Thornton v. City of Natchez , 88 Miss. 1 ( 1906 )

Oalhoon, J.,

delivered the opinion of the court.

This whole controversy arises out of the proper construction of a deed executed by William Rutherford and John P. McNeil in the year 1817, which conveyed to the president and selectmen of the city of Natchez a certain lot of land in that city, reciting that the consideration was “for and in consideration of the sum of five hundred dollars to them in hand paid,” and then showing that the grantors had “bargained, sold, released, conveyed and confirmed, and by these presents do 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,” describing the property; and then it proceeds under the conveying clause, “and also all the right, title, interest, property and claim whatsoever, either at law or in equity, to them, the said parties of the first part, in or to the same”; and then proceeding, “to have and to hold' the said lots or parcels of ground and described premises with the appurtenances to the parties of the second part and their successors forever for the uses and -purposes of a burial place, and to be forever kept, used and enclosed in a decent manner, and to and for no other use or purposes whatsoever”; and then proceeds, “and the said parties .of the first part, for themselves, their heirs, executors and administrators, do covenant, grant, affirm and agree to and -with the said parties of the second part and their 'Successors, that they, said parties of the second part and their successors, the above mentioned and described premises and any part thereof with 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 to claim by, from or under them or any of them, will covenant and by these presents forever defend.”

One of the main controversies is, of course, as to whether the use described in the deed to be for a burying place, and for no other use or purpose whatever, is or isi not a condition subsequent. The other controversies will be shown further on in this opinion.

The complainants, except one, a new one, appearing first in this new litigation in the state court, filed a bill about the same subject matter and against the same defendants on July 25, 1902, in the circuit court of the United States for the southern district of Mississippi against the city in possession, praying’ the same relief, which is a decree that the land revert to the complainants, and that defendants be ordered to reconvey and pay rents from the 1st day of January, 1890, or that defendants be perpetually enjoined from using the land for any other' purpose than that of a burying place.

To this- bill, in the federal court, the defendants demurred: First, because the bill showed no equity. Second, because it shows that one of the grantors died in 1819 and devised all the residue of his estate, real and personal — that is, all of his estate except the land in controversy — to be equally divided between his brother, John Rutherford, and his three sisters named in the bill, but does not show to whom he devised the land in controversy, and the complainants are not shown by the bill to have any interest whatever in the land involved in this suit. Third, that the court is without jurisdiction of the suit, it being practically an action of ejectment for the land.. Fourth, that John Rutherford is averred to have died in North Carolina in 1880, testate, and it is not shown that his will has ever been admitted to probate in this state. Fifth, the bill does not show that the interest of John P. McNeil, one of the grantors in the deed, has ever been acquired by the complainants, or either of them, the assertion in the bill that the complainants are the sole surviving legal representatives of John P. McNeil being a mere statement of the conclusions of the pleader, and that interest is shown -to be outstanding, and he is a necessary party, and, if dead, his heirs or devisees are necessary parties. Sixth, said John P. McNeil is shown by the bill to have been the surviving partner of the mercantile firm of William Rutherford & Company, and the land, presumptively partnership assets, and as such became the property of said McNeil as surviving partner, and his interest appears to be outstanding and never acquired by complainants. Seventh, by the terms of the deed the fee passed absolutely to the grantees. Eighth, complainants are barred by laches. Ninth, complainants are barred by the ten years statute of limitation. Tenth, the bill does not show that the cause of action was fraudulently concealed, but does show, in fact, that defendants exercised such public ownership of the land as to make it impossible that complainants with reasonable diligence would not have known of their rights more than ten years before the beginning of this suit. Eleventh, want of knowledge cannot excuse from the bar of limitation, because no fraudulent concealment is shown, the averment on that subject being too vague and indefinite. Twelfth, divers other causes to be shown at the hearing.

This demurrer was argued and taken under advisement by Judge Niles, of the federal court here, and it was decreed as follows:

“It is now 'ordered, adjudged and decreed that the said demurrer be, and the same is, hereby sustained, and- the bill of complaint in this cause is dismissed. 'Let the defendants go hence and have and recover of and from the complainants the costs of this suit, to be taxed, and for which execution may issue.”'

