New Orleans Great Northern R. Co. v. Belhaven Heights Co

• Decision Date: 12 April 1920
• Docket Number: 20955
• Citation: 84 So. 178,122 Miss. 190
• Court: Mississippi Supreme Court
• Parties: NEW ORLEANS GREAT NORTHERN R. CO. v. BELHAVEN HEIGHTS CO

84 So. 178

122 Miss. 190

NEW ORLEANS GREAT NORTHERN R. CO. v. BELHAVEN HEIGHTS CO

No. 20955

Supreme Court of Mississippi

April 12, 1920

March 1920

1 DEEDS. Grantee's failure to perform a promise not amounting to a condition no ground for cancellation.

The grantor in a general warranty deed cannot maintain a bill in equity for cancellation on account of a mere failure of the grantee to perform a promise forming in whole or in part the consideration, unless such promise amounts to a condition.

2 RAILROADS. Deed to railroad construed not to contain any condition precedent or subsequent.

The general warranty deed in the case at bar examined, and found to contain on its face no express condition, either precedent or subsequent.

3. RAILROADS. Nonperformance of parol agreement to build a railroad on the land conveyed is no ground, for cancellation.

In the absence of any element of fraud or oppression, an executed conveyance for a stated money consideration will not be canceled for nonperformance of a contemporaneous parol agreement to build a railroad upon the land granted, where the testimony fails to show a willful intention not to perform such parol promise at the time the deed is executed.

4. RAILROADS. For nonperformance of agreement to build railroad alternative relief on denial of cancellation held not proper.

In a suit to cancel a deed to a railroad company for a right of way, no alternative relief in damages for nonperformance of a contemporaneous parol agreement to build a railroad upon the land conveyed can be granted, where the deed itself recites a money consideration that is actually paid, and the nonperformance complained of is not incorporated in or made a condition in the written conveyance.

5. EQUITY. Equity rule as to forfeiture stated.

It is a settled rule that equity abhors a forfeiture, and a court of equity will not lend its aid to enforce a forfeiture or divest an estate for breach of a condition subsequent where the vendee is in possession.

APPEAL from chancery court of Hinds county, HON. LAMAR F. EASTERLING, Chancellor.

Suit by the Belhaven Heights Company against the New Orleans Great Northern Railroad Company to cancel complainant's deed to defendant or for damages. Decree for complainant for damages, but denying cancellation, and defendant appeals. Decree reversed, and bill dismissed.

Decree reversed and bill dismissed.

Green & Green, for appellant.

In order that a condition subsequent may be created, the breach of which will cause a forfeiture, it must be created "by express terms or by clear implication," and it must clearly appear that such was the intention of both the parties to the deed. Soria v. Harrison County, 96 Miss. 109, 50 So. 443, 33 Cyc. 174.

In Soria v. Harrison County, supra, the deed was upon the consideration of one dollar, and provided that the land was to be for use as a court house and jail and its use for other purpose was held not to create a breach of condition subsequent which defeated the title.

"Subsequent conditions are those which operate upon an estate already vested, and rendered it liable to be defeated. All that remains in the grantor is the position of reverter or right of entry upon condition broken. The estate will remain defeasible until the condition be performed, destroyed or barred by the statute of limitations or by estoppel.

"Equity will never lend its aid to enforce a forfeiture or a penalty or to divest an estate for breach of subsequent condition, even though upon special ground or removing clouds. The rescission of a contract for fraud should be claimed within reasonable time, promptly upon information had of its violation or fraudulent misuse for diversion, or the right will be lost by acquiescence. Complainant cannot remain silent, and without protest, permit erection of buildings and afterwards allege these acts as violation and breach of contract." Memphis & Charleston R. R. Co. v. Neighbor, 51 Miss. 412.

In that case, the express provision of the deed was to have and to hold the same, with all the appurtenances for the proper use of said railroad company in constructing all warehouses, water stations, machine shops, wagon yards and for other depot purposes, generally; and the bill averred that the grantor was induced to make the deed by fraud and representation to him by the company that he would make these erections, which would greatly enhance the value of the land. There was a demurrer to the bill in that case and the demurrer was overruled by the court below, and on appeal, the supreme court reversed the decree and dismissed the bill.

