
    Yazoo & Mississippi Valley Railroad Co. v. Lakeview Traction Co.
    [56 South. 393.]
    1. Deeds. Construction. Forfeitures. Conditions subsequent. Breach„ Right of re-entry. Limitations. Rents.
    
    The law does not look with favor upon forfeitures; and the provisions of a deed in oases of doubt or obscurity are construed most strongly against the grantor; all that is required is a substantial compliance with a condition subsequent and no restrictions or limitations will be enforced which cannot fairly be inferred from the terms of the instrument.
    2. Deeds. Construction. Intention of the parties.
    
    In cases of ambiguity in contracts the contemporaneous construction which the parties thereto placed upon the contract should be looked to in order to ascertain the intention of the parties.
    
      3. Railroad. Right of way. Deed. Construction. Condition subsequent.
    
    Where the original owner of land conveyed to a railroad a right of way and two' lots adjoining the right of way in consideration that the railroad was to locate a depot and build section houses on the two lots, but upon the express condition that in case the railroad or its assigns should at any time remove said depot or section houses or both off the land then the same was to revert to the grantors, their heirs or assigns, and thereafter the said road moved the depot building off the lot upon which it was built, leaving the section houses on the other lot, held, that the removal of the depot operated as a breach of the condition subsequent as to the lot upon which it was built, but not as to -the other lot.
    
      f4. Deeds. Construction.
    
    In construing a deed the court must give force and effect to every word used in the instrument, if by so doing harmony can be preserved. It cannot strike out of the deed any word which by so doing will alter its meaning.
    •T>. Deeds. Breach of conditions. Condition subsequent. Vendor and vendee.
    
    When a remote vendor has conveyed land on a condition subsequent, a subsequent vendee claiming through him acquires the rights of such remote vendor on a breach of such condition, notwithstanding an exception' in the deed to such vendee, merely inserted to protect the grantor therein on his covenants of warranty.
    '6. Same.
    Where an exception in a deed is repugnant to the granting clause of such deed it is void.
    ‘.7. Deeds. Condition subsequent. Breach. Right of re-entry.
    
    Upon a breach of a condition annexed to the grant of a freehold estate, the title conveyed is not void, but is only voidable by the acts of the grantor or his heirs, who must take advantage of the condition and repossess himself of the estate by actual re-entry, or by some act equivalent thereto, and by manifesting an intent to terminate the estate; and this rule applies even though the land is expressly conditioned to revert upon breach of the condition.
    
      8. Same.
    But the election to insist upon a forfeiture or a waiver of it, need not he made promptly after the breach or knowledge thereof.
    9. Laches. Limitation.
    
    The doctrine of laches, pure and simple, does not obtain in this state. No time short of the time prescribed by the statutes of limitations will bar an action.
    10. Ejectment. Rents. Recovery.
    
    One who recovers in ejectment is entitled to recover rents under the statute from the date of the institution of the suit up to the date of the trial, the bringing of the suit being the equivalent of an act of re-entry.
    Appeal from the circuit court of DeSoto county.
    Hon. W. A. Roane, Judge.
    Suit in ejectment by the Lakeview Traction Company against the Yazoo & Mississippi Yalley Railroad Company. From a judgment granting relief in part to the plaintiff, defendant appeals and plaintiff prosecutes a cross appeal.
    The deed from Montana to the railroad company is as follows:
    “This indenture, made and entered into this 7th day uf February, A. D. 1884, by and between A. P. Montana and his wife, Lizzie C. Montana, parties of the first part, and the New Orleans, Baton Rouge, Yicksburg & Memphis Railroad Company, parties of the second part, witnesseth: That for and in consideration of the sum of ■one dollar in hand paid to the said first parties, the receipt whereof is hereby acknowledged, and for the further consideration that the said second party agrees to locate a depot and build sections houses on certain lots of ground hereinafter described, the parties of the first part have bargained, granted, and conveyed, and do hereby grant, bargain, and convey, unto the said railroad company, party of the second part, a right of way one hundred feet wide through the place on Horn Lake lately purchased by parties of the first part from Mrs. Martha. A. G-riffin, aud two lots or parcels of land in same tract, more particularly described as follows, to-wit: In section 22, township 1, range 9 west, in De Soto county, state of Mississippi, the lot or parcel of land on the east, side of the railroad hereby conveyed commences at the intersection of Montana’s southern line and the line of said right of way, and runs 374 feet along said right of way to a stake; thence S. 77° 20' E. 210 feet; thence south 12° 40' W. 294 feet; thence along Montana’s southern line to the-beginning — containing 1.61 acres more or less. The lot or parcel of land on the west side of said railroad hereby conveyed commences' at a stake where the said right of way crosses the north line ,of the Horn Lake public road, and runs at 75° 30' west 157% feet; thence north 14° 30' E. 210 feet; thence 75° 30' west 157% feet; thence along said right of way to the beginning — containing three-fourths of an acre more or less.. The said right of way to extend fifty feet on each side of the center of the said railroad as now built. To have and to hold unto the said party and assigns forever. And the said second party shall have the right to dig-earth, quarry rock, cut timber, and do such other things on said right of way and lots as are necessary and convenient in constructing and operating its line of railroad thereon. And the said parties of the first partr their heirs, or legal representatives do hereby covenant, to forever warrant and defend said title against all claims; but this conveyance is made upon express condition and agreement that, in case the second party or their assigns should at any time in the future remove the said depot or section houses, or both, off the land here described, then and in that case the same shall at once revert to the said parties of the first part, their heirs, and assigns. In witness whereof, we have hereunto set our hands and seals the day and year above written.”
    
