Armstrong v. Portsmouth Building Co.

45 P. 67, 57 Kan. 62, 1896 Kan. LEXIS 108

• Court: Supreme Court of Kansas
• Decided: June 6, 1896
• Docket: No. 8533
• Status: Published

Opinion

The opinion of the court was delivered by

Martin, C. J. :

I. Sections 1 and 6 of chapter 78, General Statutes of 1889, relating to plats of cities and towns, have been in force substantially in the same form ever since 1855, and the main contention of the plaintiffs is that by the filing of the plat the lot in controversy was conveyed to the county in trust for the use of a church, “ and for no other use or purpose,” and that on the cessation of its use for church purposes the title reverted to the original proprietors, their heirs and grantees. It may be doubted whether, under a statutory dedication like this, the property would revert upon the abandonment of the use as upon the failure of a condition subsequent in a deed; but, assuming that a possibility of revertor exists in sucli case, we are of opinion that the plaintiff's are es-topped by their deed of September 8, 1868, to the board of county commissioners from setting up a title in themselves. True, the deed does not in so many words purport “to convey to the grantee an indefeasible estate in fee simple absolute,” as expressed in section 5 of- the act relating to conveyances (¶"1114, Gen. Stat. 1889) ; but it manifests the purpose of the Wyandotte City Company through its trustee to grant, bargain, sell, alien, enfeoff, release and confirm the lot unto said commissioners and to their successors and assigns forever, together with the remainders, rents, issues and profits thereof, and all the right, title and interest of John McAlpine, trustee, in and to the same. The trustee then makes a special covenant against incumbrances created by himself, and the deed concludes with a'covenant of general warranty of the company against the lawful claim or claims of all persons whomsoever.

1. Estopped by covenant of general warranty. Where the evident intent of the grantor is to convey the entire estate, it is a familiar principle that a covenant of general warranty estops him anc^ his heirs and assigns from asserting an after-acquired title. (Rawle, Gov. Title, 4th ed., 404.) Conceding that the covenant of warranty is coextensive only with the grant, and is to be construed with reference to its limitations, and when the deed does not purport to convey the land itself, but only the grantor’s right, title and interest therein, the grantee is not estopped from setting up an after-acquired title, yet the plaintiffs’ claim is not established, for the Wyandotte City Company grants the lot described without any qualification, whatever may be said of the grant and the covenant of the trustee in his own behalf. In Smith v. Williams, 44 Mich. 240, 242, Mr. Justice Cooley, delivering the opinion of the court, said :

“Where one assumes by his deed to convey a title, and by any form of assurance obligates himself to protect the grantee in the enjoyment of that which the deed purports to give him, he will not be suffered afterwards to acquire or assert a title, and turn his grantee over to a suit upon his covenants for redress. The short and effectual method of redress is to deny him the liberty of setting up his after-acquired title as against his previous conveyance. This is merely refusing him the countenance and assistance of the courts in breaking the assurance which his covenants have given.”

The plaintiffs question the right of John McAlpine to execute the deed to the county commissioners, but we think that by the articles of copartnership of June 26, 3857, he was authorized to convey the lands whenever ordered by the association ; and it fully appears that this deed was executed by him by direction of the association and for a valuable consideration paid to its treasurer. If, therefore, tlie lot would have reverted to the original proprietors on the abandonment of its use for church purposes, we hold that they and their grantees are estopped by said deed from setting up any claim of title against the grantees of the county commissioners.

2. Injuction-use of property. II. Tlie plaintiffs alleged that they owned property within the limits of the original city of Wyandotte other than that in controversy, and that they were entitled to the privileges and benefits of all streets> alleys, public grounds and church lots in said city as marked and designated on the recorded plat, and to have the property in controversy used for church purposes only, and ought to have an injunction prohibiting its use for any other purpose. On the trial they offered to show that three of their number owned property within the original city limits .other than that in controversy. It was not claimed that any of the plaintiffs owned property contiguous to or fronting on the church lot, nor that any one of them was a member of the Presbyterian congregation, or an attendant upon the services of that church. A long line of decisions, commencing with Craft v. Jackson Co., 5 Kan. 518, has established the principle in this state that a private person cannot maintain an action to redress a grievance common in its nature, unless the act complained of produces some peculiar damage to his individual interests or affects his rights in a different manner from those of other members of the community, and this branch of the case falls within that principle. If the plaintiffs owned property contiguous to or fronting on the church lot, and such property would be injured or depreciated in value by the secularization of the church property, they might be in a position to ask relief against a change in its use, as in Comm’rs of Franklin Co. v. Lathrop, 9 Kan. 453; or if they were members of the congregation holding its services in the building erected on said church lot, and would suffer injury by a change of the use of the lot from pious to secular purposes, perhaps they might have a standing in court under Feizel v. Trustees of German M. E. Society, 9 Kan. 592, 596. This case, however, does not come within either principle. Heller v. A. T. & S. F. Rld. Co., 28 Kan. 625, and Billard v. Erhart, 35 id. 611, follow the line of reasoning adopted in Craft v. Jackson Co., supra, and under their authority the plaintiffs have no standing in court to enjoin and restrain the change of the use of the property from pious to secular purposes.

The judgment of the court below must be affirmed.

All the Justices concurring.