In Gadberry v. Sheppard, 27 Miss. 203: A deed conveyed certain lands to the grantees, "under the designation of 'Commissioners to locate a seat of justice in the county of Yazoo.' Held, that these words did not justify construction that an estate, defeasible in its nature, was conveyed."

"To make an estate upon condition subsequent the grant must contain the condition in express words, or by clear implication, because such conditions are not favored in law."

An absolute deed in fee cannot be converted into a deed upon condition that the railroad would be built within a reasonable time. Butterfield Lumber Co. v. Guy, 92 Miss. 361; Forrest Products Co. v. Buckley, 66 So. 279; E. W. Gates Lumber Co. v. Britton, 62 So. 448; R. R. Co. v. Camper, 88 Miss. 817, was a donation of the land to the railroad company with this express clause in the deed: "It is distinctly understood that the above mentioned lots and rights of way are donated for railroad purposes only." There, the grantor undertook to set up, that at the time of the execution of the deed, it was understood that the railroad company would build its line from Meridian to Jackson, through Hattiesburg and thereby enhance the value of his lots, but that this route was abandoned and a branch line only was built to Hattiesburg, and only a part of the premises granted was used for railroad purposes, and Camper continued to be in possession of the property. The court there held, that the terms of the deed controlled and that whatever of the land was not used for railroad purposes, and abandoned by the railroad company, would be forfeited.

In the case at bar there is no such provision in the deed. It provides: "Whereas, the N. O. & G. N. R. R. Co. desires to acquire for its railroad purposes, the hereinafter described property, now for and in consideration of the sum of ten dollars cash in hand paid, etc." There is no provision in the deed that the grant is made by the grantor for railroad purposes only.

The deed only recites that the railroad company desires to acquire for its railroad purposes the land thereinafter described.

Where land was purchased "to have and to told as long as said lands are used for railroad purposes and no longer," the railroad company did not lose its right to the land by permitting the grantor to use so much of the land as it was not using, until the company should need it. Graham v. St. Louis & C. R. R. Co., 66 S.W. 344. A temporary non-user is not a breach of the condition. Hickox v. Chicago & R. R. Co., 78 Mich. 615; Monat v. Seattle, etc. R. R. Co., 47 P. 233; Buck v. County of Macon, 75 Miss. 589, holds: "A deed conveying land to trustees of a township for school purposes, and for no other use is not forfeited by a non-user for two and a half years, even if the deed be assumed to be upon a condition precedent."

There the deed was for a consideration of one dollar, and the grant was "the following described lots or parcels of ground . . . for the use of a school and no other use," and the court, while not expressly deciding that the failure to use it for a school would work a forfeiture, expressly decided that the non-user for a short period of time would not work a forfeiture.

The leases to Massie do not, as averred in the bill, show any abandonment of the property for railroad purposes. On the contrary, they expressly recite that the leases were not to interfere with the railroad, and was only of that part of the land not immediately needed for tracks, and Massie was to clear and grade the right of way. The continued cultivation of the right of way, without the consent of the railroad company, by the owner of the servient estate, gives no right as against the company unless the company's rights are barred by the statute of limitations. Wilmont v. Railroad Co., 76 Miss. 374.

It is common custom in this state to permit the use of the right of way outside of the tracks to the occupier of the adjoining premises, to cultivate the crops. Besides, the proof shows that the leases to Massie had expired in 1914, four years before the suit was brought and that the improvements on the land by Massie had been removed. The averment of fraud in the bill, while denied in the answer, is, in itself, insufficient. It is an averment in the alternative and the allegation of fraud must be made specific.

There is no limit of time expressed in the deed within which the railroad is to be built, and as in the timber deeds where there was no limit of time within which the timber was to be removed, the fee passed, and it was held inadmissible to prove that representations were made by promise procuring the deed, that the timber was to be removed within a reasonable time. Such a stipulation by parole would violate the statute of frauds, by reading into the deed provisions which it did not contain.

Counsel relied below upon the case of Henderson v. Railway Company, 17 Texas, 560. In speaking of Henderson v Railway Company, the court in City v. Lane, 32 Texas, 414, says: "The object of the suit in Henderson v. Railway Company, was to cancel certain deeds. The deeds were executed by appellant to Jones, in...