners of written instruments creating or declaring a trust a cestui que trust. It is not necessary to name the beneficiary, but he must be so designated or described that he can be identified.’ 26 R. C. L. 1189. In section 95 of Perry on Trusts it is said:

‘Wherever a valuable consideration is paid, a contract will be executed as near to the intention of the parties as possible; as where for a valuable consideration a man executed a deed of land purporting to be under his hand and seal, but no seal was affixed, by reason of which defect the legal title did not pass, the court held that the defective deed might be used as a declaration of trust, and that the holder of the legal title should hold it in trust for the grantee in the deed and that he should be ordered to convey; and where a husband for a meritorious consideration conveyed personal property directly to his wife, by deed, which could not operate, because a husband cannot convey directly to his wife, the court ordered the deed to stand as a declaration of trust for the wife, and the husband’s representatives to hold the legal title in trust for her. The authorities establish this proposition; that where there is a valuable consideration the court will enforce the trust, though it is not perfectly created, and though the instruments do not pass the title to the property, if from the documents the court can clearly perceive the terms and conditions of the trust, and the parties to be benefited. In such cases, effect is given to the *871 consideration to carry out the intentions of the parties, though informally expressed. But if no cestui que trust is named, or so designated that he can be identified, the court cannot carry a trust into effect, however clearly it may be created in other respects.’

[10] And in section 151 of the same work, this language occurs:

‘If a conveyance has been made upon a valuable consideration, there can be no resulting trust to the grantor, as the payment of a valuable consideration imports an intention to benefit the grantee in case the trusts declared fail, or are imperfectly declared, or do not take effect for any other reason.’

See, also, to like effect, section 158, Id., where it is said:

‘But if the conveyance is by deed for a valuable consideration, the grantee will take the beneficial interest if the trust fail to be declared, **855 or fail in any way; for there can be no resulting trusts (to the grantor) where the grantee pays a valuable consideration for the estate.’

And in section 162, Id., we find:

‘A fortiori a trust deed cannot be turned into a resulting trust for the grantor by proof that it was without consideration. And when a deed contains covenants of warranty, no use can result to the grantor, for such covenants estop him from claiming any legal or beneficial interest in the estate.’

As was said in Semple v. Semple, 90 Fla. 7, 105 So. 134, in the opinion of Mr. Justice Ellis:

‘The declaration of the use to the grantee and her heirs in the habendum, assuming the conveyance to have been in the common form, is conclusive between the parties, and excludes any resulting trust to the grantor.’

[11] Of course, in this and other jurisdictions having statutes substantially similar to ours, trusts in realty cannot be proved by parol, and hence cannot be enforced against a party who denies the existence of such a trust; nor will oral proof be heard to ingraft an express trust on a conveyance absolute in terms. Perry on Trusts, §§ 76 and 79; *872 26 R. C. L. 1202 et seq.; 39 Cyc. 46, 81, et seq.; note to Jackson v. Cleveland, 90 Am. Dec. 270, 277. But a parol trust is not in all cases an absolute nullity. The party sought to be charged may admit it, even in cases where the cestui que trust could not enforce it, and the courts will usually protect the trustee in the execution of the trust, if he chooses so to do, and as far as possible protect the beneficiaries in the enjoyment of the fruits of its execution. Sections 76 to 85, Id. And in section 82 it appears that–

‘If there is competent written evidence that the party holding the legal title is only a trustee, that will open the door for the admission of parol evidence to explain the position of the parties.’

The text of 26 R. C. L. 1197, lays down the rule that–

‘The defense that a trust is void under a statute of frauds must be left to the party charged with the trust, and those holding under such party.’

But whatever may be the rule as between the trustee and cestui que trust, when there is a dispute concerning the existence of the trust, or where its existence is shown by competent written proof and the dispute is as to the meaning or scope of the trust (see sections 82, 85, Id.), we apprehend that when the question of the existence of the trust arises between the cestui que trust or alleged trustee and other parties, the mere admission of the trust by the trustee would not, in the absence of proper written evidence, be sufficient to establish its legal existence. Our statutes (sections 3791, 3792, Rev. Gen. Stats.) construed together constitute something more than a mere rule of evidence. As to such cases as come within their letter and spirit, they in effect go to the existence-or at least to the enforceable existence-of the trust itself.

