Opinion
No. 28323.
March 31, 1930.
1. CHAMPERTY AND MAINTENANCE. Statute. Alienation. Construction. Statute relating to conveyances held to remove all restraints on transfer of real estate ( Hemingway's Code 1927, section 2421).
The statute referred to, Code 1906, section 2762 (Hemingway's Code 1927, section 2421), provide that any interest in land may be conveyed to vest immediately or in future by writing signed and delivered, and that such writing shall have effect to transfer according to its terms, the title of the person signing and delivering it with all its instruments, as fully and perfectly as if it were transferred by feoffment with livery of seizin, notwithstanding there may be an adverse possession.
2. REVERSIONS. Property conveyed. Fee-simple title.
Where grantors conveyed property to be held by grantee as long as it should be used for waterworks purposes, and later delivered warranty deed to another, city claiming under both deeds owned fee-simple title (Hemingway's Code 1927, section 2421).
3. ESTOPPEL. Warranty. Grantors' remaining interest. Heirs.
Where grantors' remaining interest passed under warranty deed as to grantors, it passed also as to their heirs.
APPEAL from chancery court of Hinds county, First district. HON. V.J. STRICKER, Chancellor.
Franklin, Easterling Rosenthal and Luther Manship, all of Jackson, for appellants.
The words in the habendum of the deed, so long as it should be so used, etc., unquestionably constitute a conditional limitation, and not an estate upon condition subsequent. The distinction between the two is so obvious as to need no comment.
2 Washburn Real Property, 25, 26, 27; Smith, Exec. Int., 21 C.J., 930; Magness v. Kerr, 254 P. 1012, 51 A.L.R. 1470; 2 Washburn on Real Property (5 Ed.), 458; Mobile J. K. Ry. Co. v. Kamper, 88 Miss. 817, 41 So. 513; Hill v. Western Vermont R.R. Co., 32 Vt. 68; Indianapolis, etc., R.R. Co. v. Reynolds, 116 Ind. 356, 19 N.E. 141; Railway Co. v. Geisel, 119 Ind. 77, 21 N.E. 470; 3 Thompson on Real Property, sec. 2116.
The right of reverter in the deed from the Hamiltons to the water works company was not subject to conveyance or alienation.
3 Thompson on Real Property, sec. 2117; Vaughn v. Langford, 81 S.C. 282, 15 Ann. Cas. 91; Blount v. Walker, 31 S.C. 13, 27, 285 S.E. 804; Adams v. Chaplin, 1 Hill Eq. (S.C.) 265; Deas v. Horry, 2 Hill Eq. (S.C.) 244; Pearce v. Killian, McMull Eq. (S.C.) 231; 23 R.C.L. 1104, sec. 8; 2 C.J. 1017; Prall v. Burchart, 18 A.L.R. 992; Hart v. Lake, 273 Ill. 60, 112 N.E. 286; North v. Graham, 235 Ill. 178, 18 L.R.A. (N.S.) 624, 126 Am. St. Rep. 189, 85 N.E. 267; 21 C.J., 1018; McNeer v. McNeer, 142 Ill. 388, 19 L.R.A. 256, 32 N.E. 681; Butterfield v. Sawyer, 187 Ill. 598, 52 L.R.A. 75, 79 Am. St. Rep. 246, 58 N.E. 602; 18 L.R.A. (N.S.) 624; Upington v. Corrigan, 151 N.Y. 143, 37 L.R.A. 794, 45 N.E. 359.
The mere possibility of reverter such as is contained in the deed from Hamilton to the Water Works Company is not any estate in land and is not alienable or durable.
