84 So. 178 | Miss. | 1920
delivered the opinion of the court.
Appellee sued in equity to cancel a .certain deed executed by it to the New Orleans Great Northern Railroad Company for a, strip of land two hundred! feet wide in the northeast part of the city of Jackson, Miss., as described in the deed, to be used as a right of way. The bill avers that one Anderson, as the agent and representative of the railroad company, stated and represented to Mr. Coman, secretary of appellee company, that if the complainant, would donate or sell to the railroad company the strip of land in question, the railroad company would within a reasonable length of time construct a steam railroad for the transporation of passengers and freight over and along the said strip of land, and that the construction and operation of the road would enhance the value of the appellee’s adjoining lands in that vicinity; that, acting upon the said representations and promises of appellee’s authorized agent, the complainant executed the deed for a stated consideration of ten dollars; that no part of the consideration had been paid; that the railroad company, although an unreasonable length of time had elapsed, has failed to build the said railroad at any point on or along the said strip, but has leased a portion of the lands for farming purposes; that the promises and representations of appellant’s agent were false and misleading1 and made for the purpose of inducing complainant to donate the right of way at a grossly inadequate price. The bill further contains allegations of fraud. The prayer of the bill is that the deed be canceled, or that complainant be awarded a decree for the fair value of the land as damages. Those recitals in the deed material to the present inquiry are as follows:
“Also hereby, for the consideration aforesaid, acknowledge satisfaction for and hereby release said railroad company, its successors and assigns, from all damages to me, and to any and all of any .abutting property from the construction and operation of its railroad upon, over, and across said hereby conveyed land, and over and across any of the streets of said city.”
General and special demurrers were interposed to the bill and overruled. Thereupon appellant filed an answer, and the cause proceeded to trial upon bill, answer, and proof. Mr. Coman, as a witness for the complainant, testified that Mr. Anderson, approached him, stated that he had observed that all attempts to build the railroad had been a failure, and that he had made trips to New York City and was authorized to state that the road would be built and that work would commence within less than ninety days after the right of way through this property was obtained. Negotiations led to the definite agreement stated in the deed; that is that Belhaven Heights Company a corporation agreed to execute a general warranty deed in consideration of ten dollars; the deed was accordingly executed, and a voucher for the ten dollars was given and paid. At the same time Mr. Anderson asked for and received an option upon other lands owned by the Belhaven Heights Company, and for
There is testimony tending to prove that Belhaven Heights Company conveyed to other parties lands adjoining and with reference to the right of way now sought to be cancelled, and one of these parties intervened in this suit and objected to the cancellation of the railroad right of way; also that the right of way as conveyed was marked out by stakes, and that' the city of Jackson located its pumphouse and filtration plant for the city waterworks on the right of way in controversy and acquired the necessary lands from appellee company with the view ultimately of securing coal over the line of the said railroad company. The testimony further shows that the railroad company encountered obstacles in acquiring the right of way in and through Jackson and that in order to secure the projected right
It will be observed that the chancellor denied a cancellation of the deed, but granted the alternative prayer for relief in damages. There is practically no conflict in the testimony. The main inquiry is whether the decree is justified by the law. In Dixon v. Milling, 102 Miss. 449, 59 So. 804, 43 L. R. A. (N. S.) 916, our court expressly held that a failure of the grantee to provide maintenance or support constituting the consideration for a deed absolute in form was not sufficient to support a bill for cancellation, and the court by Judge Reed quoted with approval the following’ observations of Mr. Pomeroy:
“The general rule [is] that-, the mere failure by grantee to perform a promise, which formed the whole or part of the consideration inducing an executed conveyances, gives rise to no right of rescission in the grantor, either at law or in equity, unless such promise amounts to a condition; and it is a rule of construction that, in case the language or intention is doubtful, the promise or obligation of the grantee will be constructed to be a covenant, limiting the grantor to an action thereon, and not a condition subsequent with the right to defeat the conveyance.” Pomeroy’s Equity Jurisprudence. vol. 6, section 686.
This ruling was reaffirmed in Lee v. McMorries, 107 Miss. 889, 66 So. 278, L. R. A. 1915B, 1069, and in Lowery v. Lowery, 111 Miss. 153, 71 So. 309. In the case at bar! there is no condition expressed in the deed. The deed is a general warranty deed with the usual covenants. There is in the deed under review neither a condition subsequent nor an express- covenant to do or perform anything. The sole hope for relief must be based
“That for and in consideration of the enhanced value to be given and is contemplated to arise to our lands and other property by the location and construction of the Chicago, Texas & Mexican Central Eailway, and for the consideration of full and complete value accruing to us by this transaction in locating and maintaining a station on the lands hereby granted, we,” etc.
Notwithstanding this consideration expressed in the deed, the court by Mare, Judge, observed:
“But conditions of this character, are not favored by the courts, and in case of doubtful language or intention the promise or obligation of the grantee will be construed to be a covenant limiting the grantor to an action thereon, and not a condition subsequent with the right to defeat the conveyance. Under the authorities, we
Counsel for appellee very confidently rely upon the older case of Henderson v. San Antonio, etc., R. R. Co., 17 Tex. 560, 67 Am. Dec. 6751. An examination of the Henderson Case shows that the plaintiff executed two deeds to one Jones in trust for the railroad company when the latter should be fully organized and have .about twenty miles of road under contract and the route so located as to cross a certain’creek, etc. It would appear that the deeds were made upon false representations by an agent, and the stipulated conditions were conditions precedent. This is made certain by the observations of the Texas court in the later case of City of San Antonio v. Lane, 32 Tex. 414, where, in speaking of the Henderson Case, the court said:
“The deeds were executed by appellant to Jones, in trust, to be conveyed in fee to appellee, upon the happening of certain conditions precedent, expressed in the deeds. Jones, it was alleged, in fraud of appellant’s rights, and without the conditions precedent having happened or being complied with, conveyed the land to the railroad company.”
Under this interpretation of the Henderson Case it has no controlling application. In the case at bar there was no condition' stipulated in the deed, either precedent or subsequent. It is the settled rule in this state that equity abhors a forfeiture and 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. Memphis & Charleston R. R. Co. v. Neighbors,
The views of this court in Railroad Co. v. Kamper, 88 Miss. 817, 41 So. 513, are suggestive. There the deed expressly provided that the land conveyed was to be used “for railroad purposes only.”
But we are not directly concerned on this appeal with the right of appellee to a cancellation. The prayer for cancellation was denied by the chancellor, and there is no cross appeal. Our views lead to the conclusion that no relief whatever can be granted, and that the decree for damages should be reversed. If an improvident contract has been made by appellee company, it can blame no oné but itself. It is not beyond the realm of possibility for the right of way yet to be utilized for railroad purposes. The decree complained of will be reversed, and the bill dismissed.
Reversed, and decree here for appellant.
Reversed.