[12] While parol evidence will not be admissible to vary or contradict or add to the terms of the written instrument relied on to create or prove a trust, in construing such an instrument the usual rules as to the admissibility of extrinsic evidence to affect *873 writings apply. That is, where the instrument is free from ambiguity, the donor’s or grantor’s intention is to be collected from the words used by him. But it is said by some of the text-writers on this subject that where it is impossible to ascertain the intention of the trustor from the language used, the court will consider all the surrounding circumstances of the case, and, when proper and necessary, it will receive parol evidence for the purpose of ascertaining the intention of the parties (26 R. C. L. 1180, 1202, 1252, 1256); applying the familiar parol evidence rule sometimes resorted to in the construction of the language used in deeds, i. e., that they will when necessary be construed in the light of the surrounding circumstances and attendant existing state of facts, the relationship of the parties, etc. (18 C. J. 261; 8 R. C. L. 1041), never to vary or contradict the plain intent of the language used, but, where it is ambiguous, to enable the court to understand and determine the meaning and intention of the grantor when he employed it. Horn v. Gartman, 1 Fla. 63; Bellamy v. Bellamy, 6 Fla. 62; Andreu v. Watkins, 26 Fla. 390, 7 So. 876; McNair & Wade Land Co. v. Adams, 54 Fla. 550, 45 So. 492; Black v. Skinner Mfg. Co., 53 Fla. 1090, 43 So. 919; Elliott v. Conner, 63 Fla. 408, 58 So. 241; Wofford v. Dykes, 67 Fla. 118, 64 So. 451; Ansley v. Graham, 73 Fla. 388, 74 So. 505. Fla. Moss Products Co. v. Leesburg, 112 So. 572, decided at the present term.

No particular form of words is necessary to create a trust, and whether one exists is to be ascertained from the intention of the parties as manifested by the words used and the circumstances of the particular case. Colton v. Colton, 127 U. S. 300, 8 S. Ct. 1164, 32 L. Ed. 138; 39 Cyc. 57; 26 R. C. L. 1180.

It has been held in a number of cases that ‘a deed to a bishop for the benefit of the church and to his successors and assigns forever’ vests a fee-simple title in such bishop *874 in trust for the church, in the absence of any condition subsequent, express or implied; but that the trust attaches to the office of bishop, and not to the person, and therefore passes to his successor. Doan v. Vestry, etc., 103 Md. 662, 64 A. 314, 7 L. R. A. (N. S.) 1119 and note, 115 Am. St. Rep. 379; Antones v. Eslava, 9 Port. (Ala.) 527; **856 Georgetown Meth. Society v. Bennett, 39 Conn. 293; Church of Redemption v. Grace Church, 6 Hun (N. Y.) 166; Olcott v. Gabert, supra; Beckwith v. St. Philip’s Parish, 69 Ga. 564; Moore v. Gross, 54 Iowa, 248, 6 N. W. 290; Scott v. Thompson, 21 Iowa, 599; 34 Cyc. 1156; 23 R. C. L. 451. In cases where the purpose and scope of a trust in behalf of a church was in question, as bearing on the question of the intention of the donor as to the faith or tenets of the beneficiary church, the language being indefinite, it has been held that extrinsic evidence as to the faith of the donor, or of that actually taught by the donees at the time of the donation in trust, and the circumstances under which the gift was made, were admissible in ascertaining the intention. Miller v. Gable, 2 Denio (N. Y.) 492; Robertson v. Bullions, 11 N. Y. 243; Ayres v. Weed, 16 Conn. 291; Kniskern v. Lutheran Churches, 1 Sandf. Ch. (N. Y.) 439; Presb. Church v. Congregational Society, 23 Iowa, 567.

In Mannix v. Purcell, 46 Ohio St. 102, 19 N. E. 572, 2 L. R. A. 753, 15 Am. St. Rep. 562, it was held that when land was conveyed by deed absolute on its face to a named grantee, ‘his heirs and assigns,’ it could be shown by extrinsic evidence that such grantee was in fact the archbishop of the Roman Catholic Church for the diocese in which the property was located, and that under the canons and decrees of such church regulating the method of acquiring and holding church property, the property so conveyed was held by him in trust for the purposes of religious worship and other charitable uses, and that the courts would assume control to prevent the abuse or perversion of such *875 trust. But in that jurisdiction, as stated in the opinion, ‘parol evidence may be resorted to to ingraft a trust upon a title held by deed absolute upon its face,’ while with us this can only be done in cases of resulting or constructive trusts.

