Mobile, J. & K.C.R. Co. v. Kamper

• Decision Date: 06 July 1906
• Citation: 41 So. 513,88 Miss. 817
• Parties: MOBILE, JACKSON & KANSAS CITY RAILROAD COMPANY v. JOHN KAMPER
• Court: Mississippi Supreme Court

41 So. 513

88 Miss. 817

MOBILE, JACKSON & KANSAS CITY RAILROAD COMPANY v. JOHN KAMPER

Supreme Court of Mississippi

July 6, 1906

FROM the chancery court of, second district, Perry county, HON THADDEUS A. WOOD, Chancellor.

Kamper the appellee, was complainant in the court below; the railroad company, the appellant, was defendant there. From a decree overruling a demurrer to the bill of complaint the defendant appealed to the supreme court.

Kamper the complainant, sought to cancel a deed made by him to the appellant railroad company conveying to appellant certain lands in the city of Hattiesburg as a donation by general warranty. The following clause appears in the deed, to wit "It is distinctly understood that the above mentioned lots and rights of way are donated for railroad purposes only." The bill alleged that at the time the deed was made it was understood that the appellant would build its line from Mobile, Ala. to Jackson, Miss. "through" Hattiesburg, but that subsequently this route was abandoned and a branch only of said road built "to" Hattiesburg. It alleged that appellee was interested in the development of the territory through which the road would pass, and that he made the donation to appellant in aid of the road as originally projected. It also charges the abandonment by the appellant of certain parts of the land donated.

Decree affirmed and cause remanded.

May & Flowers, for appellant.

The deed executed by Kamper is a general warranty deed. It is a conveyance to the railroad company of the fee. The entire estate was transferred upon the delivery of this instrument. Nothing was left in Kamper.

While the covenant of warranty is unequivocally expressed in the instrument, the last clause of the deed does fix a limitation upon the use of the property. Without this last clause in the instrument, the deed would be absolute, and the railroad company would own the entire estate free from every sort of limitation or condition.

What is the effect of the provision in the deed, "It is distinctly understood that the above lots and rights of way through lots are donated for railroad purposes only?"

It may as well be admitted that this deed was given upon the condition that the property should be used for railroad purposes. If the company had built no road at all, it is idle to contend that it could still hold the property. We think that this provision contains a condition subsequent. A failure to build the road and therefore a failure to use the property for railroad purposes would of necessity forfeit the title to the land. The deed could hardly be construed to mean that the property was vested absolutely in the railroad company, to be held by it for all time upon a covenant running with the land that it should be used for none but railroad purposes. The intention of the parties is too plain. Such transactions are too frequent. The object aimed at could only be reached and such a deed only be made to subserve its purpose by construing it to mean that the land was conveyed for the purpose of encouraging the building of a railroad, and that if the purpose to build a railroad should be altogether abandoned, then the title would fail. This construction makes this provision a condition subsequent.

We understand the rule to be that covenants are favored by the courts, Post v. Weil, 115 N.Y. 361 (22 N.E. 145; 5 L. R. A., 422), and that conditions of defeasance are odious. Paschall v. Passmore, 15 Pa. 295.

In a somewhat similar case, where the lots were conveyed "for the use of a school and no other use," this court left the question undecided as to whether a condition subsequent was created. Buck v. Macon, 85 Miss. 580 (37 So. 460). In that case the court said that a mere non-user for two and one-half years could not defeat the estate. In the opinion in that case there is an exhaustive citation of authorities.

If the deed does not describe a condition subsequent, upon the failure of which the right to claim a forfeiture would accrue to the grantor, then this bill cannot be maintained, since the chancery court will not lend aid in a case of this kind. Memphis, etc., R. R. Co. v. Neighbors, 51 Miss. 412.

For further discussion of the question as to whether this provision creates a covenant or a condition subsequent, see Clement v. Burtis, 121 N.Y. 709 (24 N.E. 1013); Los Angeles University v. Swarth, 54 L. R. A., 266.

The deed executed by Kamper is plain on its face. There is no occasion for construction of its terms. It purports to convey this land to the railroad company in fee with a limitation upon its use. It is a complete contract. The appellee proposes to show that the instrument does not contain all of the contract. He attempts to write into this deed other undertakings and agreements upon the part of the railroad company. While the land is conveyed absolutely, the restriction being that it shall be used for railroad purposes only, it is proposed to show by parol testimony that there was another understanding about it to the effect that the road should be built from Mobile to Jackson by the way of Hattiesburg and across this land.

The appellee recognized the difficulty of showing these other agreements. He saw that he stood face to face with the rule which prohibits the introduction of parol testimony to vary or contradict or add to a written instrument. In order to get around this rule and to open up the contract to the introduction of new terms by parol testimony, he proposes to come in through the "consideration door." He undertakes to so write his bill as to make it appear that these promises and undertakings on the part of the railroad company to build the line to Jackson from Hattiesburg constituted the controlling consideration for which he executed the deed.

While it is true as a general rule that the consideration of an agreement may be shown to be other than that named in the instrument, this rule has its limitations. If the consideration itself is in the form of a promise or a contract, it cannot be changed by parol testimony any more than any other contractual provision.

"The statement of a consideration may, on the other hand, sometimes be itself an operative part of a contractual act, as when in the same writing the parties set out their mutual promises as consideration for each other. Here the word consideration signifies a term of the contract and hence the writing alone can be examined. 4 Wigmore on Evidence, sec. 2433; Baum v. Lyon, 72 Miss. 932 (18 So. 428); Drug Co. v. Planters, etc., Co., 86 Miss. 423 (s.c., 38 So. 209); Cocke v. Blackburn, 58 Miss. 537; Pine Grove Lumber Co. v. Interstate Lumber Co., 71 Miss. 944 (s.c., 15 So. 105).

Brame & Brame, and W. H. Hardy, for appellee.

Complainant's rights being granted, it is obvious that there is no remedy at law. Appellee is in possession of the lands. By misrepresentation and promises never kept, he has been induced to part with the legal title. Although in possession and the real owner, he cannot deal with the land because of this cloud upon the title. Equity has full and exclusive jurisdiction. Brandon v. Brandon, 46 Miss. 222; Railroad Co. v. Neighbors, 51 Miss. 312; Railroad Co. v. Ragsdale, 54 Miss. 200.

Compla...