Blair v. St. Louis, Keokuk & Northwestern Railway Co., 92 Mo. App. 538

92 Mo. App. 538 | Mo. Ct. App. | 1902

BLAND, P. J.

I. Plaintiff as a witness testified that he had knowledge of the fact that the railroad was completed and in operation over his land early in April, 1871, and that it had been continuously operated by defendant and its predecessors up to the present time. In Nóvember 1875, the company then owning the road, executed a mortgage on the entire road and its franchises to secure its bonded indebtedness. This mortgage was foreclosed and the road bought in by C. E. Perkins for the bondholders in 1887. In 1888, Perkins sold and conveyed the road to the defendant company.

After the execution of the mortgage in 1875, but before the foreclosure proceedings were commenced, plaintiff executed to -the mortgagor and then owner of the road, his deed to the right of way over his lands in consideration of three hundred dollars cash and for the future performance by the grantee and its assigns of the covenants agreed to be kept and performed. This deed was recorded on March 12, 1888, and before the trial was found among the files in the office of the defendant company. No evidence was offered showing how. or under what circumstances the defendant came into possession of the deed and there is no direct evidence showing that- defendant expressly accepted the deed or that it cláims under it. Defendant denied that it claimed under the deed and its contention is that it does not claim under the deed, but that it claims the land under the license to occupy the land for railroad purposes created before the execution of the deed, which license it claims was transferred to it through the foreclosure-proceedings of the mortgage of 1875 and the deed of Perkins.

Any title to land acquired by a mortgagor after the exe-eution of bis mortgage tbereon inures to tbe benefit of tbe mortgagee, but any alienation of bis title does not injuriously affect tbe mortgage. He may strengthen tbe title of tbe mortgagee but be can not inciunber tbe land or place any burden tipon it that will bind the mortgagee. Stewart v. Perkins, 110 Mo. l. c. 668. Tbe title conveyed by tbe mortgage was not a complete title. It was nothing more than a bcense to bold and use tbe right of way over plaintiff’s lands for railroad purposes. Tbe plaintiff, notwithstanding this license, was entitled to compensation for bis lands and tbe title in tbe railroad company could not become complete until it made compensation. Provolt v. Railroad Company, 57 Mo. 256; Green v. Railroad, 82 Mo. 653. Por tbe purpose of acquiring a complete title tbe mortgagor, tbe St. Louis, Keokuk & Northwestern Railroad Company, agreed with plaintiff as to what bis compensation should be. This agreement is expressed in plaintiff’s deed and tbe suit is to enforce a specific performance of one of tbe covenants contained in that deed. Since tbe execution and delivery of tbe deed tbe defendant and those under whom it claims title have retained possession of tbe deed and of tbe right of way and have at no time offered to fully compensate plaintiff for bis lands but have enjoyed the use of tbe same as though compensation in full bad been made.

Tbe title was completed by tbe execution and delivery of tbe deed. Tbe defendant has succeeded to that title and has enjoyed its fruits uninterruptedly and without objection and it seems to us is estopped in these circumstances to deny that it does not claim title under tbe deed. Having silently enjoyed tbe fruits of plaintiff’s deed since 1888 it is too late for it to deny that it is bound by tbe covenants in tbe deed. Green v. Railroad, supra. Plaintiff’s compensation for bis title has not been fully paid and can not be until tbe covenants to be performed by tbe grantee or its assigns are kept and performed or a money consideration is paid in lieu of performance. The defendant, as tbe assignee of tbe original grantee in tbe deed and owning title under it, is obliged by the covenants of the deed.

U. The plaintiff asks for specific performance of the ■agreement to construct and maintain a passway for cattle under defendant’s track and a water gate andja. cul-de-sac from the right of way to low-water mark on the bank of the Mississippi river. Specific performance of this covenant would require ■supervision by the court so long as the right of way over plaintiff’s land shall be used for railroad purposes, for the covenant is perpetual and is to plaintiff, his heirs and assigns. The duties to be performed by the defendant, to build and maintain the water gate, etc., are continuous and can not be enforced at once and by one decree. In such circumstances the earlier authorities are that a court of equity will not decree a specific performance for the reason the court can not turn itself into a supervisor of construction. 2 Story’s Eq. Juris. (10 Ed.), sec. 726; Port Clinton R. R. Co. v. Cleve. & Tol. R. R. Co., 13 Ohio St. 544. In a note to section 1405, 3 Pomeroy’s Eq. Juris., among the cases enumerated where courts can not enforce the specific performance by its decrees, are classed cases containing continuing covenants. Cited in support are Collins v. Plum, 16 Ves. 454; City of London v. Nash, 3 Atk. 512; Caswell v. Gibbs, 33 Mich. 331.

