King v. Norfolk & W. Ry. Co

• Decision Date: 12 September 1901
• Court: Virginia Supreme Court
• Parties: KING. v. NORFOLK & W. RY. CO.

39 S.E. 701

99 Va. 625

KING.

v.NORFOLK & W. RY. CO.

Supreme Court of Appeals of Virginia.

Sept. 12, 1901.

DEEDS—CONSTRUCTION—CONDITIONS SUBSEQUENT—EJECTMENT—STATUTES.

1. A judgment sustaining a demurrer to both the declaration and bill of particulars will not be reversed for having included both, where the counsel agreed in writing that the case as made by both should be considered.

2. A suit construing certain deeds and the rights of the parties thereunder will not be considered res judicata of an action of ejectment founded on an alleged breach of the conditions in the deeds.

3. Two deeds dated 1S4S and 1852, conveying land to a railroad company, contained provisions that the company should have no right to sell or convey the land to any other person, or to use any portion of the land for any purposes other than those strictly connected with the business of the road, with no right to erect any buildings on the land for residence of the agents or servants of the company. An action of ejectment was brought by the alienee of the grantor on the ground that the provisions were conditions subsequent, and had been breached, entitling him to a re-entry. Held, that the pro-visions were covenants, and not conditions subsequent, and hence an action of ejectment was properly dismissed as not the proper remedy for breach of covenant.

4. Code, § 2730, declares that plaintiff in ejectment shall state whether he claims in fee, for life, or for years, specifying the duration of his term; and section 2748 provides that the verdict in such suit shall specify the estate found in the plaintiff. Held that, where plaintiff's estate was only a right to use land conveyed to a railroad company until the company should desire to use the same for railroad purposes, his estate, being one for an indefinite period, which period was not capable of being stated, was not an estate for which ejectment would lie under such sections.

Error from corporation court of Bristol.

Action by Joseph L. King against the Norfolk & Western Railway Company. From a judgment in favor of defendant, plaintiff brings error. Affirmed.

Bullitt & Kelly, D. D. Hull, Jr., and Curtin & Haynes, for plaintiff in error.

Jos. I. Doran and Fulkerson, Page & Hurt, for defendant in error.

HARRISON, J. This action of ejectment was brought to recover the possession of certain real estate in the city of Bristol. The declaration is in the usual form, and unexceptionable on demurrer. In response to the demand of the defendant, and in pursuance of the court's order requiring the same, the plaintiff filed a statement or bill of particulars setting forth fully the grounds of his claim. The demurrer was directed to the declaration and the bill of particulars as being insufficient in law. This court has held that the bill of particulars required by section 3248 of the Code is no part of the declaration, and a demurrer will not lie for defects in such bill. George Campbell Co. v. Angus, 91 Va. 438, 22 S. E. 167. Under this ruling it would be necessary to reverse the judgment of the trial court sustaining the demurrer, but for the agreement in writing between counsel, filed with the record, that we may consider on demurrer the case made by the declaration as supplemented by the bill of particulars.

Considering the case thus made, we are of opinion that the defendant in error cannot rely upon the case of King v. Railroad Co., 90 Va. 210, 17 S. E. 868, as an adjudication of all the questions raised in this litigation. The scope of that decision was to construe the deeds of 1848 and 1852, and the rights of the grantor and grantee thereunder, irrespective of any allegation of a breach by the grantee of the alleged conditions of the deeds. See pages 215 and 217 of the court's opinion, and pages 870, 871, 17 S. E.

The gravamen of the complaint in this case is alleged breaches of conditions in the deeds, which, it is insisted, entitle the plaintiff in error to an absolute recovery of all the premises.

It appears from the bill of particulars that about 50 years ago, by two separate deeds, James King, Sr., through whom the plaintiff in error claims title, conveyed to the Virginia & Tennessee Railroad Company, the predecessor in title of the defendant in error, the lands now in controversy, for railroad purposes. The two deeds referred to are dated, respectively, June, 1848, and June, 1852, and the language material to the present consideration is as follows:

First deed: "Provided, however, that the said company shall have no power to sell or convey said land to any other person, nor shall the said company have the right to use any portion of said land for any other purposes than those strictly connected with the business of the road, nor shall said company have the right to erect any buildings on said land, designed for residence for the agents or servants of the company or for any other person."

Second deed: "Provided, however, that the said company shall have no power to sell and convey said land, or any portion of it, to any other person whatsoever; nor shall they have the right to use any portion of said land for any other purpose than those strictly connected with the business of the road."

The contention of the plaintiff in error is that these provisions, taken together, constitute conditions subsequent, the nonfulfillment of which results in a forfeiture of the estate, giving the grantor the right to re-enter and possess himself of his former estate; and that this right has passed to the plaintiff in error as alienee of the original grantor.

Conditions subsequent are not favored in law, because they tend to destroy estates. When relied upon to work a forfeiture, they must be created by express terms or clear implication, and are strictly construed. If it be doubtful whether a clause in a deed be a covenant or a condition, the courts will incline against the latter,...