GARDNER, J. —
The learned chancellor (judge of the city court of Anniston) has written a very carefully prepared opinion in this case, which is found on page 26 et seq. of the transcript. We agree with the conclusion of law as therein expressed as applicable to this case, and the reporter will set out the opinion of the chancellor, above referred to, in his report of this case.
We think it well, however, to direct attention to a few additional authorities in support of the conclusion reached, as well as to make reference to some of those cited by counsel for appellant, noting some points of difference between them and the instant case.
The following propositions are well settled by the authorities: That no precise or technical words are required in a deed to create a condition subsequent; that conditions subsequent are not favored in the law, and are strictly construed, as they tend to the destruction of estates, and in many instances, “when rigorously exacted, work hardship scarcely reconcilable with good conscience”; and, when there remains a doubt whether the clause in a deed be a covenant or a condition, the court will incline against the latter preferring the former.—Elyton Land Co. v. South & North Ala. R. R. Co., 100 Ala. 396, 14 South. 207; C. M. Zimmerman Mfg. Co. [276]*276v. Daffin, 149 Ala. 380, 42 South. 858, 9 L. R. A. (N. S.) 663, 123 Am. St. Rep. 58.
It is, however, equally well settled by these authorities above cited that whether the language in the deed be a covenant or a condition is a matter of construction, dependent upon the contract, the language employed in the instrument, the circumstances under which the contract was made, the relative position of the parties, and the purpose and object designed to be accomplished. The intention of the parties to the instrument, when clearly ascertained, is of controlling efficacy. We add the cases of Gibbs v. Wright, 5 Ala. App. 486, 57 South. 258; Davis v. Memphis & Charleston R. R. Co., 87 Ala. 633, 6 South. 140; McMahon v. Williams, 79 Ala. 288.
It is also recognized in cases of this character that the fact that the grantee cannot be placed in statu quo is ’ an important factor in determining the question of forfeiture.—13 Cyc. 701.
As the courts lean against conditions subsequent because they work a destruction of estates, so, if the grantor have other adequate remedy, either at law as by suit on the covenant, or in equity for enforcement-of vendor’s lien or specific performance, or by injunctive relief restraining the use of the property beyond the limitation or restriction, a forfeiture will not be declared.
_ Many authorities are cited in note to the case of Ecroyd v. Coggeshall, 21 R. I. 1, 41 Atl. 260, 79 Am. St. Rep. 741, and in note to the case of Hawley v. Kafitz, 3 L. R. A. (N. S.) 741, and in notes to numerous other cases, a review of which is impracticable here. We cite, also, Berkley v. Union Pacific R. R. Co. (C. C.) 33 Fed. 794; Langley v. Chapin, 134 Mass. 82. We will make mention of a few of those relied upon by counsel for appellant in brief.
We are cited to the case of St. Peters Church v. Bragaw, 144 N. C. 126, 56 S. E. 688, 10 L. R. A. (N. S.) 633; [277]*277but in that case it was held that the clause in the deed against the use of the premises as a cemetery would bind the grantee and be enforced in equity, and thus there would be no. interest that would not be adequately protected by regarding the clause as a limitation as to the use of the property. The opinion makes use of the following quotation: “If we can contsrue this clause as an obligation to abstain from doing the thing described, which, by acceptance of the deed, became binding upon the grantee as an agreement enforceable in behalf of any interest entitled to invoke its protection, I think we are in conscience bound to give that construction, and thereby place ourselves in accord with that inclination of the law, which regards with disfavor conditions involving the forfeiture of estates.”
In the case of Hawley v. Kafitz, 148 Cal. 393, 83 Pac. 248, 3 L. R. A. (N. S.) 741, 113 Am. St. Rep. 282, there had been paid a part of the consideration, and the opinion states that it does not appear that any specified purpose was to be'attained by the grantor in having the building erected on the lot, or that its erection was the sole consideration.
In the case of Shreve v. Norfolk & Western R. R. Co., 109 Va. 706, 64 S. E. 972, 23 L. R. A. (N. S.) 771, it appears that upon the lots the company had erected a section house and switchings and sidings, that it had never refused to build the depot, but had repeatedly stated it would do so as soon as business at that point would justify it, no time being fixed in the deed for the erection of the depot; and the opinion further, states that the conduct of the grantor in the execution of other conveyances indicated that he considered the language in the deed as a covenant.