The complainants then, in the federal court, took an appeal to the Lnited States circuit court of appeals and assigned as error: 1. The court .erred in its conclusion that complainants' had full and complete and adequate remedy at law, and that ■equity was without jurisdiction. 2. That the court erred in its conclusion that the claim was barred by the statute of limitation. 3. That the court erred in its conclusion that the deed conveyed a fee simple title without condition or reservation. 4. That the court erred in sustaining the demurrer to the bill of complaint.

On this appeal the United States circuit court of appeals decreed an affirmance and delivered an opinion through Justice Parlange, which opinion appears in the record, and also appears reported in 129 Fed. Rep., pp. 86, 87, and is as follows:

“We are satisfied, after full consideration of the matter, that the grant was not made on condition subsequent. Such a condition is not favored in law. 4 Kent’s Oom., marg. p. 129. Even when a provision is stated in terms to be a condition, a court will determine for itself, not from the statement alone, but from the whole deed or grant, whether a condition was really intended. In this case no condition was stated in terms. A consideration of $500 was paid the grantors, and the grant was not made purely and exclusively from motives of charity or benevolence. No provision whatever was made for re-entry by, or reversion to, the grantors or their heirs or legal representatives. The land was maintained as a public burying place for nearly three-quarters of a century. There is nothing averred in the bill from which we could gather that the grantors intended that the land should be maintained as a public burying place literally in perpetuity, and without regard to the necessities and welfare of all the generations which were to follow. In the absence of any declaration of such an intention, and of anything, in the grant from which it could be reasonably inferred, we are to conclude that the grantors meant that the land should be used for the purpose for which they desired it to be used as long as it was right and proper to do so, in view of the nature of the grant and of its purposes.

“But, in any event, it is beyond question that the grantors made no record of any intention on their part, either expressed or intimated, that the land should ever under any circumstances revert to them or to their representatives. The appellants have not stated a case entitling them to the reversion. They have not even shown that they have an interest or a right in the further carrying out of the purposes of the grant.

“The matter in hand was carefully considered in the able opinion in Rawson v. Inhabitants of School District No. Five in Uxbridge, 89 Mass., 125 (83 Am. Dec., 670). Also see Greene v. O’Connor (R. I.), 25 Atl. Rep., 692; 19 L. R. A., 262 (see notes) ; Sohier v. Trinity Church, 109 Mass., 1-19; Episcopal City Mission v. Appleton, 117 Mass., 326; Barker et al. v. Barrows, 138 Mass., 578; Stanley v. Colt, 5 Wall., 119 (18 L. ed., 502).

“We are furthermore fully satisfied, after consideration of the statute of limitation of Mississix>pi, that the appellants have by their laches debarred themselves from prosecuting this action. The conversion of a public burying ground into a public park, and the other acts which the appellants -averred in support of the fraud and concealment alleged by them, -could not but have been open, public and notorious. Concealment of those acts- would have been impossible. The- bill, it is true, avers that the appellants had neither notice nor knowledge. But such an allegation, in a matter like the one in hand, is a mere conclusion of the pleader, not binding on demurrer, unless facts are stated from which the court can determine for itself whether the conclusion was correctly drawn. See Wood v. Carpenter, 101 U. S., 135-140 (25 L. ed., 807).

“The acts complained of took place in the year 1890. 'Either the appellants knew of those acts prior to the year 1901, or else they could have had the knowledge by exercising reasonable diligence. The appellants, having allowed such a lapse of time to occur before bringing their action, cannot be heard to complain at this late hour. In view of the statutes of limitations, of Mississippi, we do not understand that the appellants’ counsel contends that the appellants were entitled to actual notice. But see Elder v. McClaskey et al., 70 Fed. Rep., 529 (17 C. C. A., 251).

“There are other matters averred in the demurrer which have much force, but we deem it sufficient to rest our affirmance of the decree appealed from on the two grounds stated.”

