Martin v. Skipwith

• Decision Date: 07 January 1888
• Citation: 6 S.W. 514,50 Ark. 141
• Parties: MARTIN v. SKIPWITH
• Court: Arkansas Supreme Court

6 S.W. 514

50 Ark. 141

MARTIN v. SKIPWITH

Supreme Court of Arkansas

January 7, 1888

APPEAL from Pulaski Chancery Court, D. W. CARROLL, Chancellor.

Decree affirmed.

F. W Compton, J. M. Moore and Geo. H. Sanders, for appellants.

1. If Russell had had the legal title at the time of the execution of the Bill of Assurances the fee would not have passed to the county by virtue of it, but the effect would have been simply to convey an easement or perpetual servitude in the land for the uses and purposes therein defined. 3. Wash. Real Property, p. 333. The county at this date was incapable of being the grantee of a fee simple title. 26 Ark. 37; 96 U.S 308; 4 Ark. 473; 42 Id., 54; 32 Id., 575.

Review the acts of Congress and Territorial legislation and contend that there was no act authorizing a fee simple title to be made to a county until the act of March 20, 1839. See acts 1837. Hence the grant by Russell was intended as nothing more than a common law dedication of the lots to Pulaski county for the uses and purposes set out and defined in the bill of assurances. The whole instrument supports this construction. It was without consideration. It was made for the benefit of the public. It was limited and restricted to the uses and purposes specifically set out. It inhibited alienation in express terms. It was made to the court or commissioners in trust for the use of the county.

Now, a common law dedication leaves the fee in the grantor and conveys simply a use or servitude according to the limitations of the grant. Dillon on Mun. Corps. sec. 628 633; Washburn Easement and Serv., p. 216. A grant to the people of a county not incorporated is void. Dillon Mun Corp., sec. 560.

2. The possession of land under claim of an easement, or any interest less than the fee simple title, cannot ripen and mature into an absolute title under the statutes of limitation. The character of the holding is to be referred to the bill of assurances, or grant under which possession was taken. 62 Wisc., 512; 27 Id., 168; 29 Id., 226; 47 Ark. 320; 57 N.H. 357; 39 Wise., 548. Possession is presumed to be in subserviency to the true title, until it is affirmatively shown to be otherwise. 42 Ark. 118; 33 Id., 633; 9 N.H. 254; 7 Wheaton, 59; Angel on Lim., sec. 385; 24 Ark. 390. See also on the doctrine of adverse possession. 9 Johns., 180; 80 Mo. 125; 68 Ala. 55; 75 Ala. 482; 52 Iowa 366. Possession alone is not sufficient, it must be accompanied with a claim of a title in fee. 1 Paine, C. C., 457; Tiederman on Real Property, sees. 692-699; 9 Wheat., 241; 9 Johns., 180; 22 Iowa 351; 59 N.Y. 46; 16 Cal. 636; 39 Wise., 538; 56 N.H. 357; 38 Conn. 562; 24 Pa. 188; 37 Miss. 138; 34 Iowa 148; 12 Iowa 101; 54 Iowa 119; 47 Ind. 30.

Beebe and his heirs, after procuring the legal title from the government by acquiescing in the possession of Pulaski county for the purposes indicated in the dedication, were estopped from setting up a claim inconsistent with the uses and purposes for which the lots were dedicated, but when the county vacated the property by a sale the estoppel no longer existed as to a stranger. Wash. Easm. and Serv., p. 212; Dillon on Mun. Corp., secs. 648-633; 18 Oh. St., 221; 3 Penn., St., 436; 66 Ind. 580.

The possession and holding of the county could not have been adverse to the government, and when the patent issued to Beebe, adverse possession and hostility must have been affirmatively shown, or the presumption of law is that it was by permission and not adverse. 29 Wise., 226. A condition once shown to exist will be presumed to continue until the contrary is shown. Lawson on Presumptive Evidence, p. 163; 39 Hun., 262.

The statute did not begin to run until the sale to appellee.

Blackwood & Williams and Sam W. Williams, for appellee.

By act of October 24, 1821, commissioners were appointed to locate the county seat, etc., with power to receive donations, and the bill of assurances gave and conveyed the lots to them in trust for Pulaski county. This disposes of the contention that Pulaski county could not receive a title until incorporated in 1839.

When the jail was built on the lots the condition was performed and the conditional title became absolute. Every purpose of the original proprietors has been performed. 16 Gray (Mass.), 329; 26 Ark. 628; 53 Maine, 212.

The word forever is synonymous with permanent. 5 Iowa 1; 1 La.Ann. 316; 18 Ind. 381.

