Thornton v. City of Natchez

• Decision Date: 02 July 1906
• Citation: 88 Miss. 1,41 So. 498
• Court: Mississippi Supreme Court
• Parties: MARCELLUS E. THORNTON ET AL. v. CITY OF NATCHEZ

41 So. 498

88 Miss. 1

MARCELLUS E. THORNTON ET AL. v. CITY OF NATCHEZ

Supreme Court of Mississippi

July 2, 1906

FROM the chancery court of Adams county, HON. WILLIAM P. S VENTRESS, Chancellor.

Thornton and wife, citizens of the state of North Carolina, and others, being non-residents of Mississippi, were the complainants in the court below; the city of Natchez was the defendant there. From a decree sustaining defendant's demurrer to the bill of complaint and dismissing the suit the complainants appealed to the supreme court.

The suit in the federal court referred to in the opinion is reported, Thornton et ux. v. City of Natchez, 129 F 84, and the action of the supreme court of the United States in denying a writ of certiorari to the circuit court of appeals, fifth circuit, is reported, Thornton et al. v City of Natchez, 197 U.S. 620.

The deed under which the appellants claimed the land sued for because of an alleged breach of its supposed condition, is in words and figures following, to wit:

"MISSISSIPPI TERRITORY, ADAMS COUNTY.

"This indenture, made the 4th day of January, in the year of our Lord eighteen hundred and seventeen, between William Rutherford and John P. McNeil, merchants of the city of Natchez, in the Mississippi territory, of the first part, and the president and selectmen of the city of Natchez in said territory, of the other part, witnesseth: that the said parties of the first part, for and in consideration of the sum of five hundred dollars to them in hand paid by the parties of the second part, at or before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, and the said parties of the second part and their successors forever released and discharged therefrom by these presents, have granted, bargained, sold, released, conveyed, and confirmed, and by these presents doth grant, bargain, sell, convey, and confirm unto the said parties of the second part, and their successors forever, all those lots and parts of lots situated in the said city of Natchez, being lot number four, and parts of lots numbers one and three, in square number thirty, as designated on the general plan or plat of the said city of Natchez, which lots are part of lot one included in the following boundaries, to wit: Beginning at the corner of lot number four in said square, at the end of Main street, thence along Main street to the corner of lot number two in said square, being the lot on which is the Roman Catholic burying place; thence at right angles along the line of lot number two to the southeastern corner thereof; thence at right angles along the line of the last mentioned lot, belonging to John Henderson, Esq., on which the powder magazine is erected; thence at right angles through lots one and three aforesaid to the southeastern side of said square; thence at right angles along the line of said square to the beginning, together with all and singular the appurtenances, hereditaments, privileges and advantages whatsoever unto the said described premises belonging or in any wise appertaining; and also all the right, title, interest, property, and claim whatsoever, either at law or in equity, of them, the said parties of the first part, in or to the same.

"To have and to hold the said lots or parcels of ground and described premises, with the appurtenances, unto the parties of the second part, and their successors forever, for the uses and purposes of a burying place and so to be forever kept, used, and enclosed, in a decent and substantial manner, and to and for no other use or purpose whatever.

"And the said parties of the first part, for themselves, their heirs, executors, and administrators, do covenant, grant, promise and agree to and with the said parties of the second part and their successors to warrant the title to the above mentioned and described premises, and any and every part thereof with its appurtenances, unto the said parties of the second part and their successors, against the said parties of the first part and their heirs, and against all and any other person or persons lawfully claiming or endeavoring to claim the same, by, from or under them, or any of them, and the parties of the first part shall and will covenant and by these presents bind themselves forever to defend the title to said lands.

"In witness whereof the said parties of the first part have hereunto set their hands and seals the day and year first above mentioned, January 4, A.D. 1817.

"WILLIAM RUTHERFORD. [SEAL]

"JNO. P. MCNEIL. [SEAL]"

Other facts are stated in the opinion of the court.

