Horner v. Chicago, Milwaukee & St. Paul Railway Co. , 38 Wis. 165 ( 1875 )

Lyon, J.

It is cláimed on behalf of the plaintiff, that the clauses in the deed from Mary Eleanor Watson to the Milwaukee & Horicon Eailroad Company expressing the purposes for which the lands conveyed thereby were to be used, are conditions subsequent, a breach of which might work- a forfeiture of such lands. This action is brought upon that theory, and the most important, if not the controlling question to be determined, is, whether those clauses are conditions. The principles or rules of law which are believed to be conclusive upon that question, will be briefly stated.

1. Although there are technical words, which, if used in a conveyance, unmistakeably create a condition, yet the use thereof is not absolutely essential to that end, and a valid condition may be expressed without employing those words.

2. It is not essential to 'a ’valid condition that, in case of a breach thereof, a right of re-entry be expressly reserved in the deed, or that it be expressed therein that the estate of the grantee shall terminate with a breach of the condition.

3. Neither does the character of the clause alleged' tobe a condition depend upon its insertion in any particular part of the instrument. “ Conditions regularly follow the habendum in a deed, but are good in law in any other place.” Jac. Law Die., “Condition.”

4. The construction of the clause or stipulation must depend upon the intention of the parties, to be gathered, from the instrument and the existing facts. Says Chancellor Kent, in 4 Com., 132 : “ Whether the words amount to a condition, or a limitation or a covenant, may be matter of construction depending on the contract. The intention of the j)arty to the instrument, when clearly ascertained, is of controlling efficacy ; though conditions and'limitations are not readily'to be raised by mere inference and argument. The distinctions on this subject are extremely subtle and artificial; and the construction of a deed, as to its operation and effect, will after all depend less upon artificial rules than upon the application of good sense and sound equity to the object and spirit of tfie contract in a given case.”

5. When the deed does not expressly provide for a forfeit-ture of the estate or give a right of re-entry in case of default, words' of limitation or restriction are sometimes, perhaps usually, necessary to create a condition. Eor -want of the these in the lease in Brugman v. Noyes, 6 Wis., 3, the instrument was held not to contain a condition or covenant.

6. In a voluntary conveyance, words may be held to be a condition, which, if used in a conveyance made for a valuable consideration, would be held a covenant only.

7. Conditions subsequent are not favored in the law, and are to be strictly construed.

8. To the foregoing may be added the following rule prescribed by statute: “ When any conditions annexed to a grant or conveyance of lands- are merely nominal, and evince no intention of actual and substantial benefit to the party to whom or in whose favor they are to be performed, they may be wholly disregarded, and a failure to perforin the same shall in no case operate as a forfeiture of the lands conveyed subject thereto.” R. S., ch. 88, sec. 46.

'9. Although a deed contain a clause. declaring the purpose for which it is intended the granted premises shall be used, if such purpose will not inure specially to the benefit of the grantor, but is in its nature general and public, and if there are no other words in the grant indicating an intent that the giant is to be void if the declared purpose is not fulfilled, such a clause is not a condition subsequent.

The application of this rule controlled the oases of Strong v. Doty, 32 Wis., 381, and Rawson v. Inhabitants of School District No. 5 in Uxbridge, 7 Allen, 125, cited and relied upon by counsel for the defendants..

The foregoing rules are, it is believed, fully sustained in the elementary treatises and by numerous adjudged cases. Many of these will be found cited in the briefs of the learned counsel on both sides. Further citation of the authorities on these subjects is not deemed necessary.

It remains to be determined, in the light of the above rules of law, whether the deed from Mary Eleanor Watson to the Milwaukee & Horicon Eailroad Company conveyed the absolute fee of the lands in controversy, or only a conditional fee.

This deed conveyed two parcels of land. After the description of the first parcel, and referring to it, are the following words: “ The aforesaid piece or parcel of land hereby conveyed to the party of the second part only for depot and other railroad purposes.” After the description of the other parcel, which in terms is granted for a railway, the deed contains this clause: “ Both of said pieces or parcels being granted solely for said road purposes.” ■ The words “ only ” and “ solely ■” are words of restriction or exclusion. As used in this deed, their effect clearly is to prohibit the grantee from using the lands for any other than the specified purposes.

The grantor owned a tract of land suitable for building purposes, adjacent to the land conveyed for a depot site. She believed, as she well might, that the construction of the railroad, and the location and erection of the depot at that point, would enhance the value and 'facilitate the sale of her propertjn Hence she was willing to donate, and did donate, the land in controversy to the railroad .company for the purposes specified in the deed, and for no other.

