The opinion
On Motion for Rehearing.
Appellants insist that we were in error in holding that the schoolhouse did not become a part of the freehold and that the title thereto did not revert to them when the land upon which the building was erected was abandoned for school purposes. In other words, it is insisted that as appellees neither alleged in their answer to plaintiffs’ petition, nor in their motion to dissolve the injunction, that it was not the intention of the trustees at the time the house was erected that the same should become affixed to the land as a part of the freehold, the general rule recognized in the original opinion that, in the absence of such intention, the house does become a part of the realty, would apply. No contention is made that it was one of the considerations for the conveyance by appellants of the land upon which the building was erected that the building should become a part of the realty and revert to them when the land should cease to be used for school purposes. Hence, if appellants are entitled to the schoolhouse erected thereon, such right is solely by virtue of the rule of law noted above. If, at the time of the erection of the house, the trustees could make it a part of the realty by their intention to make it a permanent improvement upon the land, or by erecting the same without forming any intention at the time that they or their successors in office might remove it from the land in the event of a decision to abandon the land for school purposes, then they could control the title to the house indefinitely. Under express provision of the statutes title to the house became vested in the trustees and their successors in office as trustees for those to be benefited thereby “under such rules as may be established by the state superintendent.” To give appellants’ deed the construction insisted upon would, in effect, be to say that the trustees who received the deed would have the authority themselves to vest in appellants title to the schoolhouse without receiving any consideration therefor and would have authority to bind their successors in office to do the same. Clearly, this would not be in the interest of the patrons of the school and thus deprive them of title to school property would be a breach of trust and contrary to public policy. Midland Co. v. Slaughter, 130 S. W. 612 ; Sanders v. Cauley, 52 Tex. Civ. App. 261 , 113 S. W. 560 ; Jay County v. Taylor, 123 Ind. 148 , 23 N. E. 752 , 7 L. R. A. 160; Shelden v. Fox, 48 Kan. 356 , 29 Pac. 759 , 16 B. R. A. 257, and notes; Millikin v. Edgar Co., 142 Ill. 528 , 32 N. E. 493 , 18 L. R. A. 447, and decisions there cited. In Jay County v. Taylor, supra, it was held that a contract by a board of county commissioners employing a legal adviser for a period of three years beginning three months subsequent to the expiration of the term of office of one member of the board and extending beyond the terms of office of all the members of the board was against public policy and void, and in that case the following language is used: “In Craft v. McConoughy, 79 Ill. 346 [ 22 Am. Rep. 171 ], the Supreme Court of Illinois said: ‘Whatever is injurious to the interest of the public is void, on the ground of public policy.’ This language is quoted and approved in the recent case of People v. Chicago Gas Trust Co. [ 130 Ill. 268 , 22 N. E. 798 ], decided by the same court in a learned and exhaustive opinion. In Wiley v. Baumgardner, 97 Ind. 66 [ 49 Am. Rep. 427 ] whatever is injurious oO public interest is recognized as contrary to public policy. It is evident that the contract involved in this litigation is of that character. It ties the hands of the board of commissioners, and is' prejudicial, to the free exercise of its power and functions for the public good. In West Virginia Transp. Co. v. Ohio River Pipe Line Co., 22 W. Va. 600 , 46 Am. Rep. 527 , the court says: ‘The common law will not permit individuals to oblige themselves by contract either to do or not to do anything, when the thing to be done or omitted is in any degree clearly injurious to the public’— citing Chappel v. Brockway, 21 Wend. [N. Y.] 169. See People v. Chicago Gas Trust Co., supra.”
Certainly it was' not within the spirit or intention of the statute that those who were beneficially interested in the building could be deprived of title thereto without receiv *387 ing any consideration therefor by any arbitrary act of the trustees who erected it, when the purpose of such act was not to subserve any interest of the beneficiaries.
The motion for rehearing is overruled.