14 Kan. 616 | Kan. | 1875
This was an action of ejectment brought by Wetherell against Bridget O’Brien, Michael O’Brien, and Michael O’Neil, to eject the defendants from a certain lot or parcel of land in Wetherell’s addition to the town of Osage City. The theory upon which the plaintiff expects to recover is, as we would infer from the record and briefs of counsel, as follows: The plaintiff at one time owned the property in dispute. lie transferred the property by deed to one Theodore L. Reber, upoii the expressed condition that no intoxicating liquors should ever be sold on the premises, and that if Reber, his heirs or assigns, should ever violate this condition the property should be forfeited back to the plaintiff. The defendants hold their entire title and possession (there being two intermediate conveyances however,) solely under Reber. The defendants kept a liquor saloon on said premises, and sold intoxicating liquors thereon. The defendants expect to defeat the plaintiff’s action upon the following grounds, to-wit: First, Wetherell never owned the property in dispute; second, the language used in the deed from Wetherell to Reber, which the plaintiff supposes created an estate merely upon condition, did in fact create an estate absolute, with merely a personal covenant on the part of Reber, not running with the land, that no intoxicating liquors should be sold on the premises; and therefore, as it is not claimed that Reber himself ever violated said covenant, no action of any kind has ever accrued against either Reber, or these defendants, or any one else; fourth, these defendants do not derive their title or possession from Reber.
“This deed made the 15th day of January 1869 between the corporation of Seyfert, McManus & Co., of the city of Reading, county of Berks and state of Pennsylvania, of the first part, and John M. Wetherell, of the city of Philadelphia and state of Pennsylvania, of the second part, witnesseth: Whereas, by an act of the general assembly of the commonwealth of Pennsylvania, approved the 7th of April 1862, the parties doing business at the Reading Iron-Works in the county of*Berks aforesaid were created a body corporate under the name, style and title of ‘Seyfert, McManus & Co.;’ and whereas by a supplement to said act, «approved the 28th of February 1865, it is provided that in addition to the powers now possessed by Seyfert, McManus & Co., the said corporation shall be capable of purchasing, holding, leasing and improving lands in any of the states or territories of the United States other than Pennsylvania, and to obtain therefrom any and all minerals, and other valuable substances, whether by working or mining, leasing or disposing of privileges to work or mine such lands, or any part thereof, and to erect houses or other buildings, machinery, or works thereon,*620 and to use, lease or work the same, and to dispose of all such lands, mines, works, and the products thereof, by lease, mortgage or sale, in such manner as they may deem proper; and whereas, the said corporation of Seyfert, McManus & Co. are the owners in fee simple of certain lands in the state of Kansas under letters-patent granted by the United States of America, to-wit,” etc.
This deed was executed on the part of Seyfert, McManus & Co. by John McManus, president of the company, and John Schroeder, secretary. Now if this John McManus is the same John McManus who purchased the property from the government, we suppose the title to the property passed from John McManus to John M. Wetherell, whether it passed intermediately through Seyfert, McManus & Co., or directly from John McManus by virtue of the deed he executed for Seyfert, McManus & Co. to Wetherell. But said deed really shows that Seyfert, McManus & Co. were a corporation actually “doing business at the Reading Iron-Works in the county of Berks,” in the state of Pennsylvania, and tends more strongly to show that such corporation had power to buy, hold, and if necessary sell real estate in Kansas than otherwise. That a corporation may be created in one state with power to buy, hold and sell real estate in another state, we suppose will not be questioned. (Hunt v. K. & M. Bridge Co., 11 Kas., 434, 435; State v. Boston &c. Co., 25 Vt., 433, 443; Whitman Mining Co. v. Baker, 3 Nevada, 386; Lumbard v. Aldrich, 8 N. H., 31; Silver Lake Bank v. North, 4 Johns. Ch., 370; Angell & Ames on Corporations, §§161, 162.) But it may be claimed that this particular corporation had no such power, Such power was certainly attempted to be given to said corporation in express terms. Then why did it not possess such power? Simply, as is claimed, because it could not exercise such power in Pennsylvania, the state where it was created. But it is not shown definitely what powers it could exercise in Pennsylvania. It is true, the amendment to its charter did not give it authority to exercise any such power in Pennsylvania, but its original charter may have done so. But even if its original charter did not give
“This Indenture, made this seventh day of August in the year of our Lord one thousand eight hundred and seventy, by and between John M. Wetherell and Mary S., his wife, of the city of Philadelphia, in the state of Pennsylvania, parties of the first part, and Theodore L. Reber, of the county of Osage, in the state of Kansas, party of the second part, witnesseth: That the said parties of the first part, for and in consideration of the sum of twenty dollars to said first parties in hand paid by said second party, the receipt whereof is hereby acknowledged, and for the further consideration that the said second party, and his heirs and assigns forever, shall and will well and faithfully observe, keep and perform the following conditions and covenant, to-wit, and it is expressly agreed and covenanted, that the said party of the second part, his heirs and assigns forever, shall never bargain, sell, barter, trade, or exchange any whisky, brandy, wines, or other intoxicating liquors, (beer excepted,) at or upon the premises hereinafter described and hereby conveyed, or any part thereof, or in any house or building that may be erected thereon, nor shall said second party, or his heirs and assigns, ever at any time suffer, allow, or permit any other person or persons