Wright v. Hardy

76 Miss. 524 | Miss. | 1898

Terral, J.,

delivered the opinion of the court.

The contention of the parties, as stated and argued in their briefs, seems much broader than that arising upon the pleadings. The question apparently is, whether the chancery court can fix a' valuation upon the property upon which a percentage rent is to be paid, where the parties have failed to make the valuation, and the time for the re-valuation has passed.

The appellee plants himself: (1) Upon the common law doctrine that the conveyance of Louis A. Ragsdale to Sallie A. Roberts is a conveyance in fee upon a condition subsequent, and that, as at common law a condition can be reserved only to the grantor or his heirs, the conveyances of Louis Rags-dale, Jr., to the Land & Industrial Company and of Ella C. Coffee to complainant, Wright, determined the condition, and the estate has become absolute in the defendant, discharged of all conditions; (2) that Ragsdale, after the conveyance to Sallie A. Roberts, had only a right of entry, that' could not be reserved to a stranger or assigned, and that the assignment of it by Mrs. Coffee to Wright destroyed the right of entry altogether, and the estate became absolute in the defendant; (3) he insists that, if he is liable to rent, the complainant has a full and adequate remedy at law, or in his own hands.

Complainant’s counsel says that § 2539, code 1892, gives a remedy to assignees denied to them by the common law, and that he rightly appeals to the chancery court for its assistance in the premises. The defendant denies the application of § 2539 to a conveyance in fee like this, and reasserts thfe destruction of the conditions by reason of the assignments. We are cited to an array of ancient authorities on this subject, which may be consulted from the briefs of 'learned counsel. We content ourselves with briefly stating the conclusions we have reached.

It is evident, we think, that § 2539 applies only to estates for life or years, and not to estates in fee. It is substantially the statute of 32 Henry VIII., ch. 34, which the judges in Lewes v. Ridge, Cro. Eliz., 863, held did not apply to estates in fee or in tail, but only upon leases made for life or for years. The section, by the very terms, applies to “lands let to lease,” and lands let to lease are those conveyed only for life, years or at will. 2 Bl. Com., *316, 317; 2 Tho. Co., *403.

The conveyance here being without the use of the word heir, is, under our statute, a conveyance of the fee from Ragsdale to Roberts upon conditions subsequent, and, among other conditions, upon that of the payment of rent at stated periods. At common law the right of entry for conditions broken could be made only by the grantor or his heirs; it was a mere chose or right in action, and could not be reserved to a stranger or assigned.

The strongest expression of common law rule is found in Coke’s Institutes, wherein he says: “For avoiding of maintenance, suppression of right, and stirring up of suits, nothing in action, entry, or re-entry, can be granted over; for so, under color thereof, pretended titles might be granted to great men, whereby right might be trodden down and the weak oppressed, which the common law forbiddeth, as men to grant before they be in possession.” 2 Tho. Co., *85.

The right of re-entry for non-payment of rent is not an estate in land; it is a mere right or chose in action. De Peyster v. Michael, 6 N. Y., 506.

The condition of society in this countiy has never been such as to require the importation of this rigid common law doctrine, and if it has been brought hither, and has not been displaced by the civilization of the age, it is extirpated, root and branch, by § 660 code 1892, which provides that “the assignee of any chose in action may sue and recover the same in his own name, if the assignment be in writing.

Section 2433 code 1892 permits any interest in land to be conveyed by writing, and § 660 code 1892 gives to assignees of grantors in fee and to the assignees of covenants expressed in conveyances in fee the like remedies for the estates assigned, and upon the conditions and covenants contained in them, that the common law gave to the original parties and to their privies in contract. In equity the rule has always been that a chose in action is assignable. 1 Pom. Eq., sec. 168.

The covenants, therefore, of Mrs. Roberts, to pay the rents expressed in the indenture, by which she took conveyance in fee, were not discharged or determined by the conveyance of Ragsdale, Jr., to the land company, or by the conveyance of Mrs. Coffee to Wright. These covenants, legally and equitably, are as fully binding between the assignees of this estate in fee and the assignees of the covenants expressed in the indenture of conveyance as they were between L. A. Ragsdale, Sr., and Sallie A. Roberts.

The assignees of the estate being bound by the covenants of Sallie A. Roberts to pay rents according to a valuation to be made every ten years, and no rent having been paid since the third ten-year period began, the chancery court, to avoid any difficulty and impending lawsuits in the matter, may fix the valuation upon which the rent is to be paid. We do not regard the time of the valuation to be so material as that the valuation must be called for at the beginning of the ten-year period, or else the revaluation should .be considered as waived. Under the contract equity and justice require that a rent shall be paid on the value of the lots, exclusive of improvements, to be taken every ten years. The right to a revaluation has not been forfeited or waived by its not having b^en made or insisted upon earlier.

Reversed and remanded.