Russel v. Town of Hickory , 116 Miss. 46 ( 1917 )

Stevens, J.,

delivered the opinion of the court.

The appeal in this ease is from a decree overruling the demurrer of appellants to the bill of complaint exhibited against them by the town of Hickory, appellee herein. The suit is by the town of Hickory, a municipal corporation, by and through its mayor and board of aldermen, the material averments being that the town of Hickory, “through its aldermen and trustees of the Hickory high school,” is the owner of certain schoolhouse property described in the bill; that the defendants, Frank and L. M. Russell, “have gone over and took possession of said property, and have fenced and wired the same up; ” that the town is entitled to an injunction restraining the defendants from going upon or trespassing upon the property; that a decree should be rendered “removing any clouds from the title of complainants to the aforesaid described land or the building thereupon situated so long as the said school'is maintained and operated in Hickory for the benefit of the citizens of Hickory and the surrounding community. ’ ’ The bill avers that two acres of land were conveyed by one Frank Russell to the trustees of Hickory Institute and their successors in office in the year 1889; and while the bill does not specifically so aver, it appears from all the averments and admissions therein, that the defendants claim title from the same source. This claim is based upon the alleged forfeiture of the following provision'in the deed: “It is hereby agreed and understood that the above-described two acres of land are deeded to the trustees of Hickory Institute, and to their successors in office, for the purpose of maintaining and operating a school for the. benefit of the community and surrounding country, and when abandoned for educational purposes then the said two acres of land revert back, to the party of the first part.”

The bill claims that the property- in litigation has been used by the town as the Hickory high school, and is managed by trustees appointed by the mayor and board of aldermen. Upon the bill as filed a mandatory injunction was issued enjoining the defendants from going on or over, or trespassing upon, the premises in question, from interfering with or taking possession thereof, or exercising any ownership over the property whatsoever un- . til the further orders of the court. The demurrer submits that .the bill does not show any title or ownership in the complainant, the town of Hickory, and, secondly, that, taking all of the averments of the bill together, it is shown that the property has ceased to be used for the purposes for which it was originally dedicated, and that the title .has reverted. The second ground of demurrer seizes upon certain recitals in the bill stating that the town had purchased a new site for the Hickory high school and erected thereon a commodious and modern brick building, and had removed the teaching department to the new building. The only question to determine is the sufficiency of the bill.

In all suits to confirm title or to remove clouds it is the duty of the complainant to deraign title. This duty is expressly imposed by statute. In deraigning title, a general statement that the complainant is the real owner is insufficient. Jackson v. Bank, 85 Miss. 645, 38 So. 35.

The bill does exhibit the original deed from Frank Russell to the trustees of the Hickory Institute, executed in February, 1889, but no other conveyance is shown. At the time this conveyance was executed the municipality did not constitute a separate school district, and there is no showing that the trustees of Hickory Institute or their sucessors in office ever turned the property over to the municipality of Hickory to be used as a public free school or public high school in and for the municipality, or that the trustees of Hickory Institute ever made any conveyance to the town or any one else. There is no definite showing as to how or when the town of Hickory became interested in the subject-matter of this litigation. The property was originally conveyed “for the benifit of the community and surrounding country.” The original conveyance then was not for the benefit of the town of Hickory alone, and the inference is that the Hickory Institute was being conducted as an educational institution, not only for the benifit of the inhabitants of the town, but also of the entire community. We are left in doubt as to whether the Hickory Institute was or was not incorporated. Subsequent to the execution and delivery of this deed section 4011, Code of 1892, was enacted, authorizing a municipality to become a separate school district. Section 3343, Code of 1906, expressly authorizes municipalities “to erect, purchase or rent” schoolhouses, and it may be that this property has been deeded to the municipality for school purposes or turned over to the town to be operated for educational purposes. If so, the bill does not so aver.

Complaint is made in the assignment of errors of the action of the court in issuing a mandatory injunction to remove the defendants from the property and to prevent them from going upon or exercising in any manner control over it. The only decree appealed from, however, is the decree overruling the demurrer, and the propriety of the court’s action in issuing an injunction is not necessarily presented for our decision. The record does not show a motion to dissolve this injunction on hill and demurrer, or any application whatever on the part of ■defendants seeking a dissolution. The argument is made on behalf of appellants that this is really not a bill to remove a cloud upon the alleged title of complainants, but a hill primarily for a mandatory injunction. It is contended that the bill shows upon its face that the defendants are in possession, and that a mandatory -injunction- to oust them of possession would be improper. It is further pointed out that the bill does not charge that the defendants are mutilating, destroying, or in any wise damaging the property, or that they are threatening to do so. The law is well settled that a defendant in possession under a bona-fide claim of title should not summarily he removed by mandatory process of the chancery court, especially where there is no averment that irreparable damage will be done the complainants. The bill does pray for an injunction, as indicated, but there is also a general prayer that the claim of defendants be canceled as a cloud upon the complainants’ title.

For the reasons indicated, the decree of the learned chancellor will be reversed, the demurrer sustained, and the cause remanded, with leave to the complainant to amend the bill generally within thirty days after receipt of the mandate by the clerk of the court below.

Reversed and remanded.