On the other hand, it was held in McHugh v. McCole, 97 Wis. 166, 72 N. W. 631, 40 L. R. A. 724, 65 Am. St. Rep. 106, that a bequest of certain property to the Roman Catholic Bishop of the diocese of Green Bay ‘to be used’ by him ‘for the benefit and behalf of the Roman Catholic Church’ was void for uncertainty as to the beneficiary, it not appearing what church or body was designated or intended-whether the Roman Catholic Church of any particular city, state, or diocese, or the Roman Catholic Church throughout the world.

[13] In the case at bar, if the deed had read merely to ‘Right Rev. John Moore, Bishop of St. Augustine,’ the words ‘Bishop of St. Augustine,’ not being preceded by word ‘as.’ might have been merely descriptio personae (see State v. Gray [Fla.] 111 So. 242), but the grantee in the deed is ‘Right Reverend John Moore, Bishop of St. Augustine, Florida,’ of the county of St. Johns, ‘and his successors in office and assigns forever.’ It is the plain purpose of this deed to vest the complete legal title, with full power of alienation, in Bishop Moore, and his successors in office, in their official, as contradistinguished from their individual, capacities, respectively. 2 Perry on Trusts, § 703. As the title was to pass, not to his heirs, but to his successors in office the use of the word ‘heirs’ would have been inappropriate and meaningless; hence the law would not require it. As Blackstone tells us, when the reason for a rule ceases, the rule itself ceases; ‘Cessante ratione legis, cessat et ipsa lex.’ In this instance the use of the word ‘heirs,’ in the sense of their essentiality to the granting of a title in fee, is as unnecessary and futile as it is in the case of deeds to corporations. *876 The deed is made upon a valuable consideration and is absolute in its terms. Certainly there is nothing in it to indicate a purpose on the part of the grantor to retain any right, title, or interest in or control over the land or the uses to which it should be put. It evidences the clear intention to convey to the grantee in his official capacity a full title in fee and (if he did not dispose of it) after him to his successors in office. Unless it creates a trust, the effect of the deed was to transfer the grantor’s title and vest it in fee in the grantee in his official capacity, provided the grantee had the capacity to take and hold such title.

[14] [15] [16] [17] As to the trust feature, in the light of our own statutes and decisions and those of other jurisdictions, and the comments of the text-writers, we are clearly of the opinion that this deed does not create, or ‘manifest,’ an express trust. Neither the terms, nor the purposes, of a trust are stated, and no beneficiary is ‘named or so designated as that he can be identified.’ It is true that under the decisions, and the allegations of the bill, as well as the familiar maxim, ‘Id certum est quod certum reddi potest,’ we might construe this deed as if it had been expressly made to ‘Right Rev. John Moore, Bishop of the Diosese of St. Augustine, Fla., of the Roman Catholic Church, and his successors in office and assigns forever’; that therefore the grantee and his successors could only take, hold, and use the property rightfully in their official capacity as bishops respectively of the diocese; and that Orlando was in that diocese. It might also be admitted that, as such bishops, the probabilities are that they could only hold, use, or dispose of the property for church purposes-their official station being itself a church purpose, and their just powers as bishops being to act for and on behalf of the church. So the resulting effect of the instrument is in the nature of a trust, though by its words no trust is mentioned. This is not enough to create an *877 express trust. It cannot be said from the deed whether the **857 trust, if any, was for the benefit of the existing church at Orlando, or one to be formed there, or for the benefit of the church throughout the diocese, or for the benefit of the schools or charities of the church, or for the benefit of the Roman Catholic Church in general, or for the special benefit of the then bishop and his successors in their official capacity-such as to provide a residence for the bishop. The subsequent use of the property for a church, school, and rectory of the Roman Catholic Church in Orlando cannot be looked to, to supply the omission of the deed to state the object or purpose of the trust, or to name or designate so as to identify, the beneficiary of the trust, in order to make the instrument itself manifest an express trust. Whatever may be the rules that might be applicable in case of a contest between the church and the bishop with regard to this property, construed in the light of the laws and customs of the church, etc., or with regard to the question of a resulting trust, if such had been here alleged or relied upon, we are clear in our conclusion that this deed under the allegations of the bill, does not create or prove the existence of an express trust for the benefit either of the Roman Catholic Church, in general, or the church in Orlando, or in or for the diocese of St. Augustine; or for any other purpose. In addition to the authorities cited, see, also. St. James Parish v. Bagley, 138 N. C. 384, 50 S. E. 841, 70 L. R. A. 160; Dillaye v. Greenough, 45 N. Y. 438; Filkins v. Severn, 127 Iowa, 738, 104 N. W. 346; Atwater v. Russell, 49 Minn. 57, 51 N. W. 629, 52 N. W. 26; Jackson v. Cleveland, 15 Mich. 94, 90 Am. Dec. 270, 277.

