The Reporter will state the facts showing the object and purposes of the corporation, its organization and plan, and the history of the acquisition of the property in question.
The court holds on the facts presented that the property in controversy was acquired by the appellant corporation for the purpose of establishing and maintaining thereupon a reading room and library for the benefit of the members of the corporation and “of the multitude of people who visit” the city of Hot Springs “in search of health and pleasure.” Uuder these facts, is such property subject to sale under execution on a judgment rendered against the corporation for a tort? The judgment was recovered for an injury received by reason of a blast, while excavating upon the property under a contract calling for such •excavation.
In section 3049, Sand. & H. Dig., is an enumeration of property subject to execution, which includes all real estate whereof the defendant or any person for his use was seized in law or equity at the time of the rendition of the judgment. Sections 3052-3055 exempt from execution property which would otherwise fall within the prior section. Such property as this is not eo nomine within the exception, and the question arises whether it is within the definition of property subject to execution. That brings into consideration the nature of the title held by the corporation.
It is insisted that this is a charitable trust, and on the other hand that it is not. “Charitable trusts include all gifts in trust for religious and educational purposes in their ever-varying diversity; all gifts for the relief and comfort of the poor, the sick, and the afflicted; and all gifts for the public convenience, benefit, utility, or ornament, in whatever manner the donors desire them applied.” 2 Perry on Trusts, § 687.
The Statute of 43 Eliz., c. 4 (1601), was the culmination of the law of England on the question of charitable trusts, and has generally been followed by construction or statute in this country. 1 Beach, Trusts and Trustees, § 320. Therein are enumerated the various objects and purposes of charitable trusts. Libraries are not specifically mentioned, but the maintenance of various educational institutions and scholarships and like objects of benevolence and public utility are enumerated; and it has been uniformly held that there are many such trusts not within the strict letter of the statute, but which fall within its spirit, equity and analogy, and are considered charitable trusts. 2 Perry on Trusts, § 692; Hill on Trustees, p. 453.
Public libraries fall within the spirit and analogy of charitable trusts. 2 Perry on Trusts, § 700, and authorities in note a; Donohugh’s Appeal, 86 Pa. St. 306; Crerar v. Williams, 145 Ill. 625; Corey Library v. Bliss. 151 Mass. 365; 1 Beach on Trusts, § 317.
The nature of these ' trusts is thus expressed: ‘In distinction from an express private trust, which, by the definition, is designated for the benefit of one or more individuals, the' trust for charitable purposes is a public trust, and from the nature of the case the benficiaries are, to a greater or less extent, unknown or indefinite. 1 Beach, Trusts and Trustees,. § 322.
The charitable trusts may be administered by a corporation organized for that purpose, and it becomes a mere agency for the handling of the trust property. 1 Beach, Trusts and Trustees, § 334.
This corporation belongs to this class, and holds only a naked legal title to the property, the beneficial interest being owned by the public. “While, as a general rule, all legal estates in land are subject to execution, the rule is not applicable to the detriment of persons for whose benefit the legal estate may be held. It is only when the holder of the legal title has some beneficial interest that it can be sold under execution. If he' is a mere trustee, or if, for any reason, he holds the bare legal title for the benefit of another, an execution sale against him transfers no interest whatever.” 2 Freeman on Executions, § 173-
In Grissom v. Hill, 17 Ark. 483, it was held that where there was a deed to trustees for a public charity, with or without a prohibition in the deed against a sale, if the sale would defeat the object of the charity, the trustees would have no power to sell, and their sale would pass no title. It was further held that the trustees could not indirectly do what they could not do directly, and that sales made in pursuance of judgments growing out of improvement contracts could not operate to take the property away from the trustee. Certainly, if the trustees .could not defeat the trust by# default in contractual obligation, they should not be allowed to defeat it by default in not exercising proper care whereby parties were injured through negligence.
Opinion delivered March 11, 1905.In the Grissom-Iiill case a sale under a mechanics’ lien on a church house was defeated on this principle. It was further said in that case that charitable trust property was not secured' from all transfers by operation of law; that, unless exerftpted, it would be subject to sale for taxes and other public charges,, because provision for the support of the Government was paramount. The Constitution of 1874 removed this possibility of defeating public charities, and expressly exempted libraries and other public charities from taxation. Art. 16, § 5.
Therefore, it follows that the property in question was not subject to execution and sale, and the appellees derived no-title through the sale.
The judgment is reversed, and remanded with directions to-overrule the demurrer and for further proceedings.
Wood, J., disqualified. McCueeoch, J., not participating.