Nicoll v. New York E.R. Co., 2 N.Y. 121; Vail v. Long Island R.R. Co., 106 N.Y. 287, 60 Am. Rep. 449, 12 N.E. 607; Powers v. Bullwinkle, 33 S.C. 293, 11 S.E. 971; North v. Graham, 18 L.R.A. (N.S.) 627; Challis on Law of Real Property, p. 63; 1 Preston, Estates, 441, 484; Magness v. Kerr, 51 A.L.R. 1466; Walsingham' case, 2 Plowd. 557; Jamaica Pond Aqueduct v. Chandler, 9 Allen 159, 168, 169; First Universalist Society v. Boland, 155 Mass. 171, 174, 15 L.R.A. 231, 29 N.E. 524; Cruise's Dig., Title 1, par. 80; 4 Kent, Com. 10; I Washb. Real Property (6 Ed.), pars. 164, 165; Gray, Rule Against Perpetuities, pars. 31 (3), 32; Brattle Square v. Grant, 3 Gray 42, 50, 63 Am. Dec. 725; Chandler v Jamaica Pond Aqueduct Corp., 125 Mass. 544, 547; Parish v. Gilmanton, 11 N.H. 293; Rigney v. Lovejoy, 13 N.H. 247, 251; Gurnsey v. Edwards, 26 N.H. 224, 230; Orr v. Hadley, 36 N.H. 575, 579; Flynn v. Flynn, 171 Mass. 312, 42 L.R.A. 98, 68 Am. St. Rep. 427, 50 N.E. 650; Venable v. Wabash Western R. Co., 112 Mo. 103, 18 L.R.A. 68, 20 S.W. 493; Mills, Em. Dom. (2 Ed.), par. 71; Bouvier v. Baltimore, etc., R.R. Co., 60 L.R.A. 754, 757 and 758; First Universalist Society v. Boland, 15 L.R.A. 231; Askley v. Warner, 11 Gray, 43; Atty.-Gen. v. Merrimack Mfg. Co., 14 Gray 586, 612; Easterbrooks v. Tillinghast, 5 Gray, 17; Fifty Associates v. Howland, 11 Met. 99, 102; Owen v. Field, 102 Mass. 90, 105; 1 Washburn., Real Property (3 Ed.), 79; 2 Washburn, Real Property (3 Ed.), 20, 21; 4 Kent Com., 126, 127, 132, note; 2 Crabb, Real Property, pars. 2135, 2136; 2 Flint, Real Property, 230-232; Shep. Touch. 121, 125; Leonard v. Burr, 18 N.Y. 96; Gillespie v. Broas, 23 Barb. 371; State v. Brown, 27 N.J.L. 13; Henderson v. Hunter, 59 Pa. 335; Wiggins Ferry Co. v. Ohio M.R. Co., 94 Ill. 83, 93; 2 Bl. Com. 109, 154, 155; 1 Cruise Dig., Title 1, pars. 72-76; 2 Flint, Real Property, 136-138; Preston, Estates, 431, 441; Challis, Real Prop., 197-208; Challis, Real Prop., 31, 63-65, 153, 174, 198, 200, 212; Preston, Estates, 431, 471; 2 Plowd. 413; Shep. Touch. 120; 2 Washburn Real Prop., 20, 579; 4 Kent. Com., 10; Smith v. Harrington, 4 Allen, 566, 567; Gray, Perp., pars. 33, 34, 39; Tobey v. Moore, 130 Mass. 448; French v. Old South Soc. 106 Mass. 479; Gray, Perp., pars. 305, 312; Vaughn v. Langford, 81 S.C. 282, 16 Am. Eng. Ann. Cas. 92.
W.E. Morse and Green, Green Potter, all of Jackson, for appellee.
The possibility of reverter having finally reached the city, or having been extinguished, through subsequent warranty, and other conveyances, its title was perfected to the estate in fee, and discharged thereby from the particular condition by which it had theretofore been limited.
Magness v. Kerr, 51 A.L.R.; 55 Lin. 232; 77 Mass. 43; 21 Tex. Civ. App. 604; 108 Ga. 634; 11 Gray (Mass.) 43; 76 Va. 140; 23 Wis. 181; 59 Pa. St. 340; 8 Allen (Mass.) 594; 14 Mass. 491; 46 S.W. (Tenn.) 586; 51 Miss. 412.
The deed from Fannie B. Hamilton to the Light, Heat Water Company conveyed (1) a fee-simple title; but if not, then (2) when Fannie B. Hamilton conveyed by warranty deed to A.J. Hackett, the conditional limitation in her vested, was divested (a) by warranty; or (b) by grant or (c) by mesne conveyance to the city, in possession, as a release.
Fox v. Merchants Bank Trust Co., 124 So. 323; Harvey v. Jordan, 111 Miss. 556, 71 So. 824; Morse v. Jordan, 92 So. 690, 129 Miss. 598; Goosey v. Goosey, 48 Miss. 210; Robinson v. Payne, 58 Miss. 690; Hart v. Gardner, 74 Miss. 156; 20 So. 877; Dunbar v. Aldrich, 79 Miss. 698, 31 So. 341; Massey v. Whitaker, 126 Miss. 99, 88 So. 518.
Appellee's contention is, first, that there is no conflict between the granting and the habendum clause, but under both a fee-simple title passed, but if there is a conflict, then that the granting clause controls.