In the case of Rawson v. School District No. 5, 7 Allen (Mass.) 125, 83 Am. Dec. 670, often cited, the deed [278]*278expressed the grant to the town “for a burying place forever.” It does not appear that this specific use would inure specially to the benefit of the grantor, and the opinion states that it cannot be said that the sole douse or consideration which induced the grantor to convey the estate to the town was that it should be used for the specific purpose designated.
Turning to our own authorities, relied upon by counsel in brief, it will be noted that in the case of Elyton Land Co. v. South & North Ala. R. R. Co., supra, the railroad had been built on the land, and the parties could not be placed in statu quo, and, as it appeared the grantor desired the building of the road so as to enhance in value its property, it was unreasonable to suppose a forfeiture of the estate was contemplated by the parties. Such a result would have worked a great hardship, not “reconcilable with good conscience,” and this of itself might tend at least to a refutation of the idea that a forfeiture was intended.
The case of Piedmont Land & Improvement Co. v. Piedmont Foundry & Machine Co., 96 Ala. 389, 11 South. 332, expressly states that, if a rescission should be decreed, it would not be practicable for the parties to be placed in the situation they occupied when the contract was made. Furthermore, it appears that the bill was filed for rescission of the contract, based upon a fraudulent promise of the grantee, or upon its mere failure to comply with the promise as to the operation of its work. The opinion does not discuss the question of conditions subsequent, and can be of no material aid to us here.
In the case of Zimmerman Manufacturing Co. v. Daffin, supra, it is noted that the entire consideration and full value for the trees had been paid. There are, however, no points of similarity between that case and the one here under consideration.
[279]*279In the case of Gardner v. Knight, 124 Ala. 273, 27 South. 298, it is shown that the deed was made by the father to Lucy Knight, his daughter, and that the grantor reserved a life estate, and accepted, as part at least of the consideration, the written obligation of J. C. Knight to provide for him. The opinion states that the •grantor received from J. C.
Free access — add to your briefcase to read the full text and ask questions with AI
GARDNER, J. —
The learned chancellor (judge of the city court of Anniston) has written a very carefully prepared opinion in this case, which is found on page 26 et seq. of the transcript. We agree with the conclusion of law as therein expressed as applicable to this case, and the reporter will set out the opinion of the chancellor, above referred to, in his report of this case.
We think it well, however, to direct attention to a few additional authorities in support of the conclusion reached, as well as to make reference to some of those cited by counsel for appellant, noting some points of difference between them and the instant case.
The following propositions are well settled by the authorities: That no precise or technical words are required in a deed to create a condition subsequent; that conditions subsequent are not favored in the law, and are strictly construed, as they tend to the destruction of estates, and in many instances, “when rigorously exacted, work hardship scarcely reconcilable with good conscience”; and, when there remains a doubt whether the clause in a deed be a covenant or a condition, the court will incline against the latter preferring the former.—Elyton Land Co. v. South & North Ala. R. R. Co., 100 Ala. 396, 14 South. 207; C. M. Zimmerman Mfg. Co. [276]*276v. Daffin, 149 Ala. 380, 42 South. 858, 9 L. R. A. (N. S.) 663, 123 Am. St. Rep. 58.
It is, however, equally well settled by these authorities above cited that whether the language in the deed be a covenant or a condition is a matter of construction, dependent upon the contract, the language employed in the instrument, the circumstances under which the contract was made, the relative position of the parties, and the purpose and object designed to be accomplished. The intention of the parties to the instrument, when clearly ascertained, is of controlling efficacy. We add the cases of Gibbs v. Wright, 5 Ala. App. 486, 57 South. 258; Davis v. Memphis & Charleston R. R. Co., 87 Ala. 633, 6 South. 140; McMahon v. Williams, 79 Ala. 288.
It is also recognized in cases of this character that the fact that the grantee cannot be placed in statu quo is ’ an important factor in determining the question of forfeiture.—13 Cyc. 701.
As the courts lean against conditions subsequent because they work a destruction of estates, so, if the grantor have other adequate remedy, either at law as by suit on the covenant, or in equity for enforcement-of vendor’s lien or specific performance, or by injunctive relief restraining the use of the property beyond the limitation or restriction, a forfeiture will not be declared.