so to do — doth by these presents grant, bargain, sell, remise, release, alien, convey and confirm unto the said party of the second part, and to his heirs and assigns forever, all the following described tracts, pieces and parcels of land lying and being situate in WetherelPs Addition to the town of Osage City, in the county of Osage, in the state of Kansas, to-wit, Lots numbered 23 and 24 in block numbered 14, and*624 lot number 31 in block numbered 13, together with all and singular the hereditaments and appurtenances thereto belonging, or in anywise appertaining: To have and to hold the same, and every part thereof, unto the said party of the second part, and his heirs and assigns forever — subject however, and upon the express condition, that the said party of the second part, and his heirs and assigns forever, shall and will well and faithfully perform the covenants and conditions hereinbefore named. And the said John M. Wetherell, and Mary S., his wife, for themselves and their heirs, executors, administrators and assigns, do hereby covenant and agree to and with the said party of the second part, and his heirs and ■ assigns, that the said parties of the first part and their successors will warrant and forever defend the said lands and appurtenances, and every part thereof, unto the said second party, and to his heirs and assigns forever, against the said parties of the first part, and their successors, and against all and every person or persons whomsoever, lawfully claiming or to claim the same, subject however, and upon the express condition, that said party of the second part and his heirs and assigns shall and will well and faithfully keep and perform the conditions, covenants and agreements hereinbefore named. And it is one of the conditions, and a part of the consideration for the sale and conveyance of the lands hereinbefore described forever, that if said second party, or his heirs or assigns, or any person or persons by or with the knowledge, consent, or permission of said second party, or his heirs or assigns, shall at any time fail, neglect, or refuse to faithfully and fully keep, perform and observe the conditions and covenants aforesaid, or any of them, such failure, neglect or refusal shall be taken and held to be a breach of the covenant and condition of this conveyance; and any such breach of any of the conditions, covenants and agreements aforesaid shall work a forfeiture of the lands hereinbefore described to the whole and every part thereof, together with all the appurtenances thereto belonging or in anywise appertaining, and the same, the whole, and every part thereof, shall immediately revert to and become the property of the said parties of the first part, and their successors and assigns forever, as fully and completely as if this conveyance had never been made.
“In testimony whereof the said John M. Wetherell and Mary S. his wife, by John F. Dodds their attorney-in-fact, have caused this conveyance to be made, and set their hands*625 and seals to the same in the said county of Osage on the seventh day of August, 1870.
John M. Wetherell. [Seal]
Mary S. Wetherell. [Seal]
By John F. Dodds, their Atlorney-in-Fact.” [Seal.]
The foregoing deed seems plain to us beyond all question. There can be no doubt as to what was intended by the parties thereto. And while the language thereof clearly shows that it was intended by the parties that Reber should be bound by a personal covenant never to sell or permit to be sold any intoxicating liquors on the premises, yet it still more clearly shows that it was further intended by the parties that the estate in the premises should be conveyed merely upon the condition that neither Reber nor any one holding under him should ever do any act prohibited by said covenant. The deed expressly says that the conveyance is upon condition. The condition is expressly made to reach, not only Reber, but his heirs and assigns. The deed expressly says that if this condition shall ever be broken by the grantee, or his heirs or assigns, the premises shall be forfeited back to the grantor, his heirs or assigns. And of this condition the defendants had ample notice, as the recitals in their own deeds most clearly show. The estate conveyed was clearly an estate upon condition subsequent, and the condition, until broken, runs with the land, beyond all doubt. We do not in this case intend to decide whether a covenant, personal or otherwise, could be created on the part of Reber, the grantee, by a deed which he never signed; (Washb. on Real Property, Book 3, ch. 4, § 2, paragraphs 48, 49;) nor do we intend to decide whether the assigns of Wetherell, the grantor, could take any advantage of the breach of any condition contained in such a deed, (Washb. on Real Property, Book 1, ch. 14, par. 14,) for these questions are not in this case. What we do decide is, that by the language contained in the said deed from Wetherell to Reber a valid condition subsequent was created, upon the continued observance of which by the grantee, and his heirs and assigns, the estate conveyed to
These are the only questions necessary to be considered in detail. Bridget O’Brien was the principal defendant in the case, and the question asked her by the plaintiff on the trial was undoubtedly for the purpose of showing that her husband sold the liquors which he did sell with her knowledge and consent; and the question was therefore competent under the language of the deed. The admission of the testimony of the witness Curtis was not sufficiently erroneous and material, if erroneous at all, so as to require a reversal of the judgment of the court below. The sale of the liquors in this case, as in most cases, had to be proved principally by circumstantial evidence; and therefore the plaintiff proved the following circumstances by Curtis, to-wit, that the word “Saloon” was over the awning of the building where it is claimed the liquors were sold, and that the witness frequently saw persons go into the building apparently sober and come out drunk, and that this led him to believe that intoxicating liquors were sold there. If this evidence were wholly thrown out, there would still be ample evidence to sustain the verdict of the jury.
The judgment of the court below is affirmed.