Massie v. Whitaker, 88 So. 519, 126 Miss. 99; Barksdale v. Barksdale, 45 So. 617, 92 Miss. 166; Dunbar v. Aldridge, 79 Miss. 706, 31 So. 341; Monypenny v. Monypenny, 9 H.L. Cas. 146.
Bailey v. Lloyd, 5 Russ. 344; Young v. Smith, 35 Beav. 90, 69 E.C.L. 750; Dickson v. Wildman, 183 Fed. 398, 403; Robinson v. Paine, 58 Miss. 692; Hart v. Gardner, 74 Miss. 157, 20 So. 877; Hall v. Eastman, Gardiner Co., 43 So. 5.
While it is perfectly true that there is a distinction between a limitation and a condition subsequent, yet insofar as the divesting of these estates is concerned, the principle here applicable is precisely the same.
Thornton v. Natchez, 88 Miss. 19, 41 So. 498.
To give the right of reverter through the courts, it should be expressed in the instrument that, by devotion of the land to a purpose other than that indicated, the whole estate should revert to the grantor and his heirs.
Soria v. Harrison County, 96 Miss. 114, 50 So. 443; Thornton v. Natchez, 88 Miss. 1, 41 So. 498; Thornton v. Natchez, 129 Fed. 84; Thornton v. Natchez, 197 U.S. 620; Thornton v. Natchez, 212 U.S. 559; Vicksburg Lodge v. Grand Lodge, 76 So. 575, 116 Miss. 214; N.O., G.N.R.R. Co. v. Belhaven Heights Co., 84 So. 181, 122 Miss. 213; Railroad Co. v. Kamper, 88 Miss. 817, 41 So. 513; Y. M.V.R.R. Co. v. Lakeview Traction Co., 100 Miss. 281, 56 So. 393; Kent v. Stevenson, 90 So. 242, 127 Miss. 529.
A covenant real of warranty, when annexed to an assurance by feoffment, fine, or common recovery, had not only the ordinary and personal effect of rebutting or repelling the grantor of his heirs from claiming the land, as by force of the estoppel of the deed, but also the much higher operation actually to transfer and pass to the grantee any estate in the land which the grantor may afterwards have acquired.
Rawles, Cov't of Title, 319 et seq.; 2 Th. Co. Lt. 353, and N.B. 1; Id. 457; Shepp. Touchst. 204, 210; Burtners v. Keran, 24 Grat. 66; Rawle, Cov't of Title, 320; Bigelow on Estoppel, 337, 360-363; Doe v. Oliver, 5 M. R. 202; S.C., 2 Smith 511, 514, et seq.; Doswell v. Buchanan, 3 Leigh, 365, 407; Gregory v. People, 80 Va. 357; Reynolds v. Cook, 83 Va. 821; Garner v. Garner, 78 So. 623; 2 Blackstone's Com. 303; Nixon v. Carco, 28 Miss. 426; Aldridge v. Kincaid, 2 Litt. 391; Challis. Real Property (3 Ed.) 76; 116 So. 738; Finkbine Lbr. Co. v. Saucier, 150 Miss. 432; Wills Act, 7 Will, 4; 1 Vict., ch. 26, sec. 33; Farnsworth v. Kimball et al. (1924, Maine), 91 Atl. Rep. 954; Justice v. May (1917, Ky.), 195 S.W. 98; McClure v. Dee et al. (1902, Iowa), 88 N.W. 1093; Rawle on Covenants for Title (5 Ed.), chap. 11, sec. 238; Kaiser v. Earheart, 64 Miss. 492, 1 So. 635; Clark v. Slaughter, 34 Miss. 651; Edwards v. Hillier, 13 So. 692, 70 Miss. 803; Mississippi Saw Mill Co. v. Douglas, 65 So. 885, 107 Miss. 678; Fitzgerald v. Allen, 126 Miss. 678, 89 So. 146; Ladnoer v. Ingram Day Lumber Co., 135 Miss. 632, 100 So. 369; Wheat v. J.J. White Lumber Co. No. 26,998 (Miss.), 116 So. 103; Wheat v. White Lumber Co., 116 So. 103, 150 Miss. 615.
Any outstanding title acquired by a grantor in a deed of general warranty inures to the benefit of his grantee.
