Frederic v. Mayers

• Decision Date: 06 May 1907
• Docket Number: 12,779
• Citation: 43 So. 677,89 Miss. 127
• Court: Mississippi Supreme Court
• Parties: SARAH E. FREDERIC ET AL. v. PIZARIO K. MAYERS

43 So. 677

89 Miss. 127

SARAH E. FREDERIC ET AL. v. PIZARIO K. MAYERS

No. 12,779

Supreme Court of Mississippi

May 6, 1907

FROM the chancery court of Jackson county, HON. THADDEUS A. WOOD Chancellor.

Mrs Frederic and others, the appellants, were complainants in the court below; Mayers, appellee, was defendant there. The bill sought the cancellation of defendant's claim to a lot in the town of Scranton as a cloud upon complainants' title thereto. From a decree wholly in defendant's favor the complainants appealed to the supreme court.

In 1874 one Melancthon Smith established a newspaper in the town of Scranton, Miss. having secured donations from the citizens of that place, and having obtained the promise of W. E Frederic, the ancestor of the complainants, of the lot upon which to erect a building. In order to fully understand the conditions of the donation of the lot, he wrote Frederic, who was then a resident of New Orleans, a letter, substantially as follows:

"I now have the lumber on the ground and am ready to commence an office for the Star. I propose to build on the lot which you pointed out to me, . . . and will be pleased if you will write and state the agreement, that there may be no mistake."

To which letter Frederic replied in substance as follows:

"I agree to give you the privilege of building an office for the publication of the Star, on the lot pointed out by you. . . . You can retain possession of the lot and building as long as you use the same for an office for the Star."

The building was erected, and the publication of the Star continued by Smith for about two years, when he sold out to one Richmond, who afterwards consolidated his paper with the Democrat, published by Mayers, the appellee, and they jointly published the Democrat-Star, occupying and holding the lot on which Smith had begun the publication of the Star. In 1884 Richmond sold his interest to Mayers for $ 1,000, taking from him a conveyance which, after describing the personal property, concludes: "Together with all my rights in the books and business of the aforesaid printing office and the rights to the ground upon which it stands." About the time of the sale to Mayers, Frederic moved to Scranton and lived there until his death in 1904, and knew of the conveyance to Mayers; he acquiesced in the same, and stated to several persons that Mayers had the use of the lot so long as he continued to publish a newspaper, and when he ceased to do so the lot was to revert.

Appellants contended that the instrument under which Smith held the land was not transferable, but was personal, and related alone to Smith's newspaper, the Star, and, when Smith ceased to occupy the lot as an office, his rights to the premises ceased, and Richmond acquired no rights which he could transfer to Mayers; that the license given Smith was revocable at the pleasure of Frederic; that Mayers occupied the land by parol license from Frederic, which was revoked by the death of Frederic; and therefore appellants are entitled to possession; that under any view of the case the decree of the court below should have defined the respective rights of the parties and should be reversed or modified so as to protect the reversionary interest of complainants.

Appellee contended that the agreement between Frederic and Smith vested in Smith not a mere license, revocable at pleasure or by death, but created an easement and interest, not in the fee, but in the occupancy and use of the lot, according to the terms prescribed; that any change in the occupancy and use of the lot, with the consent, expressed or implied, of Frederic, was valid, as was any waiver of his rights by him as to any condition of the contract; that since Frederic had acquiesced and approved of the occupancy by Mayers, and had knowledge of the improvements made upon the lot by him, he was estopped from interfering with Mayers' rights; and further, that the statute of limitations protected Mayers' claim of an easement, just as it did any other right connected with land, and that he had always claimed his right of occupancy openly and adversely to Frederic, who never questioned the right.

Affirmed.

Ford, White & Ford, and McWillie & Thompson, for appellants.

That the letters between Smith and Frederic, deceased, must be treated as evidencing the rights of the parties seems manifest. The statute of frauds, among the wisest of legislative enactments, is predicated of knowledge that human testimony is uncertain and cannot be depended upon; it is uncertain because of the frailty of human recollection more, perhaps, than because of the wickedness of mankind. The philosophy of the statute is much broader than its terms. If we must determine between writings made and acted upon at the time of a transaction and the uncertain memories of witnesses about what occurred, was said and done, years before, every teaching of wisdom and of the law urges us to accept the writings.

