Hinton v. Vinson

• Decision Date: 24 November 1920
• Docket Number: 257.
• Citation: 104 S.E. 897,180 N.C. 393
• Parties: HINTON ET AL. v. VINSON.
• Court: North Carolina Supreme Court

104 S.E. 897

180 N.C. 393

HINTON ET AL. v. VINSON.

No. 257.

Supreme Court of North Carolina

November 24, 1920

Appeal from Superior Court, Wake County; Guion, Judge.

Action by C. L. Hinton and others against J. A. Vinson. From judgment for plaintiffs for nominal damages, both parties appeal. New trial ordered.

When the meaning of a will is perfectly clear, there is no room left for construction.

The Hintons and Mr. and Mrs. Watson, owners of the land described in their deed, conveyed the timber thereon of a certain kind and size to John Vinson on April 23, 1907, the same to be cut within eight years from date. There were other provisions in the deed, which may be omitted as not being material, The deed contained this clause:

"And the party of the second part accepts this deed with the condition that he, his heirs and assigns, will erect no mill on the streams leading into the fishpond on said land which, with 30 acres adjoining the same, has been leased to E. H. Lee and others for fishing and hunting, and that he his heirs and assigns, will not run any road, tramroad, or railroads through any growing crop or crops without making full compensation therefor."

Plaintiff alleged, that, in violation of the said provision as to locating a mill set out in paragraph 3, the defendant did locate a sawmill on one of the streams leading into the said pond, and did permit large quantities of sawdust and shavings to be piled up at said location within 40 feet of said stream, and did clear up land for stacking lumber and made roadbeds around it. On account of the location of the sawmill on the stream the sawdust has been washed down into the stream and thence into the pond in large quantities, and on account of the fact of the sawdust and turpentine therefrom permeating the water of the pond, and on account of mud being washed down into the pond from the said clearing and roads, the pond has been seriously and permanently damaged for fishing purposes. The pond was one of the best-stocked fishponds in this section, and before the sawdust contaminated the same fishing was excellent, but since the piling of sawdust, which washed down into the pond fishing there has been practically ruined. Plaintiffs are informed and believe, and so allege, that the location of the sawmill on the stream in violation of said provision of the contract forfeits all rights of the defendant in and to the said contract and his rights to the timber conveyed therein, whether previously cut by him or now standing. There was on said land over 5,000,000 feet of merchantable timber, the value of which is now $30,000. The plaintiffs, after discovering that the mill was located on said stream, notified the defendant that his rights were forfeited under the contract and demanded that he desist from further cutting of the said timber; but the said defendant has disregarded said demand and has continued to cut and remove the said timber. Plaintiff prayed for judgment declaring that the condition had been broken, and that the contract and all of defendant's rights thereunder had been forfeited, and that plaintiff recover of the defendant the value of all the timber cut from the land, which is $30,000, and $5,000 additional for damages to the fishpond, and that defendant be enjoined from entering upon the land and from cutting timber thereon. The defendant in his answer denied the allegations of the complaint. The court submitted the issues to the jury, to which defendant objected, and which, with the answers thereto, are as follows:

"(1) Did defendant in locating his sawdust pile near the stream emptying into the plaintiff's millpond suffer and permit sawdust and turpentine and the seepage therefrom to be washed into said stream and emptied into said branch, seriously and permanently injuring said pond as alleged in the complaint? Answer: Yes.

(2) If so, what damages has plaintiff sustained by reason thereof? Answer: $1."

A motion by defendant for a nonsuit was refused, and he excepted. Judgment on the verdict, and both parties appealed.

R. N. Simms and S. Brown Shepherd, both of Raleigh, for plaintiffs.

Douglass & Douglass, J. H. Pou, and Murray Allen, all of Raleigh, for defendant.

WALKER, J. (after stating the facts as above).