[18] There is no ambiguity on the face of the deed which could properly be explained by parol, so as to make it an express trust. It is merely a deed, for a valuable consideration, absolute on its face, to the then Bishop of St. Augustine and ‘his successors in office and assigns forever,’ in their *878 official capacity; and both the habendum and covenants show that the full legal title was intended to be conveyed, not to the church, but to then bishop and his successors in office. United Brethren Church v. First M. E. Church, 138 Ill. 608, 28 N. E. 829; Cairns v. Hay, 21 N. J. Law, 174; Combs v. Brown, 29 N. J. Law, 36; Towar v. Hale, 46 Barb. (N. Y.) 361; Austin v. Shaw, 10 Allen (Mass.) 552; Andrews v. Atlanta Real Estate Co., 92 Ga. 260, 18 S. E. 548.

[19] [20] Nor does the language of the deed create an implied trust. Trusts of this natrue are said to arise from the construction of wills or settlement inter vivos. Implied trusts arise ‘where a testator employs words precatory, or recommendative, or expressing a belief.’ Thus, if he ‘desire,’ ‘will,’ ‘request,’ ‘will and desire’ etc. Lewin on Trusts, 148; Perry, § 112. ‘As ordinarily classified and defined, implied trusts are subdivided into the two classes, resulting and constructive; but by some authorities the term ‘implied trust’ is used in a sense exclusive of these two classes. Where the term is so used, four distinct classes of trusts are recognized, namely, express, implied, resulting and constructive; and under this classification implied trusts are defined as trusts that the courts imply from the words of an instrument, where no express trust is declared, but such words are used that the court infers or implies that it was the purpose or intention of the parties to create a trust.’ See 39 Cyc. 25, 26, and cases cited. Some authorities doubt that implied trusts of this nature are excepted from the operation of the statute of frauds. Gorrell v. Alspaugh, 120 N. C. 362, 366, 27 S. E. 85; Verzier v. Convard, 75 Conn. 1, 52 A. 255. It can hardly be argued that the language of this deed necessarily implies the intention to create a trust, for any particular purpose, or for the benefit of any particular beneficiary, none being named, and there being no precatory words contained therein. Furthermore, as this court has said, ‘Absolute control and power of disposition,’ *879 which we think this deed by its terms vested in the grantee and his successors, ‘are inconsistent with the idea of a trust.’

[21] Now, as to the capacity of the grantee to take legal title under the deed, the first consideration which presents itself is: Can the defendants, claiming under and in privity with the grantor, raise this question? ‘When a deed shows by a recital or covenant that there was an actual intention to grant and receive a certain estate, the parties are estopped from denying the effect of the deed as so intended.’ Devlin on Deeds, § 944, citing a number of cases. And in section 952 of the same work, it is said, ‘An estoppel, of course, will arise from a covenant of warranty.’ And in 21 C. J. 1067, this appears:

‘A person who assumes to convey an estate by deed is estopped, as against the grantee, to assert anything in derogation of the deed. He will not be heard, for the purpose of defeating the title of the grantee, to say that at the time of the conveyance he had no title, or that none passed by the deed, nor can he deny to the deed its full operation and effect as a conveyance.’

And in 10 R. C. L. 676, 677, it is said:

‘A grantor is generally estopped from denying the title of his grantee, or his authority to sell. * * * A grantor of lands with full covenants of warranty is estopped to claim any interest in the granted premises.’

But, it is added, a covenant of warranty ‘cannot enlarge the estate granted or pass by estoppel a greater estate than that expressly conveyed.’ However, as above shown, this deed, independendent of the warranty, expressly purported to convey the fee, and all  **858 of the estate in the property held by the grantor of any nature whatsoever.

[22] One of the headnotes to Horn v. Gartman, 1 Fla. 63, reads:

‘There is one general principle that runs through the construction of deeds-that they are to be construed most beneficially for the party to whom they are made; and secondly, that a deed shall never be void, when *880 the words may be applied to any intent, to make it good.’

