Maxwell v. Mississippi Valley Co. ( 1909 )

Whiteield, O. J.,

delivered tbe opinion of the court.

The court’s construction of the deed executed by W. O. Maxwell and Mary L. Maxwell, on the 4th of September, 1902, was correct. This deed conveyed a strip of land one hundred feet wide, and contained no condition precedent whatever. But the construction of the two deeds executed by the same parties on the 29th of December, 1902, one for a strip of land one hundred fifty feet in width, and the other for a -strip of land fifty feet in width, was not correct, as they both do contain conditions precedent. The consideration expressed in both these deeds, as moving from the railroad company to the grantors, is that the railroad company shall establish and maintain a depot, and it is expressly said: “Now, in consideration of the above condition, upon the construction and completion of said railroad we hereby grant,” etc. This is the language of the deed conveying the land one hundred fifty feet in width, and in the other deed a part of the consideration is expressed to be, also, the establishment and maintenance of a depot to be erected and maintained, etc., and yet the court held that these deeds contained no condition whatever, and refused to allow Maxwell to testify whether those conditions and considerations, had been complied with. All this was error. See Railroad v. Baldwin's Ex’rs, 78 Miss. 59, 29 South. 763.

Reversed and remanded.