Kent v. Stevenson

• Decision Date: 09 January 1922
• Docket Number: 22226
• Citation: 127 Miss. 529,90 So. 241
• Court: Mississippi Supreme Court
• Parties: KENT et al. v. STEVENSON et al

90 So. 241

127 Miss. 529

KENT et al. v. STEVENSON et al

No. 22226

Supreme Court of Mississippi

January 9, 1922

1. DEEDS. A "condition subsequent" renders a vested estate liable to be defeated, and must be strictly construed.

A "condition subsequent" in a deed is a condition which operates upon an estate already vested, and renders it liable to be defeated; the estate conveyed remains defeasible until the condition is performed or destroyed or barred by limitation or estoppel; and such a condition in the deed is not favored in law, and is construed strictly because it tends to cut down or defeat the estate.

2 DEEDS. Provision for grantees' transfer on failure to erect gin held not a condition subsequent, but a covenant.

In a deed conveying land in consideration of a cash payment, and not for balance deferred, payment, containing a covenant reciting, "for the further consideration that the grantees or their assigns will erect on the premises hereinafter described a cotton gin not later than the 1st day of January, 1921; and on the failure so to do will resell the same property to the grantor herein for the cash paid to the grantor to that date, and the further agreement that the grantees will execute at the same time a quitclaim deed to said property to the grantor," such covenant is not a condition subsequent.

3 DEEDS. Covenant held to be for grantor's benefit, so that grantee would not be permitted to make default and to tender back the land and to receive payments.

Such a covenant is for the benefit of the grantor, and not for the benefit of the grantee; and the grantee will not be permitted to make default in the performance of such covenant by failure to erect the cotton gin provided for, and by virtue of such default on his part be entitled to reconvey the land to the vendor, and receive back the purchase money paid the vendor therefor.

HON. E N. THOMAS, Chancellor.

APPEAL from chancery court of Sunflower county, HON. E. N. THOMAS Chancellor.

Bill in chancery by S. H. Kent and others against W. E. Stevenson and others, for specific performance of a contract containing a deed, and for an injunction to restrain the defendant above named from foreclosing a mortgage. Motion to dissolve temporary injunction was granted, and decree entered accordingly, and plaintiffs appeal. Affirmed and remanded.

This is a bill in equity by the appellants, Kent, Pinsky, and Hemilstine, complainants in the court below, against appellee Stevenson, grantor in a deed of land to appellants, and beneficiary in a mortgage, from the latter, and the defendant in the court below, for specific performance of a contract contained in said deed, and for an injunction to restrain the appellee from foreclosing said mortgage. The case was heard by the court below on an original bill and supplemental bill and demurrer thereto by the appellee, and motion by appellee to dissolve the temporary injunction granted, which motion was sustained, and a decree entered accordingly, from which appellants prosecute this appeal.

The brief of counsel for the appellee contains such a clear and concise statement of the case that we adopt it as the statement of the court:

On the 22d day of March, 1920, W. E. Stevenson, one of the defendants in the court below, appellee here, conveyed to the appellants, by warranty deed, a certain tract of land in the town of Moorhead, in consideration of the sum of one thousand forty-three dollars and seventy-five cents in cash and one thousand forty-three dollars and seventy-five cents evidenced by the note of appellants, due and payable on the 1st day of January, 1921, and the further consideration that the grantees in said deed would erect on the premises, not later than the 1st day of January, 1921, a cotton gin, and, on the failure so to do, would resell the property to the grantor for the cash paid to the grantor to that date, and would execute to the grantor a quitclaim deed, reconveying to him the property; a copy of said deed is Exhibit A to the bill of complaint. Concurrently with the execution of said deed, the appellants executed, for the benefit of the appellee, W. E. Stevenson, a deed of trust on the property therein described, to secure the payment of the note for one thousand forty-three dollars and seventy-five cents maturing January 1, 1921; the cotton gin was not erected by the appellants pursuant to the agreement made by them in said deed; default was made in the payment of the note secured by the said deed of trust, and the land conveyed thereby was advertised thereunder for sale by W. L. Harrison, the trustee therein, one of the appellees; just after the land was advertised for sale, the appellants filed their bill of complaint, alleging that they had been unable, not through any fault of theirs, but because of the financial stringency of the times, to erect said cotton gin, and praying the court to require the appellee, W. E. Stevenson, to repay to them the sum of one thousand forty-three dollars and seventy-five cents, the amount of cash paid for the land, and to accept a quitclaim deed thereto, executed by the appellants to the said Stevenson; before the sale was made a supplemental petition was filed, praying for an injunction against the sale, and a temporary injunction was granted.