To like effect, see section 848, Devlin on Deeds.

Thus it has been held that a grantor was estopped to deny the capacity of the grantee to take, where he made a deed to corporation named as grantee, the incorporation of which was not completed until subsequently. Reinhard v. Va., etc., Mining Co., 107 Mo. 616, 18 S. W. 17, 28 Am. St. Rep. 441; Broadwell v. Merritt, 87 Mo. 99. It is also the general rule that the state alone can take advantage of a clause in the charter of a corporation prohibiting it from holding land; a grantor to the corporation cannot question the capacity of the corporation in this respect. Devlin, § 121; 14 C. J. 233; and cases cited. It appears therefore that the appellants were estopped.

[23] [27] But aside from the question of estoppel by deed to deny the capacity of the grantee, we are of the opinion that Bishop Moore and his successors in their official capacity had the capacity to take and hold in fee under this deed-not in the technical sense of an estate of inheritance which was capable of descending to the heirs of Bishop Moore, or any of his successors, but a fee simple in the sense of the character of estate which a corporation takes when a deed is made to it, its successors and assigns. On reason and common sense, we think this holding is correct, and we find nothing in the books to the contrary. It is true that ordinarily an estate in fee simple is an estate of inheritance, one that will descend to the grantee’s heirs if he die before alienation thereof. Washburn, Real Prop. 137. But ‘from the nature of corporations,’ a conveyance to them ‘will be understood as a fee without words of limitation.’ And, ‘if it be a corporation sole, it must be limited to such corporator and ‘his successors,’ which in case of corporations, answers to ‘heirs’ in cases of grants to natural persons, or it would be an estate only for life of such corporator.’ Washburn, Real Prop. 153. ‘Most persons, natural and *881 artificial, may be parties to deeds. The chief exceptions that the law has found have arisen from the disabilities of infants, persons insane or mentally incapable, married women, aliens and corporations.’ Reeves on Real Prop. § 1088; Jones, Real Prop. § 156 et seq. And the author goes on to show that practically all of the disabilities referred to apply to the grantor’s capacity to make, rather than to the grantee’s capacity to take. As is said by Devlin, § 116, ‘The capacity of a grantee is less restricted than that of a grantor.’ See, also, section 120a of Devlin on Deeds.

In the case of United Brethren Church v. First M. E. Church, 138 Ill. 608, 28 N. E. 829, it was held that a deed to A., B., and C., trustees of the United Brethren Church, and their successors in office, and assigns in the city of Maline, to have and to hold to said parties ‘and their successors and assigns forever,’ with covenants, was a conveyance, not to the corporation, but to the individuals named as trustees; that it was not a conveyance to them in trust for the church, and hence the statute of uses, which applies only to express trusts, did not operate to vest the title in the church; that therefore the legal title was in the grantees named. But this case does not go to the extent of holding that such legal title, in case it had not been alienated, would pass to the successors of such trustees. In fact, in this aspect of the matter, we have found no case on all fours with the case at bar. It is of course well settled as a general rule that only natural or artificial persons (corporations) can take title to land, and that unincorporated charitable or religious organizations cannot themselves take by deed title to lands; and hence it is customary to convey to their officers of trustees and their successors, for the use and benefit of such organization, in which case such officers or trustees and their successors take and hold the legal title in trust with *882 power of alienation. If they can hold as such officers or trustees, in succession, the legal title for the unincorporated society, where the deed shows such a trust, why may they not be able to so take and hold for themselves in their official capacity where the deed creates no express trust in behalf of the society, and yet shows an unmistakable intention to convey to them and their successors in their official rather than in their individual capacities? It may be that in such a case the grantee in such deed takes neither as an individual only, nor as an artificial entity only, but partly in the nature of both-the official position, which is quasi corporate in its nature, being for the time incarnated in the man holding it, and acting through him.