_ Many authorities are cited in note to the case of Ecroyd v. Coggeshall, 21 R. I. 1, 41 Atl. 260, 79 Am. St. Rep. 741, and in note to the case of Hawley v. Kafitz, 3 L. R. A. (N. S.) 741, and in notes to numerous other cases, a review of which is impracticable here. We cite, also, Berkley v. Union Pacific R. R. Co. (C. C.) 33 Fed. 794; Langley v. Chapin, 134 Mass. 82. We will make mention of a few of those relied upon by counsel for appellant in brief.
We are cited to the case of St. Peters Church v. Bragaw, 144 N. C. 126, 56 S. E. 688, 10 L. R. A. (N. S.) 633; [277]*277but in that case it was held that the clause in the deed against the use of the premises as a cemetery would bind the grantee and be enforced in equity, and thus there would be no. interest that would not be adequately protected by regarding the clause as a limitation as to the use of the property. The opinion makes use of the following quotation: “If we can contsrue this clause as an obligation to abstain from doing the thing described, which, by acceptance of the deed, became binding upon the grantee as an agreement enforceable in behalf of any interest entitled to invoke its protection, I think we are in conscience bound to give that construction, and thereby place ourselves in accord with that inclination of the law, which regards with disfavor conditions involving the forfeiture of estates.”
In the case of Hawley v. Kafitz, 148 Cal. 393, 83 Pac. 248, 3 L. R. A. (N. S.) 741, 113 Am. St. Rep. 282, there had been paid a part of the consideration, and the opinion states that it does not appear that any specified purpose was to be'attained by the grantor in having the building erected on the lot, or that its erection was the sole consideration.
In the case of Shreve v. Norfolk & Western R. R. Co., 109 Va. 706, 64 S. E. 972, 23 L. R. A. (N. S.) 771, it appears that upon the lots the company had erected a section house and switchings and sidings, that it had never refused to build the depot, but had repeatedly stated it would do so as soon as business at that point would justify it, no time being fixed in the deed for the erection of the depot; and the opinion further, states that the conduct of the grantor in the execution of other conveyances indicated that he considered the language in the deed as a covenant.
In the case of Rawson v. School District No. 5, 7 Allen (Mass.) 125, 83 Am. Dec. 670, often cited, the deed [278]*278expressed the grant to the town “for a burying place forever.” It does not appear that this specific use would inure specially to the benefit of the grantor, and the opinion states that it cannot be said that the sole douse or consideration which induced the grantor to convey the estate to the town was that it should be used for the specific purpose designated.
Turning to our own authorities, relied upon by counsel in brief, it will be noted that in the case of Elyton Land Co. v. South & North Ala. R. R. Co., supra, the railroad had been built on the land, and the parties could not be placed in statu quo, and, as it appeared the grantor desired the building of the road so as to enhance in value its property, it was unreasonable to suppose a forfeiture of the estate was contemplated by the parties. Such a result would have worked a great hardship, not “reconcilable with good conscience,” and this of itself might tend at least to a refutation of the idea that a forfeiture was intended.
The case of Piedmont Land & Improvement Co. v. Piedmont Foundry & Machine Co., 96 Ala. 389, 11 South. 332, expressly states that, if a rescission should be decreed, it would not be practicable for the parties to be placed in the situation they occupied when the contract was made. Furthermore, it appears that the bill was filed for rescission of the contract, based upon a fraudulent promise of the grantee, or upon its mere failure to comply with the promise as to the operation of its work. The opinion does not discuss the question of conditions subsequent, and can be of no material aid to us here.
In the case of Zimmerman Manufacturing Co. v. Daffin, supra, it is noted that the entire consideration and full value for the trees had been paid. There are, however, no points of similarity between that case and the one here under consideration.
[279]*279In the case of Gardner v. Knight, 124 Ala. 273, 27 South. 298, it is shown that the deed was made by the father to Lucy Knight, his daughter, and that the grantor reserved a life estate, and accepted, as part at least of the consideration, the written obligation of J. C. Knight to provide for him. The opinion states that the •grantor received from J. C. Knight “his legal and binding obligation to provide for him, and this was the consideration for which he conveyed the land — this was what he stipulated for in the instrument.” The grantor, therefore, accepted the “legal and binding obligation” for support of a third person, not the grantee, and, as the opinion says, “this was what he stipulated Tor ill the instrument.”