Section 2767, Code 1906 (Hemingway's Code 1927, sec. 2426); Wrightman v. Doe, 24 Miss. 675; Garner v. Garner, 117 Miss. 694, 78 So. 623; Brown v. Minden Lbr. Co., 148 La. 175, 86 So. 727; International Lbr. Co. v. Staude, 144 Minn. 356, 175 N.W. 909; Derr Creek Lbr. Co. v. Sheets, 75 W. Va. 21, 83 S.E. 81; Hornthal v. Howcott, 154 N.C. 228, 70 S.E. 171; Sutton v. Gray Lbr. Co., 3 Ga. App. 377, 60 S.E. 2; Smith v. Salem Brick Lumber Co., 118 So. 180, 151 Miss. 329; Y. M.V.R.R. Co. v. Lakeview Traction Co., 100 Miss. 281, 56 So. 393; Bacon v. Varnado, 91 Miss. 824, 47 So. 113; Smith v. Salem, 118 So. 180, 151 Miss. 329; 1916F, L.R.A., page 311; 2 Reeves on Real Property, sec. 721; Chaplin on Suspension of the Power of Alienation (3 Ed.), sec. 202.
Mississippi has long since passed from the doctrine pertaining to feudal tenure, and the contention that both appellants and G.B. Hackett, were incompetent to convey the land until the limitation contained in the deed had happened is unsound.
Argued orally by Lamar F. Easterling, for appellant, and by Garner W. Green, for appellee.
The small tract of land in question was conveyed on December 3, 1888, by Jones S. Hamilton and his wife, Fannie B. Hamilton, to the Light, Heat Water Company, a corporation, which corporation later conveyed the same to the city of Jackson. In the deed from Hamilton and wife to the water company, there is this provision: "To have and to hold the aforesaid property so long as it shall be used to carry out the purposes of the act of incorporation of said" Light, Heat Water Company.
On the 12th day of October, 1904, said Jones S. and Fannie B. Hamilton, both now deceased, made and delivered unto A.J. Hackett a warranty deed to certain lands, which by its descriptions covered and embraced this particular tract, the deed being an absolute fee simple without any exceptions or reservations, and, through a direct chain of mesne conveyances from A.J. Hackett, the city of Jackson now holds whatever title and right of title that was conferred by said second deed of the Hamiltons.
It was the original purpose in fact of the parties to the conveyance first hereinabove mentioned that the said small tract of land should be used for waterworks purposes, and the same is still being so used; but in the growth of the city the immediate locality of the tract has become a residential section, and the city, not now needing all the tract for waterworks purposes, desires to convert the greater part of it into residence lots in order to accommodate the rapid growth in population and to prevent the presence of an unoccupied and unimproved tract within a highly desirable residential section to the detriment of a harmonious municipal development in that locality.
To that end the city has attempted to sell to private parties all that portion of the tract not now needed for the original purpose, but its attempt has been met with the question whether its deed will convey a fee-simple title, without which title purchasers will not accept. Wherefore, proceeding under the regular mode in chancery to cancel clouds, the city filed its bill against all the heirs at law of Jones S. and Fannie B. Hamilton for a settlement of the question whether the city now owns the fee-simple title claimed by it. Upon the hearing, the chancellor decreed in favor of the city, and the Hamilton heirs have appealed to this court.
The chancellor held, as shown by his written opinion, that the quoted clause in the original Hamilton deed constituted a conditional limitation, and not an estate upon condition subsequent. Some of the authorities would hold that the words used are equivalent to a condition subsequent. If this view were taken of this case, there would be an immediate end of the inquiry, for our court has already heretofore in effect held that the reversionary rights in a case of a condition subsequent are alienable, and that the heirs are in full privity with the ancestor. See, for instance, Yazoo M.V.R. Co. v. Lakeview Co., 100 Miss. 281, 56 So. 393.
But we shall consider the case as did the chancellor, and as the parties by their briefs, have in the main elected to consider it, namely, that there is a conditional limitation. So viewing the provision in the deed here involved, it is the contention of appellants that, since no limitees over, who shall take upon reverter for condition broken, are mentioned or designated in the original deed, then, until the event of condition broken shall transpire, there is no person other than the grantee who has any title in the land which is in any wise subject to conveyance, and that, when the condition is broken, the property reverts and thereupon vests only in those persons who can bring themselves into the class of heirs of the person creating the estate, at the time when the reverter happens, and that these take, not by descent as heirs, but by representation. The contention is, to state it otherwise, that under such a limitation there is only a future possibility of a reverter, and that, since the contingency which would mature the possibility may never happen and thus the title may remain in the grantee forever, the said possibility is not an estate, is not alienable, is not assignable, is not subject to execution or attachment; that it is even not devisable; that the takers upon condition broken take not at all as heirs, but solely by representation; and that therefore there is not such privity between the representatives and the ancestor as would bind them to the warranty of the ancestor, as would ordinarily be the case between ancestor and heirs.
