The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1876-01-26
LEGAL INTELLIGENCE.
SUPREME COURT CT MISSISSIPPI.
Cases Decided Monday, Jany "a
PREPARED FOR THE CLARION BY FRANK
JOHNSTON, ESQ.
Memphis n Charleston r. r. Co ef
al. VS.. w. y. Nei2hhOrs. CT Al
Opinion of the Court bg SIMRALL, J.


Opinion of the Court by SINRALL, J.
William Lesley and Elizabeth his wife. in
september 1855. conveyed 10 the NJ. * c. r
| K. Co. about eleven acres of land in the
| town of Corinth.
/ In the deed TO the Company after the
words ''have this day given and by these
/ presents grant. convey and confirm unto the
Memphis & Charleston r. r. Co. and their
| successors in Office follows the hQbeadum
clause in these words ''to have and TO hold
! the same with all the appurtenances" =
| ''for the only proper use of said Railroad
| company in the construction of ware
| houses, water stations, machine shops.
wagon yards, and for depot purposes gener-
ally"
Afterwards the NJ & c. R. r. Co. convey
ed by deed an undivided half in Joint use in
said land to the Mobile & Ohio r. r. Co.
The NJ. & G. K. r. Co. did not erect
buildings of the character named in the
deed, except depot building, but built
large hotel and an express Office on the land
William Lesley died in 1871, and his wife
Elizabeth died in 1874. l. is not suggested
that they even made objection TO the cree
ton of these buildings by the railroad com
pany' but they evidently permitted the
same without intimation that it was in
violation of the terms of the grant.
On this state of facts the complainants as
heirs at law of Lesley and his wife Eliza
beth, filed their Bill in Equity praying that
the deed OF their ancestor should be cancel
NJ. & G. r. r. Co. to the N. & o. r r. Co,
and for an account for the rent of the land
There is also a general allegation Of fraud
In the bill, that complainantS' ancestor was
induced TO make the conveyance on the rep
resentation that the particular use of the
land specified in the deed would enhance
the value of his adj acept lands. Bus no spe-
citic acts showing fraud are stated.
The theory OF the bill is that the grant
was made upon a condition subsequent
which having kyap V.aJ ~.
estate of the grantee, and vested it in them.
as heirs of the grantar.
1t seems the allegation of fraud was not
relied on as distinct ground of relief, but
only in aid of the theory Just stated.
The bill was demurred to. and the de-
murrer presented the questions decided on
the appeal. Held:
L. Subsequent conditions are those which
operate upon an estate already vested, and
render 1t liable to be defeated. Under the |
modern system of conveyancing. the estate
passes to the grantee by the deed as COM |
pletely as by the ancient formula of livery |
OF seiZin, and remains in him, when subject |
to deteasance, until resumed by the grantor |
for condition broken.
H. The mere non-perfOrmance of a con- !
dltlon subsequent does not, tDSO fdctO, defeat |
the estate; but it Is for the grantee 70 elect |
whether TO insist upon a forfeiture, 10 |
waive 1T. The estate remains in the grantee |
and capable of alienation by him, notwith- |
standing the breach, until it is put an end |
TO by the entry on some act of the grantOr |
equivalent to it,
III. Where the grantor elects to insist |
upon a breach of the condition. the proper |
remedy is at law, court of equity will :
not lend its aid TO enforce either a penalty |
or forfeiture q Story Eq., 1879
~. A court of equity always had juris-
diction to protect the title of the true owner
in possession against adversary deeds which
had been Obtained by fraud, and which
might be set up to cloud the title OF the |
real owner.
V. The Statute Code 1871, extends this
jurisdiction to the "real owner whether in
possession or not. But it was not the policy
of the Statute to extend the jurisdiction to
purely legal titles in all circumstances or
in doubtful state of case, where the com
plainant leaves in doubt the validity of his
own title.
vi. Testing this case by these principles
governing the powers of the court OF equity,
It IS doubtful on construction of the deed
and in view of the erection of certain build
ngs of the class named in the deed whether
the grant was in a condition subsequent.
And in the case made by the bill it is not
clear that the compliments are not estopped
by the long acquiesceuce OF their ancestor
and his failure to enter upon or make
claim to the land. They come into court
With a doubtful title.
VI If the allegation of fraud is intended |
rs distinct ground of relief it is not well
pleaded in not stating specific acts showing
fraud. And further To entitle cGm plainants
70 rescission on the the theory of this
branch OF the case, the ancestor within a
reasonable time after the breach of the con-
lition, should have taken steps to rescind
me contract Reversed and decree here dis
tYl1pj n