When we consider the real question in this case, its decision becomes a simple one. We are not by this record called upon to decide whether the clause of the deed quoted in our statement of the case is a condition, or merely a covenant, for the complaint only declared upon it as strictly a condition, whereas the court submitted issues not according to the allegation of the complaint and the denial of the answer, but substantially and essentially departed from the only issue the parties themselves had made, and submitted an issue as to whether the defendant had violated a local statute applicable to Wake county alone which prohibited any person, firm, or corporation from dumping sawdust in or near any stream in that county, declaring the doing of the forbidden act a misdemeanor punishable by fine or imprisonment. Public Local Laws of 1915, c. 373, § 1. The defendant duly excepted to this ruling of the court, though the plaintiff did not formally, but insisted that the court should confine the case to the breach of the clause in the deed, treating it as one of condition, and not of covenant, and that upon the finding of the jury that there had been a breach the court should declare that defendant had forfeited the contract and all his rights and interest thereunder, and for the breach that plaintiff should recover of him the sum of $35,000. It was error in the judge to submit an issue not raised by the pleadings and against the objections of the defendant, as well as the apparent opposition of the plaintiff, and because of this material error there must be a new trial.

But it may be well to consider whether the stipulation of the deed is a condition or a mere covenant of the defendant not to do the forbidden act, implying a promise on his part to pay damages if he broke the covenant. This question fairly arises in the case and will have to be determined at the next trial. It should be settled now to prevent further litigation and delay. The language of the deed is that "the party of the second part accepts this deed with the condition that he his heirs and assigns, will erect no mill on the streams leading into the millpond," etc. There is no clause of forfeiture or re-entry, or any words declaring the deed void if the condition is broken. If this should be construed as a condition at all, it is not one precedent, but subsequent, which is strictly construed, for the law always leans against forfeiture. Chancellor Kent said that "conditions subsequent are not favored in law, and are construed strictly, because they tend to destroy estates, and the rigid execution of them is a species summum jus, and in many cases hardly reconcilable with conscience." 4 Kent's Comm. (12th Ed.) star pages 129 and 130, citing Coke's Litt. 205 b, 219 b; 2 Bl. Comm. 156; Mitchell v. Reynolds, 1 P. Wms. 189; Cary v. Bertie, 2 Vern. 339; Martin v. Ballou, 13 Barb. (N. Y.) 119; and other cases. He also says that, if it be doubtful whether a clause in a deed is a condition or covenant, the courts will incline against the former construction, for a covenant is far preferable to the tenant. Kent's Comm. (13th Ed.) star [104 S.E. 899] page 132. A clause in a deed will be construed as a covenant, unless apt words of condition are used, and even then it will not be held to create a condition, unless it is apparent from the whole instrument and the circumstances that a strict condition was intended. Jones on Conveyances, p. 534, § 646. In deciding whether the language of the deed creates a condition or is merely to be regarded as a covenant, the omission of a clause providing for re-entry of the grantor for condition broken or declaring the deed void, or some equivalent words, is to be considered by the court, for some such expression is the usual indication of an intent to create a condition subsequent. Gallaher v. Herbert, 117 Ill. 160, 7 N.E. 511. And Chief Justice Bigelow, in Ayer v. Emery, 14 Allen (96 Mass.) 67, held it to be perfectly well settled that a stipulation in a deed will not be construed as a condition, except when the terms of the grant will admit of no other reasonable interpretation. The same doctrine was approved in Studdard v. Wells, 120 Mo. 25, 25 S.W. 201. The law favors the early and absolute vesting of estates and leans favorably towards the idea of a covenant rather than one of condition. Allen v. Allen, 121 N.C. 328, 28 S.E. 513. This question is fully discussed in Helms v. Helms, 135 N.C. 164, 147 S.E. 415, and Brittain v. Taylor, 168 N.C. 271, 84 S.E. 280. In the last case it was said that, if something is required by the deed to be done, such as services to be performed, rent to be paid, or divers other undertakings by the grantee, and there be added a clause of re-entry, or, without such clause, if it is declared that, if the feoffee does or does not do the acts forbidden or required of him to be done, "his estate shall cease or be void," it creates a good condition subsequent, citing Washburn on Real Property (5th Ed.) pp. 4 and 5; Sheppard's Touchstone, 125; Moore v. Pitts, 53 N.Y. 85; Schulenburg v. Harriman, 21 Wall. (U. S.) 44, 22 L.Ed. 551; Jackson v. Crysler, 1 Johns. Cas. (N. Y.) 125. "Conditions subsequent, especially when relied on to work a forfeiture, must be created by express terms or clear implication, and are construed strictly." 2 Washburn on Real Property (5th Ed.) pp. 7, 8, par. 5, and cases in note. An estate on condition expressed in the grant or devise itself is where the estate granted has a qualification annexed...