Daniel v. Jacoway

1 Free. Ch. 59

• Court: Mississippi Chancery Courts
• Decided: July 1, 1844
• Status: Published

Opinion

The Chancellor.

The complainant conveyed a, tract of land in the county of Ner shoba to the defendants, as a board of county police, as the deed expresses it, ‘‘for the use and benefit of the county of Neshoba aforesaid, for a county site, Ac.” The deed was duly executed and delivered, and the police court proceeded to lay out town lots and build a court house. Shortly afterwards the board of police removed the seat of justice to another place, some three or four miles off. Upon this state of things the complainant files his bill against the defendants for. a reconveyance, upon the ground of the failure of the condition and purposes for which it was made. The defendants resist the application, and insist that the building of a court house and location of a county town on the land was a condition precedent, and having been performed, the title vested absolutely and unconditionally in fee simple.

From the construction which I place upon the deed as recited in the bill; the locating the county site was most clearly a condition subsequent. The granting words of the deed are in presentí, and the title passed upon the execution and delivery of the deed, subject to the purposes expressed on the face of the deed. A condition precedent is one which must take place or be performed -before the estate can .vest. Subsequent conditions are those which operate upon estates already created and vested, and which render them liable to be defeated. Here there was not a substantial compliance with the subsequent condition. The defendants took the land, not absolutely, but in trust, for the use and benefit of the county of Neshoba, for a county site, court house, Ac. But the county for whose use it was conveyed has refused to appropriate the land to the purposes expressed in the deed. Can the defendants, then, set up an absolute estate in themselves, when the trust upon which the land was conveyed has wholly failed, and this, too, by their own act? Or will the title, like a conveyance in trust — void under the statute of mortmain — result back to the grantor, or his heirs? They certainly have no right to hold, except upon the very terms expressed in the trust. Are not the principles of this case altogether analagous to those which obtain in a case where-a voluntary grant has been made to a corporation, and where, upon a dissolution of the corporation, the title to the thing granted would revert back to the grantor?

I consider the construction of the deed to be, that the defendants were to hold the land for the i^se of the county so long as the county used it for a county site and court house. It was a continuing and subsisting trust, not put an end to by building a court house. If I am right in this construction, it distinguishes it at once from the case in 10th Peters. The grant in that case, by its very terms was to take effect upon the performance of a single condition, to wit: the completion of a mill. Suppose the terms of the grant in that case had have been to be held and used as a mill site, the rule would doubtless have been different, as in the case of 5th Hammond, Ohio Rep. 389, where it was held that a. conveyance on condition that the grantee should keep a saw and grist mill on the land. Doing business is a valid condition, and a failure to perform forfeits the condition. But I find the question in this case has been directly settled in the supreme court of Louisiana, (18 Martin’s Rep. 221,) where it was held, that if land be given on the condition that the public buildings of thp parish be erected thereon, the title would revert to the donor upon the seat of justice of the parish being removed under the sanction of an act of the Legislature, passed subsequent to the grant. Police Jury vs. Reeves. The principles of this case are decisive of the one now under consideration.

A decree must be made for the complainant, according to the prayer of the bill, and at defendant’s costs.