Rannels v. Rowe

• Decision Date: 29 March 1906
• Docket Number: 2,163
• Citation: 145 F. 296
• Parties: RANNELS v. ROWE et al.
• Court: U.S. Court of Appeals — Eighth Circuit

145 F. 296

RANNELS v. ROWE et al.

No. 2,163

United States Court of Appeals, Eighth Circuit.

March 29, 1906

Julian Laughlin (M. L. Stephenson and E. C. Hornor, on the brief) for appellant.

Augustin Boice (John B. Jones, on the brief), for appellees.

This was a suit brought by Rannels to quiet his title to several thousand acres of wild and unoccupied lands in the state of Arkansas. All of the parties interested in the controversy claim title through Edmund McGehee. Part of the property in controversy was patented directly to him as swamp lands in 1858 by the state of Arkansas. The remainder was patented by the state to the heirs and legal representatives of McGehee in 1883, 18 years after his death, but this difference is immaterial since, if for no other reason, it appears that the conveyances to his heirs and legal representatives were by way of confirmation of an equitable title previously existing in him. Ë 298

McGehee died in Mississippi in 1865 and under his will one-half of his estate went to his wife and the remainder to three children subject to the adjustment between the latter of an advancement made to James G. McGehee, a son. It does not appear that the half of the estate devised and bequeathed to the children was sufficient in value to leave a surplus for division among all three after the two of them were put upon equal terms with their brother James. Consequently the case should be considered as though James took nothing under the will.

In 1869 the Legislature of Arkansas passed an act which recited that large quantities of lands had been sold to the state for unpaid taxes and remained unredeemed, thereby preventing the improvement of the same and affecting the revenues of the state, and provided that whenever the owner of any lands sold or forfeited to the state for nonpayment of taxes should donate or subscribe the same in aid of the construction of any railroad, and such fact was reported to the auditor of public accounts, a certificate as in case of redemption should be granted, and thereupon the tax claims of the state on the lands so subscribed or donated should be remitted and discharged, subject, however, to a condition allowing the state to reassert its claim in case the railroad should not be constructed within a time specified.

In 1873 three executors of the will of McGehee, among them the widow and the son James, conveyed the lands in controversy by two executors' deeds to the St. Louis & Memphis Railroad Company, a corporation organized under the of Arkansas. These deeds contained coven ants of warranty by the grantors as executors and also conditions that the grantee should build and complete its railroad within three years thereafter. It is conceded that these deeds were invalid as against the devisees of McGehee who did not join in the execution thereof, for the reason that no authority to make them had been obtained from any court of competent jurisdiction. All of the debts of the testator were paid and his estate was afterwards settled up leaving the lands to pass according to the terms of the will. The complainant acquired title mediately from the railroad company. The defendants, Adela V Boice and Alberta J. Sharpe, claim under purchases made from the devisees, including the widow, in the years 1881-- 1883. The other defendants are not interested.

The railroad company made various ineffectual efforts between 1873, and 1880 to build and complete its road and after having expended about $280,000, upon the roadbed did nothing further by reason of financial embarrassment until 1889 when it made a contract with another railroad company which resulted in the building of the road substantially upon the line of the original survey. This contract was authorized by an Arkansas statute (Mansf. Dig. Secs. 5526, 5530). Notwithstanding the railroad company failed to construct its road within the three years contemplated by the conditions of the executors' deeds nothing was done in the way of re-entry or declaration of forfeiture for condition broken, by the McGehee devisees or their subsequent grantees, including the defendants, prior to the completion of the railroad, unless the execution by the devisees of the deeds of 1881-- 1883 to the defendants' ancestors in title would have that effect.

The Circuit Court entered a decree dismissing complainant's bill.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

HOOK Circuit Judge, after stating the case as above, .

The deeds to the railroad company, under which complainant claims, were executed by three executors and they contained covenants of warranty by them in their representative capacities. One of the executors was the widow of the deceased owner of the lands and under the will she took a half interest therein. The deeds were void as executors' conveyances because no authority to make them had been procured from the court having jurisdiction; but they nevertheless operated as conveyances of the widow's individual interest. This results from the doctrine of estoppel. A trustee acting within his powers does not render himself liable on his contracts and conveyances; but whenever he exceeds his powers and undertakes to transfer and convey without authority he becomes personally answerable to the grantee on his covenants. Coe v. Talcott. 5 Day (Conn.) 88, 92; Morris v. Watson, 15 Minn. 212 (Gil. 165); Tarver v. Haines, 55 Ala. 503; Allen v. DeWitt, 3 N.Y. 276, 280; Brown v. Edson, 23 Vt. 435; Poor v. Robinson, 10 Mass. 131; Heard v. Hall, 16 Pick. (Mass.) 457. Another executor who joined in executing the deeds was a son of the testator and also a devisee, but by reason of an advancement made to him which the will required to be adjusted it does not affirmatively appear that he took any interest in the lands upon the settlement of the estate. The other devisees not being parties to the deeds were not concluded by them, and their interests, aggregating one-half of the whole, afterwards became vested in the defendants Boice and Sharpe by sundry conveyances. The remaining part of the controversy is therefore confined to the half interest in the lands which formerly belonged to the widow.

A most important question in the case is that of the character of the executors' deeds-- whether they were upon conditions precedent that were never performed or upon conditions subsequent that required affirmative action to create a forfeiture of the estate conveyed. In each deed the consideration is recited as being a specified sum of money, one-fourth in first mortgage bonds and three-fourths in the capital stock of the railroad company, paid by it, and 'in consideration of the building and completion of said railroad in three years from date hereof. ' At the end of the habendum clause is this:

'Provided that said railroad shall be built and completed within the three years after date hereof.'

The warranty clause concludes with these words:

'Subject only to the conditions that if said railroad be not built and completed within three years from date hereof said lands shall revert to Edmund McGehee's heirs and administrators and this deed to be void.'

The defendants contend that the foregoing conditions are precedent, and that as the railroad was not built and completed within the time limited no estate ever passed from the widow to the railroad company. The complainant's claim is that the conditions are subsequent and that therefore the title passed and vested in the grantee when the deeds were delivered subject to a right of forfeiture which was not asserted in time. In a condition precedent no title passes or...