(dissenting.) I did not participate in the original consideration of this case, but on the petition for rehearing have considered it, and am unable to concur in the views of the majority of the court. I think that the judgment rendered against appellant establishing the liability -is enforceable, and that the property in controversy was properly sold to satisfy the judgment.
Appellant is a corporation organized for benevolent purposes under -the provisions of subdivision IX of chap. 31, Kirby’s Digest. A section of the statute on that subject reads as follows :
“Such corporations shall have such powers of suing and being sued, buying, holding and selling property, real and personal, and of otherwise carrying out the purposes and objects of their organization as are possessed by other corporations, and which may be necessary to their efficient management and the promotion of their purposes.” Kirby’s Digest, § 943.
The preamble to the constitution recites that the purpose of the association is for “organizing a reading room and library for our own benefit and that of the multitude of people who visit our city in search of health and pleasure.” The constitution provides, among other things, that “ladies may become members by signing the constitution and paying an initiation- fee of $2 annually and 25 cents monthly dues; that any gentleman who pays the sum of $50 at any one time shall be entitled to honorary life membership in the association; that -any one who pays the sum of $250 shall be constituted a life patron, and shall be entitled to all .the privileges of membership except voting in business meetings; that gentlemen may become associate members of the association by the annual payment of $5.”
The patent issued by the United States to appellant conveying the lots in controversy is absolute in terms, and conveys the title in fee simple without reservation or condition, except a proviso in accordance with the form usually adopted in patents to lands in -the vicinity of the celebrated Hot Springs, prohibiting the grantee and its successors and ‘ assigns “from ever boring thereon for hot water.”
I think that, according to the decided weight of authority, corporations organized as agencies purely for charitable or like purposes are not liable for torts of their servants. 1 Jaggard on Torts, pp. 187, 188; 6 Cyc., p. 975; McDonald v. Mass. General Hospital, 120 Mass. 432; Powers v. Mass. Homeopathic Hospital, 109 Fed. 294; Perry v. House of Refuge, 63 Md. 20.
But we are precluded from inquiry as to liability of appellant by the judgment of a court of competent jurisdiction adjudging its liability. The only question is whether or not the judgment can be enforced against the property of appellant. It seems to me that the statute conferring upon such corporations the power to sue and imposing upon them liability is conclusive of -the question ' of the right of a creditor to enforce payment of his debt out of the property of the corporation after the liability has been established by a court of competent jurisdiction.
The general rule is that all property is subject to sale under execution for payment of debt. Our statute so declares: Kirby’s Digest, § 3228.' This applies to corporations as well as individuals. Judge Thompson says: “The jus disponendi is involved in the very idea of property, and it is well said that, in the absence of some express legal exemption, it is an inseparable incident to property, legal or equitable, that it should be liable to the debts of the owners, as it is to his alienation.” 6 Thomp. on Corp. § 7847-
Judge Freeman in his work on Executions, vol. 2, § 172, states the general rule with reference to property subject to execution, thus:
“It is ordinarily sufficient to inquire whether the interest sought to be sold is real property, and, if so, whether the defendant in execution has a legal estate therein. These questions being answered in the affirmative, the property or the defendant’s interest therein must be regarded as subject to execution unless it falls within some exception hereinafter stated. The right to-subject real property to execution is not dependent upon the character or capacity of the person, whether natural or artificial, to whom it may belong, except that they must be persons against whom a judgment may properly be enforced and its payment coerced; and they must have a beneficial interest in the property, and not hold it merely upon some trust, public or private.”
This.leads us to a consideration of the question whether the appellant, or its property which was sold under execution, falls within any of the recognized exceptions to the general rule making all property of individuals and corporations subject to execution.
This court held in Grissom v. Hill, 17 Ark. 483, that the trustees of a church, under a deed which provided that the “lot of land is never to be sold or to be used in any other way only for the use of a 'church,” could not create a charge upon the lot by contract for the erection of a house thereon, so as to authorize the mechanic to obtain a lien and sell the lot in payment thereof. But in the case at bar, the conveyance under which the library association obtained title contained no restriction, limitation nor condition. .It is absolute in form, and conveys the title in fee simple. It is true that the act of Congress'authorizing the patent to be issued upon payment of the appraised valuation of the lot recites the reasons therefor, but it imposes no conditions upon the use of the property.