In the case of Brown v. Chicago & N. W. R. R. Co. (Iowa) 82 N. W. 1003, it would seem that the decision was to a considerable extent influenced by the fact that there was no obligation imposed upon the grantee by the instrument; the court regarding the absence of such obligation inconsistent with the view that the provision in question created a covenant merely.
In the instant case it is clear there is an absence of any legal and binding obligation on the part of the grantee created by this deed. The grantor could not obtain relief by way of specific performance.—Electric Lighting Co. v. Mobile St. Ry., 109 Ala. 190, 19 South. 721, 55 Am. St. Rep. 927; Iron Age Pub. Co. v. Western Union Telegraph Co., 83 Ala. 498, 3 South. 296, 3 Am. St. Rep. 702; Tex. & Pac. Ry. Co. v. Marshall, 136 U. S. 394, 10 Sup. Ct. 846, 34 L. Ed. 385.
Here the sole consideration for the deed was the benefits to be derived from the building of the road, and which benefits were especially intended, so far as this deed was concerned, to' innre to the grantor only. Here we have no legal and binding obligation of the grantee which can be enforced in equity.
[280]*280That a suit at law fox' damages as for a breach of a covenant, from the averments of the amended bill, would be a wholly inadequate remedy, we entertain no doubt.—M. & M. Ry. Co. v. Gilmer, 85 Ala. 422, 5 South. 138. The pax'ties may be placed in statu quo. There has been no change to the injury of the grantee.
To use the language found in the opinion of the chan- • cellor: “If the right of way shall remain intact forever, though no railroad be constructed, the complainant has pax'ted with its property for a definite purpose of benefit to itself, which purpose it has no power to accomplish or compel, and there is no other benefit of any equivalent value to be derived from the conveyance, but on the other hand, a positive and serious detriment, or'*1 at least the continuous possibility of the same.”
Of course what is here said must not be understood as indicating a view that, because the grantor would thus be left without any adequate x'emedy, it would of consequence be entitled to the relief sought, for principles of law are not to be declared on the doctxfine ab inconvenienti, but merely as indicating that the fact that the grantor has thus voluntarily placed itself in such situation is at least wox'thy of some consideration in detex'mining the intention of the party at the time of the execution of the conveyance, when considered in the light of “the application of good sense and sound equity to the object and spirit of the contract-in the given case.”
Upon consideration of the avex’ments of the bill as amended, showing the contract made, the language used in the instx’ument as indicating the sole consideration to be the benefits to be derived from the building of the road then in contemplation, the relative position of the parties, the circumstances under which the deed was execxxted, and the object and purpose designed to be ac[281]*281complished, we are persuaded that the bill has equity, and that it is sufficient as against the attack here made.
After a careful investigation of the authorities, we find none which, in our opinion, militate against the conclusion here reached. We also agree with the opinion that, no time having been fixed by the deed, the road was to be built within a reasonable time (Murrell v. Whiting, 32 Ala. 54; 23 Am. & Eng. Ency. Law, 585), and that the reasonableness of the time necessary to build the railroad would necessarily be largely a question of fact. We are also of the opinion, in view of the fact that the contract was made in the light of the ordinances and franchises of the city of Anniston, that, under the averments of the bill as amended, the time fixed for the expiration of such franchise would be at least prima facie the reasonable time here intended by the law, although of course not conclusive thereof. Under the averments of the bill, this is a question of fact, not affecting the equity of the bill.
One of the assignments of demurrer takes the point that the Atlanta & Birmingham Air Line Railway is improperly joined as a party respondent. This appeal is by the respondent Seaboard Air Line Railway, and the respondent Atlanta & Birmingham Air Line Railway is not a party to this appeal. As a misjoinder could be taken advantage of only by the latter, it results that this appellant can take nothing by this assignment under our authorities.—Worthington v. Miller, 134 Ala. 420, 32 South. 748.
We conclude that the chancellor correctly ruled, and his decree overruling 'the demurrer to the bill as amended is therefore affirmed.
Affirmed.
Anderson, C. J., and Mayfield and Somerville, JJ., concur.