Doe ex dem. Thornton v. Roe , 39 Ga. 202 ( 1869 )

Warner, J.

This was an action of ejectment, instituted in the Court below, by the heirs-at-law of Mark Thornton, deceased, to recover the possession of eleven acres of land in the city of Dalton, with the improvements thereon, including the depot building of the Western and Atlantic Rail Road. The plaintiffs insist, that they are entitled to recover the premises in dispute, upon the ground that Mark Thornton, the plaintiffs’ ancestor, conveyed the land by deed, on the 22d day of October, 1846, to the Governor of the State, and his successors in office, upon condition, that the same should be used as a “ depot square,” and that the grantee of the land having broken the condition, the estate became forfeited to the grantor or his heirs, and that the latter had now the legal right to enter upon the land : and the question in the case is, whether the words contained in the deed, are to be construed as conveying an estate in the land upon condition, or whether the words are to be construed as creating a covenant between the parties, as to the use to which the land conveyed was to be appropriated.

What is an estate upon condition ? “An estate on condition, (says Blackstone,) expressed in the grant itself, is where an estate is granted, either in fee simple or otherwise, with an express qualification annexed, whereby the estate granted, shall either commence, be enlarged, or be defeated, upon performance, or breach of such qualification or condition. These conditions are, therefore, either precedent, or subsequent:” 2d Bl. Com. 154. “A condition may be created by express words, which is called a condition in fact: as where a feoffment is made of lands, reserving rent, payable on a certain day, upon condition, that, if it be not paid on the day, the feoffer may re-enter, etc. And note, that it is a general note, that a condition which destroys, or defeats the estate, or grant, is to be construed strictly :” 2 Bacon’s Ab., 279, title conditions. “My Lord Coke says that, by inserting the word condition, or sub-condition, conditions are most properly created; but there are also other words, says he, that will do as effectually as the word proviso: but then it must not depend upon another sentence: also the words must be those of the grantor, and compulsory, to enforce the grantee to do some act2 Bacon’s Ab., 280. See 2268-2269 sections of the Revised Code. “The law inclines (as declared by the latter section of the Code) to construe conditions, to be subsequent, rather than precedent, and to be remedied by damages rather than by forfeiture.” Conditions subsequent, says Chancellor Kent, are to be construed strictly, because they tend to destroy estates ; and the rigorous exaction of them is a species of sum-mum jus, and in many cases, hardly reconcileable with conscience: 4 Kent’s Com., 129. If it be doubtful, says the same learned author, whether a clause in a deed be a covenant or a condition, the Courts will incline against the latter construction ; for a covenant is far preferable to the tenant: 4 Kent’s Com., 132.

When Thornton, the grantor of the land, conveyed it to the grantee, he had the power and dominion over it, and could have granted the same upon such terms and conditions, as he thought proper to express in his grant, consistent with the laws of the land ; and the grantee would have taken it subject to the terms and conditions so expressed in the deed of conveyance. Let us examine the deed of conveyance, and see what are the terms, and conditions, (if any) expressed therein, upon which the land was conveyed by the grantor to the grantee. The deed conveys an absolute fee simple title to the land, Ivith a covenant of warranty. There is no condition annexed to the grant, and none imposed on the grantee, by any words expressed in the deed. The grantor conveys, and the grantee takes under the deed, an absolute fee simple estate in the land. The following words are recited in the deed: “It being expressly understood by the parties that

the said tract, or parcel of land, is not to be put to any other use than that of a depot square, and that no business, or improvements, is to be put on the said tract but that which is immediately connected with the Western and Atlantic Railroad.” The conveyance itself, is an unqualified grant of the land to the grantee. The words of the grantor in conveying the land to the grantee, impose no conditions upon the latter, which would be compulsory on him, to do any act whatever. Independent of the understanding, or covenant of the parties, as expressed in the deed, there is nothing in this conveyance to distinguish it from any other deed of bargain and sale, conveying an absolute fee simple estate in a tract of land There being no condition expressed in the grant of the land to the grantee, by the grantor, of course, there can be no forfeiture of the grantee’s estate therein, for condition broken. If the covenant of the grantee has been broken, the plaintiffs have an adequate remedy by an action thereon to recover damages. An action of covenant may be brought as well on a deed poll, as on a deed indented: 2 Bacon’s Ab., 554, title covenant. Independent.of the common law rule of construction, this conveyance, under the provisions of the Act of 1821, which was of force at the time it was executed, vested an absolute unconditional fee simple estate to the land in the guarantee : Cobb’s Dig., 169. The substance of the second section of the Act of 1821, is incorporated into the Code. See section 2222. If the covenant contained in this deed, would, by its terms, have created a forfeiture of the estate, the Court ought to give such a construction to it as to prevent that result, for, as Mr. Justice Spencer said in Jackson vs. Brownson (7 John. Eep., 235,) “ It is an established principle, that in construing a covenant which is to work a forfeiture, Courts adhere strictly to the precise words of the condition, in order to prevent the forfeiture. This rule, for its equity and reasonableness, deserves constantly to be kept in view. It is in most cases rigorous and harsh to break up a lease, for the violation of covenants which may be compensated in damages •, and the present case appears to be one of that description.” See Jackson vs Medallón to the same point, 8 Cowen’s Eep., 295. If the plaintiffs have sustained any damage by reason of a breach of the covenant in the deed of conveyance of Mark Thornton, in relation to the use of the depot square, they must seek their remedy by an action thereon, to recover damages for such breach, and not for a forfeiture of the estate conveyed to the grantee by an absolute unconditional fee simple title, from the guarantee.

Let the judgment of the Court below be affirmed.

Brown, C. J.

I am unable to bring my mind to the conclusion that this was a covenant between the Eoad and Thornton. If so, the road would be bound by the covenant, to keep the depot on this square perpetually, and could not abandon it. It seems to me the road is under no such obligation, and that it may remove the depot to another place at any time, if the authorities should find that the, public interest demands the change, without liability for damages. But on such removal the depot square would revert to Thornton’s heirs, on account of the condition broken by the road.

Objection was made by counsel for the railroad to my presiding in this case, on the ground that I was of counsel while at the bar in a case somewhat similar to this, which is not yet decided, in which I was promised a fee mostly conditional. In that case the language of the deed is different; and I have turned over the case with the obligation for the fee to other counsel. Under these circumstances both my learned associates concur with rue in opinion, that I am not disqualified to preside in this case. But, as I am unable to concur in the decision made by the majority of the Court, I have concluded to pronounce no judgment. I therefore deliver no dissenting opinion.