In the case of Wright v. Morgan, 191 U. S- 55, where lands were patended to the city of Denver pursuant to an act of Congress “to enable the city of Denver to purchase certain lands in Colorado fbr a cemetery” at the minimum price, “to be held and used for a burial place for said city and vicinity,” and where by a subsequent act the city was authorized to “vacate the use' of said lands, or any portion thereof, as a cemetery, for a public park or grounds,” it was -held that the title was absolute, and that -the city had the power to alienate the lands so patented. The court, speaking through Mr. Justice Holmes, said: “If the legal title wa's in the city, it was an absolute title. In view of the extreme unwillingness of courts to admit the existence of a common-law condition, even when the word condition is used, it needs no argument to show that there was no condition or limitation here. Little more needs to be said to show that the act of Congress did not make the land inalienable at common law. ' We need not consider whether the act could have that effect upon land within a State, when the conveyance was absolute, and was made to a citizen or instrumentality of the State;'we express no opinion upon the point. It is enough that it did not purport so to restrict the ordinary incidents to title. We'-should require the clearest expression of such an unusual restriction before we should admit that it was imposed, especially in an ordinary sale for cash. Here the act probably meant no more than to explain the motive for a sale at the minimum price.”
The authorities on this subject are fully cited and exhaustively discussed by Mr. Justice White in Stuart v. Easton, 170 U. S. 383, where it is held -that a mere declaration of purpose contained in a patent did not have the effect of qualifying or limiting the estate granted thereby.
It is not to be denied -that where the naked legal title to property is held in trust it can not be sold under execution issued on a judgment against the trustee; but that rule does not apply here. The legal title, and the beneficial interest as well, were vested in the library association, the legal entity against which-the judgment was obtained, and there is no beneficial interest separable from the corporate association. The public had no interest in the property or in its use, save such as the corporation, acting through its members and officers, might see fit to bestow from time to time. As is well said by .counsel for appellees in their brief: “The association is not a mere agency. It is the thing itself, instituted and organized on its own motion, with all the powers pertaining thereto which an individual would have if he should undertake such an enterprise.”
Churches and like associations and corporations, though in a limited sense agencies of the public, are governed by the ordinary rules of law controlling 'the rights of individuals and other corporations. 2 Kent. Com. § 274; Robertson v. Bullions, 11 N. Y. 243; Presbyterian Congregation v. Cole, 2 Grant’s (Pa.) Cases, 75; Fadness v. Braundborg, 73 Wis. 257.
In Presbyterian Congregation v. Cole, .supra, it was held, that a church house was subject to execution, the court saying: “Churches are intended for public benefit; but this is a part of the public interest that is committed exclusively to private enterprise, and governed by the rules and remedies that belong to private relations, and it may well be questioned whether it would be for the public benefit to allow them to disregard their contracts.”
Learned counsel for appellant has not cited us to a single authority holding that the property of an association of this kind can not be sold under execution. None are cited in the opinion of the Chief Justice, and I have been unable to find any; therefore I am persuaded that there are none, and that there is no substantial reason why the property of this association should form an exception to the rule that all property is liable to execution against the owner.
The case of Powers v. Mass. Hom. Hospital, 109 Fed. 294, relied on, apparently, with much confidence in the opinion of the majority, merely holds that “a patient in a public hospital, chartered as a charitable corporation, although under private management, can not recover from such corporation for injuries resulting from the negligence of -a nurse employed in its hospital,” a doctrine in line with the decided weight of authority that such corporations are not liable- in suits founded upon torts of its servants.
Nor, to my mind, can any support to the views of the majority be found in the case of Glavin v. Rhode Island, 12 R. I. 411, where it is held that such a corporation is liable for torts committed by its servants. Lam un-ablé to see how, from a doctrine that such a corporation is liable in judgment for its torts, a theory can be worked out that its property is not liable, to sale under -execution issued upon the judgment.
I am therefore of the opinion that the property was legally sold under execution, and that the purchasers at the sale took a good title.