(concurring specially).
I do not wish, in any way, to express my approval of language that can be interpreted to mean that there was fraud, fraudulent intent to siphon money, a scheme to siphon, or a conspiracy of fraudulent intent on the part of Lacey. Times were hard in 1936. To have put up money for a cemetery in the “dirty 30’s” for an eventual beautiful cemetery on the edge of our Black Hills was an act of good will, albeit for a profit.
I would simply hold that the 1936 contract for deed is void and unenforceable for its nature and intent was to make profit, an ordinarily admirable purpose, but in dealing with a charitable corporation such as a cemetery, it is forbidden. SDCL 47-29-23. Profits in charitable corporations are contrary to public policy and the purpose of their creation. Plaintiffs, therefore, as successors in interest are not entitled to the extraordinary judicial remedy of specific performance of a contract that is void. Title should be vested in Pine Lawn. The trial court should be affirmed in this regard.
It would reasonably follow that upon plaintiff’s compliance the $7,105.41 money judgment award against McConville would be reversed, based upon Pine Lawn’s representations to the Supreme Court that it would forgive the money judgment.
I am authorized to state that FOSHEIM, J., joins in this special concurrence.