Such were the refinements under the common law at the time of the coming into existence of the several commonwealths in this country, and such were the necessities in the maintenance of its surviving feudal principles, that it may be conceded, for the purposes of this case, that the contentions stated in the foregoing paragraph are substantially in accord with the common law on the subject.
Wherefore we immediately pass to a consideration of the effect of our statute, section 2762, Code 1906 (section 2421, Hem. 1927, Code), upon the question at issue. That section is as follows: "Any interest in or claim to land may be conveyed, to vest immediately or in the future, by writing signed and delivered; and such writing shall have the effect to transfer, according to its terms, the title of the person signing and delivering it, with all its instruments, as fully and perfectly as if it were transferred by feoffment with livery of seizin, notwithstanding there may be an adverse possession thereof."
This statute first appeared in our Code of 1857. Of it our court, after a review of the common law, and the restrictions upon alienations of land not in the possession of the grantor, in Cassedy v. Jackson, 45 Miss. at page 407, said: "This is the common law as to the effect of adverse possession upon conveyances of real estate. But it has been the policy of modern times to remove all restraints from the free alienation of property. And in pursuance of that policy the statute of 1857 provides that any interest in or claim to real estate may be disposed of by deed or will, and livery of seizin shall not be necessary. . . . This changes the rule of the common law above discussed upon this subject, and removes all restraints upon the alienation and transfer of real estate. . . ." The same statute had been enacted in Virginia in 1849. Of it the supreme appellate court in that state, on February 3, 1857, in Carrington v. Goddin, 13 Grat. (Va.) 587, said, in substance, that no more comprehensive terms could have been used, and that it was sufficient to embrace a conveyance to any sort of right of entry upon condition broken. In Young v. Young, 89 Va. 675, 17 S.E. 470, 23 L.R.A. 642, it was held that, under the statute, a contingent remainder could be conveyed, although only a naked possibility and not subject to attachment. In Wilson v. Langhorne, 102 Va. at page 640, 47 S.E. 871, 874, referring to the statute and to the decision of the court in Carrington v. Goddin, it was said further: "The court in that case indulges in no refinement of construction. It is content to give to plain words their usual and everyday meaning, and the interpretation there placed upon the statute did away forever with the niceties by which the devolution of property had theretofore been embarrassed and hindered, and made capable of disposition by deed or will any interest in or claim to real estate." The court then refers to 2 Minor's Institutes (3 Ed.), p. 416, as to the abounding effect of the statute, and cites and quotes Nutter v. Russell, 3 Metc. (Ky.) 163, at page 166, wherein the Kentucky court, referring to a similar statute which had been enacted in that state and to other decisions wherein it had been held that a naked possibility was not assignable or releasable, said: "But it is unnecessary to decide the point . . . for, according to our own statutes, `any interest in, or claim to, real estate, may be disposed of by deed. . . .' The effect to this enactment is to obviate at once all the difficulties growing out of the distinctions which had been established, by judicial construction, between such estates as were alienable and such as were not. It will not be doubted, we suppose, that under this statute every conceivable interest in, or claim to, real estate, whether present or future, vested or contingent, and however acquired, may be disposed of by deed or will." Compare the learned opinion in Moore v. Sharpe, 91 Ark. 407, 121 S.W. 341, 23 L.R.A. (N.S.) 937, dealing with substantially the same statute.
Under these decisions, interpretive of this statute, and which interpretations we hereby adopt, the entire remaining interest of the Hamiltons — call the original deed as creating a conditional limitation, a condition subsequent, a contingent remainder, a determinable fee, a qualified fee, or a naked possibility, or whatever name may be pleased to be attached — was alienable by them, and, being so, was the subject of a warranty. From which it follows that every vestige of the said remaining interest, potential or otherwise, in short, the full and absolute fee-simple title, passed by the warranty deed of Jones S. and Fannie B. Hamilton to A.J. Hackett on October 12, 1904, and, having so passed, it passed also as to the heirs of the Hamiltons; and, whether these be called heirs, or denominated as representatives, in either case there was nothing left to go to them, whatever might be the events of the future.
The other questions argued have been disposed of by the findings of fact by the chancellor, which findings are sufficiently sustained by the record.
Affirmed.