Kilpatrick v. Graves

Peyton, C. J.,

dissenting.

The material facts of this case are these: In the year 1860, William A. Kilpatrick conveyed to Thomas Stewart, Hugh Dunning, George W. Killcrease, James Crawford, Cornelius Trawick, William Graves, and John C. Nixon, trustees of the Methodist Episcopal Church South, at Hazelhurst, a certain lot or parcel of land situate in said town of Hazelhurst, and particularly described in the deed of conveyance, for the location of a church thereon, for the use of the members of said church, according to the rules of the discipline which may from time to time be agreed upon and adopted by the ministers and preachers of the said church at their general conferences, and in further trust and confidence that they shall at all times forever thereafter permit such ministers and preachers as shall be authorized by the general conference to preach and expound from time to time God’s holy word therein.

A church was erected on said lot, and was used as a house of worship by the members of said church, from the time of its erection until some time in the year of 1871, when the trustees and officers of said church removed said church building off said lot to another lot 800 yards west of it in said town of Hazelhurst, where it is now used as a house of worship and for the performance of religious services by the members of said church.

In said year of 1871, the trustees of said church conveyed the lot of land in controversy to E. G. Cook, who conveyed the same to one Thomas E. Stanley, who erected thereon a blacksmith’s *442shop, and has ever since used the same as a work and blacksmith’s shop.

Upon a bill filed by said William A. Kilpatrick in the chancery court of Copiah county, against the trustees of said church, E. G. Cook and Thomas E. Stanley, for a reconveyance of said lot, setting forth these facts, that court on a final hearing of the cause, decreed a reconveyance of said property to the complainant, and from this decree the case comes into this court by appeal.

It is here contended by the counsel for the appellants that the appellee’s deed of conveyanpe was founded on a valuable consideration, and that the trustees of the church thereby acquired an absolute estate in fee simple in the property, and that Cook and Stanley as Iona fide purchasers from them for valuable consideration, without notice of any contingent right of the appellee, acquired an indefeasible estate in fee simple to said lot of ground.

On the part of the appellee, it is insisted that no money or other valuable consideration was ever paid to him for said lot of land, that the consideration mentioned in his deed of conveyance was merely nominal, and that said conveyance was a pure and simple donation of the lot for the specific object and purpose of being a location and site for a church for divine service, according to the rules and discipline of the Methodist Episcopal Church South.

The rules which prevent the introduction of parol evidence to contradict or vary a writing have no application where it is offered to show a want or failure of consideration. Buckels v. Cunningham, 6 S. & M., 358, and Matlock v. Livingston, 9 S. & M., 489.

The recital in the deed, acknowledging the receipt of $100, is prima facie evidence of the fact, but does not prevent the introduction of other proof showing that nothing was paid. White v. Miller, 22 Vt., 380; Glenn v. Grover, 3 Md., 212; Spalding v. Brent, 3 Md. Chan. Dec., 411; Wooden v. Shotwell, 3 Zabr., 465, and Ayres v. McConnel, 15 Ill., 230. It is admissible to prove the true consideration, though a different consideration be *443expressed in the written instrument. Marsh v. Lisle, 5 George, 173.

Hugh Dunning, who was one of the trustees of the church, and who wrote and took the deed to the lot, as a witness on the behalf of the appellants, in his answer to the third cross-interrogatory, whether or not the complainant ever received the $100 mentioned in the deed, testified that he never did receive the $100 or any part of it, and that the conveyance was a donation of the land to the church.

William A. Kilpatrick testified that no consideration was ever paid him for said property, and that his conveyance thereof to the trustees was a voluntary donation for the express purpose of establishing and maintaining a Methodist church on that ground.

The evidence clearly establishes the fact that the conveyance made by the appellee to the trustees of the Methodist Episcopal Church South, at Hazelhurst, of the lot of land in controversy, was a donation for the specific purpose of making it the site of a Methodist Church, to be thereon erected and maintained.

The question presented by the record for the decision of this court is, Did the said lot revert to the grantor upon the removal of said church off the ground, donated to another and different lot of ground some 800 yards distant from it, with the avowed intention to abandon it as the site of a-Methodist Church ?

The estate created by the conveyance in this case is not properly an estate on condition, either precedent or subsequent. It is not an estate on a condition precedent, upon the performance of which the estate would become absolute and indefeasible. Nor is it an estate on condition subsequent, by the nonperformance of which the estate already vested may be defeated. But it is a base or qualified fee. This estate is a fee, because by possibility it may endure forever; yet as that duration depends upon the concurrence of collateral circumstances, which qualify and debase the purity of the donation, it is therefore a qualified or base fee. 2 Black. Com., 109. The idea of this estate is illustrated in that class of conveyances which limit the estate conveyed to some *444particular use or purpose. For example, when lands are conveyed to a railroad company, so long as used for the purpose of the railroad, it constitutes a base or qualified fee, because the estate ceases whenever the company ceases to use the land for the purpose named. The same is true of conveyances limited to an occupation for specified purposes of any other character. Bingham on Beal Estate, 22. . So a grant to a canal company, “as long as used for a canal,” has been held a qualified fee. State v. Brown, 3 Dutch., 20. This estate is liable to be defeated, as before stated, by something collateral to it which may never happen, and this defeasible character of the estate distinguishes it from a technical fee simple. 1 Washb. on Real Estate, 67.