[24] In the case of Beckwith v. Rector, Wardens, etc., 69 Ga. 564, already referred to, in a learned opinion by Speer, J., having under consideration a deed to E., ‘of the Protestant Episcocal Church in the division of Georgia,’ ‘to have and to hold the said bargained premises unto him, the said Stephen Elliott, Jr., bishop as aforesaid, for the use of the Protestant Episcopal Church in said division of Georgia in fee simple,’ etc., it was held that such trust did not attach to the person of Elliott, but to the office of bishop, and passed to his successors in office. It was said **859 in the opinion that it had been held that a bond payable to Gilmer, Governor, and his successors in office, was payable to the officer and not to the individual. It was further held that the subsequent incorporation of the church did not divest the title of the bishop. But this case is not directly in point, because the deed was expressly to the bishop ‘for the use of’ the church in the division of Georgia. There are cases holding that deeds to certain persons as officers or trustees of unincorporated associations operate to vest the title in such officers or trustees as individuals. See section 237 of Jones on Real Prop. There are others holding that *883 where the deed does not create a trust, the words ‘trustee,’ or ‘officers,’ ‘and their successors,’ will be treated as descriptio personae only, and others holding that where it was the manifest intention that the party named should take only in the capacity named, and not individually, the intention of the grantee should be allowed to prevail. See generally 18 C. J. 275, 276. A study of the authorities and reported cases, from the above standpoint, none of which appear to be identical with the facts alleged in this bill, leads to the conclusion that no clear rule governing this case in the respect above considered can from the decided cases be definitely pointed out. And yet it seems entirely possible to give effect to the plain language and intent of the deed, which was for a valuable consideration, to vest the title in fee, without restrictions of alienation or conditions subsequent, im Biship Moore as Bishop of St. Augustine and his successors in office, and assigns, without conflicting with any of our statutes. There is no conflict with the statute of frauds, as above shown, nor is there any conflict with the statute of uses (section 3795, Rev. Gen. Stats. 1920), as it does not provide that the grantee shall stand seized to the use of another; that is, hold the legal title as a dry and passive trust for another who has the beneficial interest and estate. 26 R. C. L. 1171 et seq.; 18 C. J. 154. Nor is the deed contrary to the rule against perpetuities, the use of the word ‘assigns’ showing the intention, along with other provisions, to vest a present estate with power of alienation. 30 Cyc. 1476. When there is neither constitutional provision, nor statute, nor binding principle of the common law, nor recognized rule of construction, which stands clearly in the way, a court should so rule as to do justice between the parties, which is the great purpose of the law, though sometimes difficult to achieve in unusual and unanticipated cases and situations. Upon this basis, *884 we should certainly give effect to the plain intention of the grantor as shown by the language used in the deed, and hence uphold the title of Bishop Patrick Barry, as the successor of Bishop Moore. The land was paid for. No doubt the price of $1,050 was considered a good one in those early days. And the wording of the deed shows beyond a doubt that Mr. Reid, Sr., intended to convey the title to the then bishop of St. Augustine and his successors, without the remotest indication of any idea that his children should have the right at any future time to take it away from them.

[25] But even if the deed in question here could not be sustained upon any of the grounds above mentioned, it would appear to be sustainable upon an old doctrine of the common law, namely, that of the ‘corporation sole.’ As hereinabove referred to, in another connection, the state of Florida adopted, by statute, the common law, in so far as the same is not inconsistent with our Constitution and statutes. Both our Constitution and our statutes provide means for the formation of corporations aggregate, but we find nothing in either Constitution or statutes which either expressly or impliedly repeals the ancient common-law institution of the ‘corporation sole.’

[26] Blackstone in book I, p. 470, tells us:

‘The first division of corporations is into aggregate and sole. Corporations aggregate consist of many persons united together into one society, and are kept up by a perpetual succession of members, so as to continue forever; of which kind are the mayor and commonalty of a city, the head and fellows of a college, the dean and chapter of a cathedral church. Corporations sole consist of one person only and his successors, in some particular station, who are incorporated by law, in order to give them some legal capacities and advantages, particularly that of perpetuity, which in their natural persons they could not have had. In this sense, the king is a sole *885 corporation; so is a bishop; so are some deans, and prebendaries, distinct from their several chapters; and so is every parson and vicar.’

And on page 472 he further says:

‘But, with us in England, the king’s consent is absolutely necessary to the erection of any corporation, either impliedly or expressly given. The king’s implied consent is to be found in corporations which exist by force of the common law, to which our former kings are supposed to have given their concurrence; common law being nothing else but custom, arising from the universal agreement of the whole community. Of this sort are the king himself, all bishops, parsons, vicars, churchwardens, and some others; who by common law have ever been held, as far as our books can show us, to have been corporations, virtute officii; and this incorporation is so inseparably annexed to their offices, that we cannot frame a complete legal idea of any of these persons, but we must also have an idea of a corporation, capable to transmit his rights to his successors as the same time.’

