State v. Hamilton ( 1917 )

Smith, C. J.,

delivered the opinion of the court.

This suit was instituted by appellant for the purpose of obtaining the cancellation of a lease executed by the trustees of the State University to certain land owned by the state and on which the University is situated. In 1872 the trustees of the University leased the land here in question for a term of fifty years to Mrs. C. M. Malone, and Mrs. A. J. Barr became the owner thereof — that is, of the lease — by mesne conveyances. This lease was executed pursuant to a statute, passed in 1860, which provides:

“Section 1. Be it enacted by the legislature of the state of Mississippi, that the trustees of the University of Mississippi he, and they are hereby authorized and empowered, to lease for a term of years, any part of sections No.-, township eight, range three west, lying east of the Mississippi Central Railroad, and being known as the tract of land on which the University of the state is located, to suitable persons, for the purpose of having residences or hoarding houses erected thereon, for the accommodation of students, and under such restrictions as the hoard of trustees may impose: Provided, that it shall not he lawful for any person to erect or keep a business house for the sale or disposition of merchandise on said lands.”

In 1880 the laws relating to the University were brought forward in the Code of that year as section 745, which provides.:

“The University of Mississippi, incorporated 24th of February, A. D. 1844, shall continue to exist as a body politic and corporate by that name and style, with all its property, real and personal, and with all the franchises, rights, powers and privileges heretofore conferred on it by law, or properly incident to such a body, and necessary to accomplish the end of its creation; and may receive, hold and dispose of all real and personal property conveyed to it for such purpose.”

In 1892 the trustees of the University granted to Mrs. Barr an extension of the lease formerly made to Mrs. Malone and now owned by her for a term of twenty-five years, beginning at the expiration of the first term, at a rental of “five dollars a year from the time of extension to the end of the extension,” the new lease or extension to he forfeited upon failure of the lessee to pay any installment thereof. Both of these leases were assigned by Mrs. Barr to appellee, and the effort here is to cancel the second. One of the grounds upon which this is sought to be done is that the board of trustees was without power to execute it.

While the question is not without difficulty, we are of the opinion that the power granted to the trustees of the University by chapter 118, Laws of 1860, to lease lands, is a continuing one, and therefore was not exhausted as to each tract of land when a lease thereof was made, which power seems to have been again expressly granted to these trustees by section 745, Code of 1880. That the first lease had some time to run when the second was made was a fact which the hoard might, and very probably did, take into consideration in determining whether the second lease should he made, but has no hearing upon the question of its power to make the lease.

Another ground upon which it is sought to cancel this lease is that no payments have been made to the University of the rent reserved therein. This provision of the lease is somewhat ambiguous; hut, construing it, as we must, most strongly against the lessor, it means that the rent reserved begins not from the date of the instrument, as contended by appellant, hut from the time the extension or second lease begins, so that no payment to the University by appellee because thereof is yet due.

Affirmed,