In Blanchard v. Railroad, 31 Mich. 43, the consideration clause in a deed for a right of way required the railroad to build and maintain a depot or station house on the lands described for the convenience of the public, etc. The court, after discussing another feature of the case, said in respect to a specific performance of the contract: “Supposing it to be admitted that the provision in the grant is susceptible of being understood in a promissory sense and is capable of being considered as in the nature of an agreement, by the defendant with the complainant, is it capable of specific enforcement by the court?” After an able and exhaustive review of the authorities the court answered the question in the negative on the ground, among others, that the enforcement of performance would require “a series of daily acts to extend through all future,” and the court further said: “A full and complete award which, according to the settled course of the courts and the principles on which alone it intervenes, is the only admissi-' ble one, would be utterly impossible upon any data now offered or that can now be offered.”

In The Marble Company v. Ripley, 10 Wall. 339, it was ruled that specific performance of a contract would not be decreed where the duties to be fulfilled by the grantee are continuous and involve the exercise of skill, personal labor and cultivated judgment.

In Strang v. Richmond P. & C. R. Co. et al., 93 Fed. Rep. 71, it was held that equity would not specifically enforce a contract to build a railroad.

In the South Wales R. R. Co. v. Wythes, 5 DeG., McN. & Gord. 880, the court refused to decree a specific performance of a contract to construct a branch railway on the ground that it would require the supervision of the court.

Numerous other cases hold that a court of equity will not enforce a.contract that requires continuous supervision. Among them are Railroad v. Bodenschatz-Bedford Stone Co., 39 N. E. Rep. 703; McCarter v. Armstrong, 8 L. R. A. 625. Yet the better considered and more recent cases, to prevent a travesty of justice, have decreed the specific performance of contracts that require supervision and the making of subsequent orders for the purpose of carrying out the original decree.

In the Union Pacific R’y Co. v. Chicago, etc., R’y Co., 163 U. S. 569, the Supreme Court of the United States enforced, by decree, for specific performance, a complicated agreement made by one railroad company to permit another to use its tracks and other running arrangements. The objection that a court of equity will not decree specific performance of a contract requiring supervision or successive orders was overruled. Sucb contracts, it was ruled, would be enforced to “prevent the intolerable travesty of justice involved in permitting parties to refuse a performance of their contract at pleasure, by electing to pay damages for their breach.”

Joy v. St. Louis, 137 U. S. 1, enforced two agreements, one between St. Louis County R. R. Co. and St. Louis, K. C. & N. R’y Co. and the other called the “tripartite agreement”, between the commissioners of Eorest Park in the city of St. Louis, the said county company and the said Kansas City company. The enforcement of these two contracts was likely to require continuous supervision by the court and several supplemental decrees.

The old doctrine on that subject was noticed and virtually repudiated.

In Southern Pine Fibre Co. v. North Augusta Land Co., 50 Fed. 26, a land company had promised a manufacturing company that if the latter would locate its plant or factory on the former’s property, the former company would donate to the manufacturing company a certain amount of land and build or •cause to be built a side track, and this agreement was enforced.

There is nothing difficult of performance to carry out the agreement. The structures provided for are sufficiently described and are of a character that they may be erected by any ■ordinary mechanic and supervision by the court would not be necessary should the defendant in good faith undertake to carry out the court’s decree. But should supervision become necessary there is nothing in the way to prevent the court from making further orders in the exercise of its equitable jurisdiction or to exercise its equitable powers, if it should become nec■essary to enforce its decree.

III. The covenant is to put in the water gate on or before the first day of October, 1880. The suit was begun in the month of August, 1895, so that more than ten years elapsed from the date the right of action accrued before the suit was brought. The defendant interposed the plea of the statute of limitations in bar of the action. The general rule in respect to covenants in deeds is that the statute of limitations begins to run from the accrual of the cause of action. 8 Am. and Eng. Ency. of Law, p. 224; Spoor v. Green, L. R. 9 Exch. 99; Mitchel v. Kepler, 75 Iowa 207. In Missouri it has been held that while the covenant of seizin (which runs with the land) is broken the moment the deed is delivered, the statute of limitations does not begin to run until substantial damages have accrued. Chambers’ Adm’r v. Smith’s Adm’r, 23 Mo. 174; Dickson v. Desire’s Adm’r, 23 Mo. l. c. 163; Blondeau v. Sheridan, 81 Mo. 545; Wyatt v. Dunn, 93 Mo. 459.

In State ex rel. v. Tittman, 134 Mo. l. c. 168, it is said: “That while a cause of action upon a covenant accrues upon the concurrence of any breach thereof, the statute of limitations is not set in motion where such breach is merely formal, so as to prevent recovery of substantial damages subsequently resulting; but that the statute begins to run as to those damages from the time they occur.”

This is not a suit to recover damages for a breach of the covenants in the deed. Such damages, if any, may or may not have accrued within the statutory period. The suit is for the specific performance of the covenant to build a water gate, etc. The covenant to build was to be performed on or before October 1, 1880. The breach as to a specific performance was therefore made on that date, and plaintiff’s right to sue for a specific performance accrued at that date. Town of Huntington v. Letus, 64 N. Y. 558. His right of action for specific performance of the covenant is therefore barred by the statute of limitations, wherefore the judgment is reversed.

Barclay and Goode, JJ., concur.