Affirmed.

Wade R. Young, for appellants.

If the deed written at that time by one of the most eminent jurists of the state, without words of inheritance, expressing in the clearest and most forcible words of which the language admits the intent of the parties, created an estate in fee simple absolute, and not a trust, it must be that the legal lore of the past is at fault, and that we are to have new and different rules of construction. It is argued that the deed does not create a trust, because the grantees are not designated as trustees, but our supreme court has said that no form of words is necessary to create a trust.

And it is argued that it does not create a condition subsequent, because no condition was stated in terms, but the very authorities cited by the United States circuit court of appeals, when the deed was before it, show that technical words of condition are not necessary to create a condition subsequent.

It is argued that there can be no reverter because there is no clause of re-entry, but we have the authority of Chancellor Kent to the effect that a clause of entry is not necessary, and there is no case to be found in the books in which a grant of land as a burying place was ever made with a clause of re-entry, as the very purpose of the grant implies perpetuity.

It is argued also that the deed must be held to have vested an estate in fee simple, because a valuable consideration was paid, but as has been shown, the expressed consideration was only partial, and we have the authority of Fonblanque and the English authorities to the effect that it does not matter that there was a valuable consideration paid, as the uses are held to be correspondent to the consideration.

We are to ascertain the intent of the parties from the provisions of the deed, and in case of ambiguity from the surrounding circumstances, by the known rules of construction, but in no case is the expressed intent to be contradicted or varied.

If the words of limitation are to be construed as creating a covenant rather than a condition, it does not help the case for the defendants. The court cannot compel the city to maintain a burying place which, as stated in the bill, had become an eyesore and a public nuisance, and which might be detrimental to the public health and safety, but in such case the fee reverts to the original proprietors, as the legislature and the board of mayor and aldermen had no power to abolish and prohibit the sole use for which the defendants held the land, in violation of the prohibition of the constitution of the United States, that no state shall pass any law which impairs the obligation of contracts.

Where the absolute fee in lands is acquired by a municipal corporation, although with an expressed intention of using it for a special purpose, the property acquired may be applied by legislative authority to a wholly different public object; but where the grant to the corporation is only for a specified use, the grantor retains the reversionary estate. By the absolute extinguishment of the sole use for which the plaintiffs held this land, the fee reverted to the original proprietors. Mayor, etc., of Newark v. Watson, 56 N. J. Law, 667 (29 A. 487).

"The grantee of an estate upon condition holds generally in subordination to the right of the grantor to enter for condition broken. Tenure exists between them, and for that reason a mere constructive possession by the grantee, such as accompanies the legal title, ought not to be deemed a denial of the grantor's right to enter. Some act must be done by the grantee which is tantamount to a disavowal of his obligation to perform the condition. Union Pac. Ry. Co. v. Cook, 98 F. 281."

The court did not say that such disavowal must be brought to the knowledge of the grantor, because in that case it was unnecessary, but if the case of the grantee upon condition comes within the scope of the doctrine, it follows necessarily that a clear, positive and continued disclaimer and assertion of adverse right, to be brought home to the party, are indispensable before foundation can be laid for the operation of the statute.

There is nothing in the law or jurisprudence of this state which conflicts with the doctrine, and all the opinions of this court in such cases have conformed to the doctrine.

In the case of Davis v. Bowmar, 55 Miss. 765, the court said: "To acquire a title by possession two things must concur, to wit: an occupation, actual or constructive, and a claim of ownership. Neither is effectual without the other. No continuance of occupation, no matter how long protracted will avail unless accompanied by claim of title; and every presumption of law is that the occupant holds in subordination, and not adversely to the true owner. Not only does the law presume that he who has entered without title had done so in recognition of and subordination to the title of the owner, but, having affixed this prima facie presumption to his entry, it will not allow him to convert it into an adverse one, except by acts which plainly demonstrate its hostile character. Where the entry is shown to be permissive, its origin will give tone and character to all...