According to the writings Frederic granted Smith nothing more than a privilege of building an office on the lot and (the privilege) of retaining possession of the lot and building as long as he (Smith) used the same for an office for (his newspaper) the Star.

What is a privilege? "A privilege is . . . a right peculiar to the person on whom it is conferred, not to be exercised by another or others." 23 Am. & Eng. Ency. Law, 45, and cases cited.

It follows, therefore, that the privilege conferred on Smith by Frederic was not assignable, unless by consent of the owner of the land.

If non-assignable, Richmond and Mayers, who entered under Smith, acquired no rights whatever by their respective entries; they, however, having entered in recognition of Frederic's title, are estopped to set up an adverse claim of ownership by reason of long occupation, they having always recognized the title under which they entered upon the land. All this is true, even though they acted upon the idea that Melancthon Smith acquired an assignable interest in the lot.

If we treat the letter as investing Smith with an assignable interest in the land, it does not help defendant's case or lead to any conclusion more favorable to him, since he must then be treated as standing exactly in the shoes of his original assignor, Smith, whose privilege, or right, if you please to so call it, was certainly revocable. It was a mere license and not a grant. It was a license, too, of a low order, for the word used in the letter is "privilege." Privileges are never assignable, even if licenses sometime are. A license is a personal privilege terminable at the will of either party and a licensor may revoke it at any time, by the use of express words to that effect, or by doing any act evidencing intention to revoke. No formal notice to the licensee of the revocation is necessary. 18 Am. & Eng. Ency. Law (2d ed.), 1140.

In this case the death of Frederic, complainants' ancestor, was a revocation of the license. 18 Am. & Eng. Ency. Law (2d ed.), 1144. All the authorities on the subject are to the same effect. But certainly the license was revoked by the demand made by complainants before beginning suit, which demand is admitted in the answer. A mere privilege (the word used in the letter is "privilege") is not superior to a license. A privilege to build and occupy a house on land of another may be something less than a "license;" never more than one.

If the license was not assignable, but the parties who went onto the land under Melancthon Smith did so upon the idea that it was assignable, they must yield possession, since they have no title and have occupied the land in recognition of complainants' title.

If the license was assignable, they as assignees must yield possession for the same reason.

An irrevocable license is one which is coupled with an interest or grant; as if Frederic had sold a lot to Smith and by the deed thereto had granted him a right to use an adjoining lot for designated purposes. There is no grant of any kind coupled with the license involved in this case; you can make nothing of the letter save that it evidences a license ("privilege" is the word used) given to Smith, authorizing him to build an office for a designated newspaper on the lot and retain possession of it and the building as long as he (Smith) used the same for an office for the Star. There was no consideration for the donation. Surely, in the absence of a contract between them, the giving of a dime to a beggar by one man is not a consideration for a like gift by another, and the giving of lumber by mill men to an editor is not a consideration for the giving of the use of the land to him by a landowner. But if a consideration can be found for the privilege given by the letter, the scope of the grant is not thereby enlarged, since such consideration must be referred to the grant and treated as supporting it, and should not be used to enlarge it. There is no assault by complainants on the letter as being a nudum pactum, and the grant made by it should not be enlarged because a consideration shall be (if any can be) suggested for its execution.

According to Mayers' answer and testimony, he occupied the premises by and under, not the letter, but a parol license given him by complainants' ancestor. If this be true, the letter is out of the case and the parol license has been revoked by the death of Frederic and the demand, and the decree of the chancellor is erroneous. Hodgkins v. Farrington (Mass.), 15 Am St. Rep., 168; Crosdale v. Lanigan (N. Y.), 26 Am. St. Rep., 551; Pitzman v. Boyce (Mo.), 33 Am. St. Rep., 536.

The true theory of the case is that Smith entered upon the land under the letter, as a mere licensee; the privilege granted by the letter was personal to Smith; and it related alone to...