The contingency, which, when it happens, will determine the estate, cannot properly be called a condition, but a limitation. Walsingham’s Case, Plowd., 557, and 1 Washb. on Real Estate, 77.

If this is a qualified fee, as I think I have shown it to be, the doctrine of a bona fide purchase for valuable consideration without notice cannot affect the right of the grantor to the reversion upon the determination of this estate. For when the owner of a determinable fee conveys in fee, the determinable quality of the estate follows the transfer; and this is founded upon the maxim of the common law, that nemo potest plus juris transferre in alium quam ipse habet. Within that rule the proprietor of the qualified fee has the same rights and privileges over the estate as if he was a tenant in fee simple; all the estate is in the grantee, notwithstanding the qualification, and no remainder can be limited over, nor any reversion expectant thereon, other than the possibility of a reverter when the estate determines or the qualification ceases. 4 Kent, 9.

It is a well known rule, imported into our own from the civil law, that no man can transfer a greater right or interest than he himself possesses. The owner, for example, of a base or determinable fee, can do no more than transfer to another his own estate, or some interest of inferior degree created out of it. Of this rule a familiar instance is noted by Pothier, who observes that where prescription has begun to run against a creditor, it will continue to *445do so as against his heirs, executors or assignees, for the latter succeed only to the rights of their principal, and cannot stand in a better position than he did himself.

The general rule of law is undoubted, that no one can transfer a better title than he himself has. Nemo dat quod non habet. To this rule, however, there are some exceptions, one of which arises out of the rule of the law-merchant as to negotiable instruments. Another arises by a sale in market overt where such exists, and a third exception to the rule occurs in connection with the important subject of stoppage in transitu. Broom’s Legal Maxims, 350, top page.

Cook, in his answer to the bill of complaint, does not set up the defense that he was a purchaser for valuable consideration without notice of the contingent right of Kilpatrick to the reversion of the property. Nor can Stanley, who suffered a decree pro confesso to be taken against him, make this defense in this court. But even had Cook and Stanley interposed this defense in the court below, it could not have availed them, for the reason that they respectively took the estate upon the exchange of the one and the purchase of the other, with the defeasible quality attached to it, and could acquire no larger estate or better title than the trustees had when the exchange of lots was made between them and Cook. 1 Washb. on Real Estate, 79; 1 Preston on Estates, 440; and Lead. Cas. 606.

When a tract of land was granted to the board of county police, for the use and benefit of the county of Neshoba, for a county site for a court house, and the board of police entered upon the land, built a court house, laid off town lots and sold them, but subsequently removed the county site and court house from said tract of land to another tract, some three or four miles distant, it was held that the land reverted to the grantor. Daniel v. Jacoway et al., Freeman’s Ch., 59. The same doctrine was maintained in the case of the Police Jury v. Reeves, 6 Martin (N. S.), 221.

The law seems to be well settled that where estate is held sub*446ject to be defeated by the happening of a contingency, the estate will pass to an alienee subject to the occurrence of the contingency, and will be determined by the happening of the contingency. So that neither Cook nor Stanley took a larger estate in, or better title to, the property in dispute than the trustees received by the conveyance to them for the benefit of the church.

Upon the whole, I can perceive no error in the action of the court below, and therefore think the decree of said court ought to be affirmed.

There was a petition filed for a reargument in this case, which was refused; upon which

Tarbell, J., delivered the opinion of the court.

The reasons advanced in support of the petition for reargument have been examined and considered. The deed contains no express stipulation for reversion of title in any event, and it was signed without being read by the grantor. If he intended any reversion for any cause, this was certainly a great oversight and want of prudence. Reversion of title in such cases is easily secured by a single paragraph in the conveyance.

The clauses of the grant relied upon by counsel as showing the intention of the grantor to convey upon conditions, the nonobservance of which should result in a reversion of title, have been reconsidered without any change of opinion. These clauses, as construed by a majority of 'the court, indicate no such intention nor conditions as are contended for. It is suggested in the present argument that the conveyance was for the use and benefit of the local church, and not for the body of the M. E. Church. On the contrary, the deed, by its terms, is to the church at large, to be used according to the rules of its discipline.

The deed is in fee to the trustees and their successors forever. The clause and only clause of the conveyance, which can be claimed as indicating the terms insisted upon by complainant, is this: That the trustees “shall at all times, forever hereafter, per*447mit such ministers and preachers belonging to the said church as shall, from time to time, be duly authorized * * to preach and expound God’s holy word therein.”

The reasonable and consistent reason of this clause is in the fact, 1, that it is transferred from the discipline of the church to the deed; and, 2, that it was manifestly intended to prevent the exclusion from its pulpit of duly accredited preachers in good standing, and consequently of good character and repute, through the schisms and divisions which have fallen upon the church of late years.

Manifestly, this clause has no reference to title, and was not intended, on the face of the deed, to affix any limitation or condition thereto. But the deed was not read by the grantor before signing, and he, therefore, did not know its contents. It was dictated and drawn by the trustees. A case of fraud is neither pretended, charged or made out. Instead, the case rests and is based upon the construction of the terms of the grant. Upon this theory, a majority of the court adhere to the judgment heretofore pronounced, and refuse a reargument.