CONCUSSING OPINION.
GBAVES, J.Charitable Use: Suit to Quiet Title. I concur in the opinion of Lamm, J., and put my concurrence on this ground: I do not think the action under old section 650 is a proper action in which to determine the question of plaintiffs ’ right to sell the trust property, hut they have voluntarily asked the judgment of the court upon that question in such form of action.and ought now
to be estoppel from questioning the judgment entered in such form of action, if the judgment can otherwise be sustained upon the facts. That the facts in a proper form of action would justify that portion of the judgment which precludes them from selling the property for use other than church purposes, is thoroughly demonstrated by the opinion of my brother. That defendant lias no title is also made plain by the opinion. I therefore concur in the result reached by my brother Lamm, and also in most of his opinion. I simply add that plaintiffs are estopped from questioning the form of action which determined their rights upon the question of their powers.
Woodson, P. J., and Lamm, J., also concur in these views.SEP ASATE OPINION.
BOND, J.Charitable Use: Suit to Quiet Title. The purpose of this suit, under the guise of an action to try title to land (now section 2535, R. S. 1909), is to construe and enforce a charitable trust by the application of the doctrine of cy pres. This is not an apt proceeding for that purpose, especially in view of the fact that this suit was brought prior to the amendment to the act in question, now shown in the revision of 1909. Hence, the trial court should *152have dismissed the plaintiffs’ suit. That tribunal fell into the error of entertaining the snit and undertook to render a judgment in favor of the defendant, who, admitting by her answer that she had no title to the land but that it was vested in the plaintiffs as trustees, yet set up that in the event it was sold the title would revert to her. The plaintiffs would not be entitled to a decree, even in a proper suit in equity to construe their powers as trustees, to make a sale of the lands, to which they hold the dry title as trustees, for non-charitable purposes. And if such a suit is hereafter brought, doubtless that would be the judgment of the court. The trial court, however, in the present ease undertook to vest title in the defendant which could not have accrued at the time of the trial, which, under her answer, she could only acquire upon a contingency which has not happened — the sale of the property in question for a non-charitable purpose. Plainly, therefore, the respondent had no concrete case calling for decision, and the judgment in her favor was erroneous. Under the present .state of the pleadings, respondent’s interest, if any, has not accrued and is not before this court for review.
I think the judgment of the lower court should be reversed and remanded, with directions to dismiss this suit; and to that extent only I concur in the view of my learned brother.