But it is argued that parol evidence was improperly admitted to prove that no consideration was actually paid for the land. It is claimed that, because the deed recites a consideration of one dollar, it is a verity in the case that the grantor received one dollar for the land. We do not stop to inquire whether this position is correct or otherwise; for we think that it was competent for the plaintiff to prove by parol evidence, not for the purpose of showing the deed void in its inception, but as a circumstance bearing upon the intention of the parties and thus aiding in a correct interpretation of the instrument, that the construction of the railroad, and the location of the depot upon the granted premises, were the principal inducements to the execution of the deed. See Hannan v. Oxley, 23 Wis., 519, and cases cited. It may be further remarked on this subject, that, if regard be had to substance rather than form, the distinction in principle between paying for the land a mere nominal consideration and paying nothing at all for it, is not very apparent.

It is a very significant fact in the case, that the grantor (acting by her agent, Mr. Horner) refused to execute an unconditional conveyance of the land, and required the clauses under consideration to be inserted in the conveyance which she did execute. But their insertion was a useless act unless the clauses are held to be conditions. That the grantor intended to reserve to herself some remedy in case the grantee should make default, is too plain for argument or doubt.

The considerations above mentioned, and other features of the case not specially referred to, convince us that the grantor intended to convey tbe land upon tbe condition that if tbe grantee failed to construct tbe railway and locate and erect tbe depot tbereon, she should have power to destroy tbe estate of tbe grantee in tbe land, by re-entry or its equivalent, and re-vest tbe title thereto in herself. We think also that tbe language of tbe deed admits of a construction which will effectuate that intention, and we cannot hesitate so to construe it.

It must be held, therefore, .that tbe parcel of land first described in the deed was conveyed upon condition that the grantee should use it for depot purposes, and tbe parcel last described upon condition that it should be used “ for a railway that is, as we understand it, the railway track should be laid upon it. And here it may be observed that we do not think that the first condition in the deed applies to the second parcel of land therein described. That is to say, we do not think the failure to use the land first described for depot purposes can alone work a forfeiture of the strip conveyed “for a railway.” Having regard to the rule above stated, that these conditions are to be strictly construed, we must construe them the same as though two deeds had been made, one conveying the depot lot on condition that it be used for depot purposes, and the other conveying the strip two and a half rods wide on condition that it should be used for a railway track.

The track having been laid upon such strip of land in 1857 or 1858, and having been maintained there until the present time, it necessarily follows from the views just expressed, that there has been no breach of the condition upon which the same was conveyed, and hence that the circuit court erred in rendering judgment therefor for the plaintiff. But the failure to use the other parcel for depot purposes, evidenced by the erection and maintenance, by the grantee and its successors, of the depot for Eipon eighty rods south of such parcel and separated from it by a mill pond, was injurious to the grantor and a substantial breach of the condition upon which such parcel was conveyed.

We are next to determine whether the grantor, before she conveyed to the plaintiff, made entry, for condition broken, upon the land conveyed for depot purposes. Without recapitulating the testimony on that subject, we think-the fact is established by a clear preponderance of the evidence, that in 1862 or 1863 the grantor, by her agent, made sufficient entry thereupon to revest in her the title to such parcel.

It is further claimed that the deed from Mary Eleanor Watson to the plaintiff does not convey to the latter the lands in controversy. That deed was executed in 1865, and conveys all of the eighty-acre tract of which such lands ave a portion, “which still remains unsold.” The title to the depot lot had previously reverted to the grantor, arid at that time she was the owner of such lot. Hence it “ remained unsold,” and the title thereto passed to the plaintiff by the deed of 1865. Besides, it is admitted in the stipulation of facts that the lands in controversy were conveyed to the plaintiff bv that deed.

Lastly, it is said in one of the briefs of counsel for defendants, that the judgment is bad because it is a joint judgment against all of the defendants. This position cannot be maintained. It is a stipulated fact in the case, “ that at the time of the commencement of this action the defendants were in the possession of the premises described in the complaint.” If the plaintiff is entitled to recover against one of the defendants, it is very certain that she is entitled to recover against all of them.

Our conclusion is, that the plaintiff is the' owner in fee of the parcel conveyed for depot purposes, and entitled to judgment therefor against all of the defendants.

By the Court— The judgment of the circuit court is reversed, and the cause remanded with directions to that court to give judgment for the plaintiff, modified as indicated in this opinion.