The county took possession, claims and holds under the original proprietors, having no other title, and no one but the grantors or their heirs can enter for breach of conditions. 4 Kent Corn. Marg., 131. If a condition at all the building a jail was a condition subsequent; the bill of assurances carried the title in presenti and without reservation, except subsequent failure to build the jail, and this class of conditions are not favored, and are construed strictly against the grantor. Ib. Marg., p. 129, 130. If they become impossible by the law afterward the estate is not divested. Ib., 36; 21 Wallace, 44. Breach of the condition does not forfeit the estate, there must be an entry by the grantor or heirs. Tiedeman on Real Prop., Marg., p. 277; 3 Greenl. Cruise, Marg., p. 354. The right of entry cannot be conveyed. Ib. Neither the original proprietors nor Beebe could enter now, for condition broken, for the county has complied. 5 lowa, 1; 1 La.Ann. 316; 18 Ind. 381. But the county has acquired title by limitation, which is as good as a deed. Sixty-six years of possession as a jail is a compliance with the condition. 89 Ind. 375; 7 Wall. 290. An abandonment now would not work a forfeiture. Ib., supra.

The county was made a trustee for her citizens, and no one but the cestui que trust can complain of broken trust. 2 Perry on Trusts, sec. 816; Tiedeman on R. P., 280; sec. 5, Wall. 165; 2 Washb., R. P., 2, 3; Schier 2 Trinity, 109 Mass.; 3 Gray, Mass. 517.

The keeping of the jail in the heart of a great city had become a nuisance, so declared, hence it was illegal to keep it there; that rendered performance impossible and excused it. Tiedeman on Real Prop., sec. 274 ;2 Wash. Real Prop. 8.

2. Beebe's covenant bound him to make the county a quit-claim deed. Equity will compel his heirs to do so, if necessary. But after so great lapse of time equity will presume that a deed was executed according to his covenant.

3. Beebe and his heirs are barred, for their right of action accrued on issuance of the patent in 1839. Mansf. Dig., sec. 4471.

When possession is shown the burden is on Beebe's heirs, to avoid the statute by proof of a trust relation to him. The county has shown its non-existence. 48 Ark. 278; 38 Ib., 194, Lawson on Pres. Ev., p. 163; 60 Cal. 414; 3 Wash. R. P., p. 93, sec. 27; see also 24 Ark. 377.

Adverse possession for the statutory period is of itself title, which may be used in ejectment. Angel on Lim., sec. 380 and note; 1 Ib., 381-2-3-4. And when accompanied with an equity raises a presumption of a grant. Ib. 381, 384.

By receiving the title from the original proprietors we are not estopped to deny their title. Bigelow Est., p. 289.

The right of entry of the original proprietor for breach of condition is not assignable even. It is a mere chose in action. Tiedeman on R. P., sec. 277 and note 4; 21 Wall. 346; 45 Maine, 359; 8 Peck., 284; 102 Mass. 302; 19 N.Y. 103; 6 N.Y. 506; 12 Id., 132.

Equity relieves against penalties and forfeitures, and never enforces them. Story's Eq. Jur., 1315, 1319.

MCCAIN, Special Judge. COCKRILL C. J., did not sit in this case.

OPINION

MCCAIN, Special Judge.

This is a controversy about the parcel of land occupied by the old county jail in Little Rock. The following statement of facts will serve to present the legal questions we are called upon to determine:

On the 24th day of October, 1821, the territorial legislature, by an act appointed three commissioners to locate the county seat of Pulaski county, and empowered the court of common pleas to appoint commissioners to superintend the erection of county buildings, and authorized the latter to receive donations for that purpose. Within less than thirty days from the passage of this act, one William Russell and certain of his associates, who claimed to be the proprietors of the soil, laid out and located the town which afterwards became the city of Little Rock. In addition to filing a plat of the town, Russell and his associates executed and acknowledged what they denominated a "Bill of Assurances," which was duly recorded. The bill of assurances contains this language:

"The owners and proprietors of said town of Little Rock hereby give, grant and convey to the territory, of Arkansas, and to the legislatures from time to time of said territory, and in trust for said territory, the open square of land represented on said plat by the words "territorial public square," which the proprietors as aforesaid hereby give, grant and convey to the said territory of Arkansas forever, and the legislature thereof for the use and in trust for said territory, for the consideration and upon the express condition and for the express use and purpose, and no other, that the seat of government of said territory and future state continues to be and remain upon said public square of land forever. And the said owners and proprietors in like manner, hereby give, grant and convey to the county of Pulaski, and in trust for said county to the commissioners or court that are, or may be authorized by law to locate the permanent seat of justice of said county, and contract for, erect and superintend the public buildings in and for said county, one-half square of land in said town, described * * * * And also give, grant and convey to said county, and to the commissioners or court aforesaid in trust for...