Kimball v. City of Jackson
| Decision Date | 02 December 1918 |
| Docket Number | 20415 |
| Citation | 118 Miss. 789,80 So. 3 |
| Court | Mississippi Supreme Court |
| Parties | KIMBALL v. CITY OF JACKSON |
APPEAL from the chancery court of Hinds county, HON. O. B. TAYLOR Chancellor.
Bill by the City of Jackson against A. N. Kimball, with cross-bill by defendant. From a decree for plaintiff, defendant appeals.
The facts are fully stated in the opinion of the court.
Affirmed and remanded.
Monroe McClurg, for appellant.
The single assignment of error is that the lower court erred in sustaining the demurrer. The three points in this argument are:
I. The deed on its face, especially in the proper construction and rational application of the words, language, and general frame of the deed means that the city shall bear the expense of paving that part of Robinson Street conveyed to it by the appellant.
II. If there is doubt arising out of the reading of the deed as to such construction and application, the demurrer should have been overruled, the cross-bill answered and the parties remitted to their proofs to aid the court in reaching a proper construction, interpretation and application of the words and phraseology used in the body of the deed to determine its real meaning.
III. The record discloses affirmatively that the demurrer was improperly interposed, being based upon an agreement between counsel as to what the evidence would be, which agreed evidence was in emphatic contradiction of the deed materially varying, altering, and changing its plain purport and meaning; wholly incomplete evidence. These three propositions will be discussed in general run of this brief to save repetition in argument and citations in a separate discussion; the first two inseparably refer to each other the third proposition is sui generis; an agreement as to the control of incompetent evidence and then to demur to the answer and cross-bill.
While the intention of the parties is to be derived first from the language of the instrument, then, if necessary, with the aid of the surroundings of the parties at the time of executing it, not to contradict, but interpret the language they employed, the whole instrument will be looked to in construing it. If the context shows that a different construction should be placed on certain words to meet the meaning in which they were employed, this will be done. The substance of the conveyance may be found beneath and within the words employed and without doing violence to them by interpreting those words in the light of the deed, and the surrounding circumstances if necessary to resort thereto. Wilzinski v. L. N. O. & T. Ry. Co., 66 Miss. 595; Atkinson v. Sinnot, 67 Miss. 502, 510, "Redeem" technically used construed to mean "reserved". Thomas v. Holmes County, 67 Miss. 574.
The purpose to make the maintenance of the street in the sense claimed by Kimball a material moving consideration is expressly stated before and after the words of conveyance in both the granting and habendum clauses; the latter does not yield to the former clause. "For a valuable consideration and the obligations of the city hereinafter expressed" is to be read: "For a valuable consideration and for the further consideration, distinctly understood that the strip of land hereby conveyed be accepted by the city and become a part of Robinson Street and sidewalk therein, and that the city by accepting this conveyance thereby expressly obligates itself to maintain sad strip as a part of said street and pay the expenses thereof, we hereby grant, bargain, sell, and convey (the strip) to said city to hold forever.
"The proper end of all rules of construction is to effect the intention of the parties to the instrument, and this is true of deeds as well as of other writings." Hart v Gardner, 74 Miss. 153; Haddell v. De Jet, 76 Miss. 104.
A statute giving the municipal authorities, as ours does, the "control of the construction, improvement, repair, and cleaning of the streets," is a broad one authorizing the making of new streets, the four terms governing the whole subject, from the making of a new street to its final and orderly maintenance. And "contruction," as used in the phrase in an ordinance requiring an electric railway company to deposit a certain sum of money and forfeit it in case of default in the construction within a fixed time to fully construct, equip, and commence operation, means actual building of the road, putting down rails, ties, planking, grading and paving." The answer discloses great need in grading and its probable injury to the lots.
In 12 Corp. Juris., p. 1300, notes 4 and 5, "Rational" construction; ibi, page 1301, note 87; in equity a liberal and extensive construction, as opposed to a literal and strict construction in law; Ibi, 1302 and notes.
Equity makes a distinction in all cases between that which is a matter of substance, and that which is a matter of form; if it finds that by insisting on the form the substance will be defeated, it holds it to be inequitable to allow a person to insist on form and thereby defeat the substance. R. C. L., 6, sec. 224. "The best construction is that which is made by viewing the subject of the contract as the mass of mankind would view it; for it may be safely assumed that such was the aspect in which the parties themselves viewed it." Sec. 232. As to the construction placed by the parties. see 241.
In the light of the allegations of the answers and cross-bills, if the court please, as well as of the most unusual and conflicting recitals contained in the body of the deed, conflicts not only in the words used, but in the usual acceptation of the ordinary meaning of those words, and in the legal effect thereof, it is most respectfully submitted and urged that the true legal construction or equitable interpretation and effect of the deed as a whole means what appellant claims it to mean. If not clear on its face, then it is within the doctrine of necessary further inquiry as to the contemplation of the parties to be ascertained by contemporaneous and subsequent conduct, conditions, and any pertinent facts and circumstances as to what was meant, understood and really agreed to by the use of the words and language found in the deed, especially so of the "maintain" as therein used, or improperly so, as it oftentimes has been, as the law books testify. The rule of construction by aid of such inquiry is indicated also in Freeman v. Wilson, 51 Miss. 329, as are all of the rules requiring investigation of all the pertinent facts to ascertain in justice and right what the parties intended.
The word "maintain" in the sense used in the deed means to hold or keep in any particular state or condition; to support; to sustain; to uphold; to keep up; to keep possession of; not to surrender; to continue; not to suffer to cease or fail; to improve and to bear the expense thereof, since to give the word "maintain" its strict meaning would render that clause of the deed meaningless, it being the duty of the municipality to maintain the street in the general ordinary way. In point 5 Words & Phrases, pp. 4277, 78, 80; 25 Cyc. 1664. See State v. Light & T. Co., 91 Wash. 519; Ibi, 158 P. 85, where "maintain" is sometimes synonymous with "construct" and "bearing the expense of." (This from reference only.) The city cannot collect for the water and sewer connections. City of Jackson v. Hart, 78 So. 780, June 10, 1918.
There is no purpose to contradict, vary, change or alter the deed, but have it correctly construed according to its real intent and meaning, and construed on its face, it is first respectfully urged, must be in accord with the appellant's view. If not found favorable to that view in testing the question by the face of the deed as a whole, then appellant should be let to his proof.
Reading the deed in conjunction with the historic allegations of the answers and cross-bill, the reasonable deduction appears to be about this: Kimball lived in the hills and hollows and gullies out on the old country road on a lot carved out of the old parental homestead; a street car company had constructed its lines that far along that road, and he desired the extension of Robinson Street along his front to replace the road for the advantage of convenience and the prospective increase, no doubt, in the value of his property. The live, growing, and progressive city, always ready to expand and lengthen and open its thoroughfares, was ready to deal with him and others in his neighborhood along the country road and the car line. So, no matter who bantered the trade, but the answer says that the city proposed it, and no doubt that in making the proposition, the city had...
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