After this opinion and affirmance, the complainants sought certiorari from the supreme court of the United States, which denied it without an opinion. So, in the federal court, the complainants there were solemnly adjudicated to have no rights on a bill on which they stood without any application to amend. As to these that adjudication is conclusive in all forums. It. is conclusive as to all things they pleaded or could have pleaded. 24 Am. & Eng. Eney. Law (2d ed.), 714; Phillips v. Wormley, 58 Miss., 398; Straw v. I. C. R. R. Co., 73 Miss., 446 (18 South. Rep., 847) ; Weatherby v. Pearl River Lumber Co., post, 41 South. Rep., 65; Smedes v. Isley, 68 Miss., 590 (10 South. Rep., 75); Davis v. Hart, 66 Miss., 642 (6 South. Rep., 318) ; Perry v. Lewis, 49 Miss., 443; Lorance v. Platt, 67 Miss., 183 (6 South. Rep., 772); Bell v. Medford, 57 Miss., 31; Chiles v. Champenois, 69 Miss., 603 (13 South. Rep., 840).

After the proceedings stated in the federal courts had ended, this bill was filed in the state court to accomplish the same purpose, with one new complainant introduced. It sets up nothing which was not or could not have been set up' in the federal court, and so, as to' the old complainánts, as we have said, the adjudication in that forum is conclusive.

This new bill is demurred to on the same ground's as, was the-old one, with the additional one that the bill shows at large upon its face the proceedings in the federal courts; and they show res adjudicaba as to those complainants who were such in the federal court suit.

The deed before us is clearly based on a valuable, consideration. In its conveying clause it grants the fee in the land, and the concluding clause is a covenant of general warranty. Equity cannot be invoked merely to enforce a forfeiture or to divest an estate for breach of a subsequent condition against a vendee in possession. It abhors forfeitures and looks with hostility on conditions subsequent. To give the right of reverter through the courts it should be expressed in the instrument that, by devotion of the land to a purpose other than that indicated, the whole estate should revert to the grantor and his heirs. “The words in the deed are quite as consistent with an intent to repose a trust and confidence * * * as they are with an intent to impose a-condition which should compel, on pain of forfeiture, to maintain the premises as a burial place for all time.” 7 Allen, 125.

In support of the foregoing propositions, see M. & C. R. R. Co. v. Neighbors, 51 Miss., 413; Cross v. Carson, 44 Am. Dec., 742 and notes; Rawson v. School, 83 Am. Dec., 671 and notes; Packard v. Ames, 16 Gray, 327; Rankin, etc., Church v. Edwards, 204 Pa. St., 216 (53 Atl. Rep., 770) ; Davis v. Jernigan (Ark.), 76 S. W. Rep., 554; City v. Wilcox (S. D.), 98 N. W. Rep., 88; Carroll v. Trustees (Ky.), 47 S. W. Rep., 617; 13 Cye., 683 and notes; Coburn v. Coxeter, 51 N. H., 158; Barker v. Barrows, 138 Mass., 578; R. R. Co. v. Ragsdale, 54 Miss., 200; Miller v. Tunica, 67 Miss., 651 (7 South. Rep., 429) ; V. & M. R. R. Co. v. Ragsdale, 54 Miss., 209.

Of them, cases will be found covering every postulate -stated. We do not stop to classify them.

It is also- plainly deducible from these authorities that the most that can be claimed here, if that can be claimed, is to hold the city to an implied covenant to use the land forever for burial purposes only. We do not hold that this may be done, but we do hold that equity has nothing to do with this, and that such a claim must be, if anywhere, at law, and seasonably urged. We think the present proceeding barred by the ten years statute of limitations. We cannot approve the idea that these non-residents are in any better shape than if they lived in the city of Natchez. The action of the municipal legislature was open, notorious, flagrant, adverse and continuous in the hostile claim. It cannot be contended that the board was guilty of any “concealed fraud” under Code, § 2731. Concealment of what was done here was plainly impossible. If we could imagine a “concealed fraud,” then, clearly, under the same section, it, “with reasonable diligence, might have been first known or discovered” before the statute began to run. Under this sec. 2731 and secs. 2719-2762 we hold the bar complete. Barker v. Barrows, 138 Mass., 578; Elder v. McClaskey, 70 Fed. Rep., 529 (17 C. C. A., 251).

The city in this record is not in the category of a trustee of an express trust, even if such could save the bar of the statute on the facts averred. We decide none of the other grounds of demurrer.

Affirmed.