In volume II, pp. 273, 274, of Kent’s Commentaries (13th Ed.), we find the following:

‘Corporations are divided into aggregate and sole. A corporation sole consists of a single person, who is made a body corporate and politic, **860 in order to give him some legal capacities and advantages, and especially that of perpetuity, which, as a natural person, he cannot have. A bishop, dean, parson, and vicar are given in the English books as instances of sole corporations; and they and their successors in perpetuity take the corporate property and privileges; and the word ‘successors’ is generally as necessary for the succession of property in a corporation sole, as the word ‘heirs’ is to create an estate of inheritance in a private individual. A fee will pass to a corporation aggregate, without the word successors in the grant, because it is a body which, in its nature, is perpetual; but as a general rule, a fee will not pass to a corporation sole, without *886 the word ‘successors,’ and it will continue for the life only of the individual clothed with the corporate character. There are very few points of corporation law applicable to a corporation sole. They cannot, according to the English law, take personal property in succession, and their corporate capacity, in that respect, is confined to real property.’

See, also, Coke’s Littleton, 8b, 9b, 46b, 94b; 1 Kyd on Corporations, 76-77; Angel and Ames on Corporations (11th Ed.) § 27; 7 R. C. L. 43; 7 Am. & Eng. Encyc. of Law, 635.

It is true that the doctrine of a sole corporation has never received much recognition in America. However, it was held in Weston v. Hunt, 2 Mass. 501, that a minister of the parish seized of lands in right of the parish was a sole corporation. To like effect, see Brunswick v. Dunning, 7 Mass. 445. And in the case of Overseers of the Poor v. Sears, 22 Pick. (Mass.) 122, Chief Justice Shaw gives an interesting treatment of corporations sole, as distinguished from corporations aggregate. At the risk of unduly lengthening this opinion, we quote one paragraph:

‘It becomes then necessary to consider, what are the distinctions established by law, between a sole and an aggregate corporation. The first and the most important is, that a corporation aggregate has a perpetual existence without change, so that an estate once vested in it, continues vested without interruption. Whereas, when a bishop or parson, holding estate as a sole corporation, dies, or resigns his office, the fee is in abeyance until a successor is appointed. From this flows one necessary, but obvious legal consequence, which is, that a grant to an aggregate corporation, carries a fee, without the word ‘successors;’ but a grant to a corporation sole, without including successors, carries a life estate only to the actual incumbent, who is the first taker. Co. Lit. 8b, 9b, 94b; 4 Cruise’s Dig. 442. A life estate to an ideal being having a perpetual and uninterrupted *887 existence, must be coextensive with a fee or perpetuity, and words of limitation could not extend it. But where property vests in a bishop, parson, or other sole corporation, he holds it to his own use and benefit, whilst he holds the office, and afterwards the estate and the enjoyment of it, go together to his successor, when established. The transmission of the estate is perpetual, but the beneficial enjoyment changes at each succession.’

The existence of the corporation sole is also recognized in the following cases: Santillan v. Moses, 1 Cal. 92; Archbishop v. Shipman, 79 Cal. 288, 21 P. 830; Chiniquy v. Bishop of Chicago, 41 Ill. 148 (this case apparently founded on statute); Thomas v. Dakin, 22 Wend. (N. Y. Com. Law) 9, 101, 106; Rine v. Wagner, 135 Iowa, 626, 631, 113 N. W. 471; McCloskey v. Doherty, 97 Ky. 300, 30 S. W. 649.

That the common-law corporation sole is, under our statute adopting the common law, the law in Florida to-day, seldom as it may be called into operation, there can be no doubt; and its application to this case is inescapable, and removes all doubt as to the capacity of the grantee and his successors to take the fee simple title. But whether we recognize the appellee, complainant in the court below, in his capacity as bishop, as a corporation sole or not, the analogy to the common-law corporation sole is so complete as to bring him within the spirit and reason of the doctrine relating thereto, and vindicate our conclusion on the other grounds mentioned. For the reasons above pointed out, we find no error in the action of the court below in overruling the demurrer to the bill, and the order appealed from will therefore be affirmed.

Affirmed.

ELLIS, C. J., and STRUM, J., concur.

WHITFIELD, P. J., and TERRELL and BUFORD, JJ., concur in the opinion.

Parallel Citations

112 So. 846

 

Last updated: May 2015