The appellants demurred to the bill of complaint, and filed a motion to dissolve the injunction on bill of complaint and demurrer, on the ground that the complainants could not take advantage of that clause in the deed executed by the appellee, Stevenson, to them on March 22, 1920, which provided that, on the failure of grantees in said deed to erect on the premises prescribed therein a cotton gin not later than the 1st day of January, 1921, the appellants would resell the property to the grantor therein, the appellee; that the appellants could not take advantage of their own default in performing the covenants and agreements in said deed to be performed by them, and, by failing to perform their part of the contract, terminate the same; and that the clause referred to in said deed, and the provisions therein for the reconveyance by the grantees to the grantor, were for the benefit of the grantor, the said appellee, and not for the benefit of the grantees, the appellants; the court dissolved the injunction, and, on the application of the appellants, allowed an appeal to this court with supersedeas.

The pertinent part of the deed in question is in this language: "For and in consideration of the sum of one thousand and forty-three ($ 1,043.75) dollars and seventy-five cents, cash in hand, paid, the receipt of which is hereby acknowledged, and of one promissory note of even date herewith for one thousand and forty-three ($ 1,043.75) dollars and seventy-five cents due and payable on or before the 1st day of January, 1921, with eight per cent interest, interest payable annually, and for the further consideration that the grantees or their assigns will erect on the premises hereinafter described a cotton gin not later than the 1st day of January, 1921, and on the failure so to do will resell the same property to the grantor herein for the cash paid to the grantor to that date, and the further agreement that the grantees will execute at the same time a quitclaim deed to said property to the grantor herein, I, W. E. Stevenson, do hereby convey and warrant unto S. H. Kent, H. Pinsky, and U. Hemilstine that certain parcel or tract of land in section three, township eighteen, range three west, in Sunflower county, Mississippi, more particularly described as follows, to-wit," etc.

Affirmed and remanded.

Lamar F. Easterling, for appellant.

The deed about which the controversy arose in this case, or that part which is material here, reads as follows: "For and in consideration of the sum of one thousand and forty-three ($ 1,043.75) dollars and seventy-five cents, cash in hand paid, the receipt of which is hereby acknowledged, and of one promissory note of even date herewith for one thousand and forty-three ($ 1,043.75) dollars, and seventy-five cents, due and payable on or before the 1st day of January, 1921, with eight per cent interest, interest payable annually, and for the further consideration that the grantees or their assigns will erect on the premises hereinafter described a cotton gin not later than the 1st day of January, 1921; and on the failure so to do will resell the same property to the grantor herein for the cash paid to the grantor to that date, and the further agreement that the grantees will execute at the same time a quitclaim deed to said property to the grantor herein, I, W. R. Stevenson, do hereby convey and warrant unto S.W. Kent, H. Pinsky and U. Hamilstine that certain parcel or tract of land in section three, township eighteen, range three west, in Sunflower county, Mississippi, more particularly described as follows, to-wit:"

The bill recites that the complainants in the court below, the appellants here were unable to build a gin upon the lot in question by January 1st, 1921, and that they had executed a quitclaim deed and tendered the same to the defendant, W. E. Stevenson, and demanded the sum of one thousand and forty-three -dollars and seventy-five cents which they had paid in cash for said property, and the cancellation of the note, but that this was refused by the said defendant.

The chief grounds assigned by the demurrer and motion to dissolve were, first, that the complainants could not take advantage of their failure to erect a gin: Second, that complainants could not take advantage of their own default in performing covenants and agreements mentioned in the deed; and Third That the clause referred to in the deed a provision for reconveyance by the grantees to the grantor was not for...