      
      Mayes and Long street, for appellant,
    filed an elaborate brief contending:
    1st.- That there has been no breach of condition by the railroad. Citing 139 Fed. 60; Jones on Law of Eeal Property in Conveyancing, page 678; 13 Cyc. 689.
    2d. That even though the court does not sustain the above contention and. holds that the depot and section houses should not only be located, but kept on the two parcels of ground, the east and west lots, we submit that there has been no breach, but on the contrary, a full performance of the condition imposed, citing 13 Cyc. 1042; Pittsburg Railway Go. v. Rose, 24 Oh. St. 219, 229; 3 Words and Phrases, page 2005; State v. R. R. Co., 18 L. E. A. 505; McGrath v. R. R. Go., 24 N. W. 854; Rabidon v. R. R. Go., 39 L. E. A. 405; Grosse v. R. R. Go., 65 N. W 185; Magher v. R. R. Go., 45 N. Y. 514, 520; 3 Elliot, page 943; 33 Cyc. 178;' Jefferson v. Barbou,r, 89 Ind. 375; 13 Cyc. 696; R. R. Go. v. Cohn, 15 L. E. A. (N. S.) 595; State v. R. R. Go., 86 Miss. 172; R. R. Go. v. Ragsdale, 54 Miss. 200; Miller v. Tunica County, 67 Miss. 582; 13 Cyc. 700.
    3d. Appellee cannot take advantage of the alleged breach. Citing R. R. Go. v. Neighbor, 51 Miss. 45; 13 Cyc.-; Rannels v. Rose, 145 Fed. 296; Lewis v. Lewis, 92 Am. St. Eep. 240; Wadley Lbr. Go. v. Lott, 60 S. E. -836; Bonniwell v. Madison, 77 N. W. 530; Griffith v. Railway Go., 15 Ky. L. Eep. 271; 13 Cyc. 708; Gould v. Richards, 16 Gray 309; Gonger v. Duryce, 90 N. Y. 592; ■Granite Bldg. Assn. v. Green, 54 Atl. Eep. 792; Barrie v. Smith, 10 N. W. 168; Brown v. Wrightman, 90 Pac. 457.
    
      Percy ds Hughes, for appellee and cross-appellant,
    filed an extended brief, citing:
    60 L. E. A. 751; Bovier v. Baltimore db New York Railroad Go. (N. J.), reported in 60 L. E. A. 751; Section 1187 of the Code of 1880, section 2433 of the Code of 1892, and section 2762 of the Code of 1906; Wright v. Harcly, 76 Miss. 524; Hamel v. Minneapolis, St. P. é S. S. M. By. Company, decided by the supreme court of Minnesota in 1906, reported in 107 N. W. Rep. 139, and in 97 Minn. Rep. 334; Lyman v. Suburban Railroad Company, 190 111. 320, s. c. 52 L. R. A. 645; St. Louis, Iron Mountain. & Southern Railroad v. Berry, 86 Ark. 309; Arkansas Central Railroad Company v. Smith, 71 Ark. 189; Howell v. Railroad Company, 37 Hun (N. Y.) 381; Railroad v. Hood, 66 Ind. 580; Davenport Railroad v. Rogers, 39 la. 298.
   McLean, J.,

delivered the opinion of the court.

This is an action of ejectment, brought by appellee for the recovery of two lots or parcels of land, and also for rents. The plaintiff recovered judgment in the court below for one of the lots, but rents were denied. The defendant appeals, and the plaintiff in the court below prosecutes a cross-appeal, and assigns as error, first, that it was entitled to recover both lots sued for, and also the rental value of the property; while the contention of the appellant is that the plaintiff should not have recovered either lot. There is no question as to the title, but the whole question hinges on the construction of the deed from one Montana to defendant in the court below and its predecessors. This conveyance was executed by Montana and wife on the 7th day of February, 1884, is found on pages 15, 16, and 17 of the record, and the reporter will copy this deed in full in reporting this case.

In August, 1882, Mrs. Martha A. Griffin conveyed to the railroad company an easement in this strip of land one hundred feet wide as and for a right of way; Providence Bassit et al. conveyed an easement in this strip of land of same width, for the same purpose, to the railroad company on September 6, 1882; and Providence Bassit et al. conveyed certain lands to Montana, February 1, 1884. On April 13, 1883, Martha A. Griffin conveyed to Montana the lands through which the right of way of the railroad company runs, and it will be observed.that the deed from Montana to the railroad company recites that the grantor conveys a strip of land one hundred feet wide through the place on Horn Lake, lately-purchased by Montana from Martha A. Griffin. On. March 27, 1888, Montana and wife conveyed to J. J. Sheppard the lands which include-the above-named right of way and the two lots or parcels of land sued for^hut the deed contains this clause: “But it is expressly agreed and understood between the parties hereby that-this conveyance is not intended to embrace or convey the-right of way and depot and section house grounds heretofore conveyed to the Mississippi Yalley or the L., N. O. & T. Railway.” In February, 1896, Sheppard conveyed this land to R. L. Boone and Ben Boone. In March, 1896, Montana quitclaimed to J. J. Sheppard all of the-lands described in his deed of March 27, 1888, without reservation or exception. In September, 1897, R. L. Boone.devised his one-half interest in the land to Ben* Boone, and on June 1, 1906, Ben Boone, by deed with-general covenants of warranty, conveyed these lands to-the Lakeview Traction Company, the plaintiff and the-court below; but this conveyance contains the following provision: “But there is excepted from this conveyance-the rights which have been granted to the Yazoo & Mississippi Railroad Company and its predecessors, by the-deeds from Providence Bassit and wife to the Vicksburg- & Memphis Railroad Company, the deeds from Mrs. Martha A. Griffin to Memphis & Vicksburg Railroad' Company, and in the deed from A. P. Montana and wife-to the New Orleans, Baton Rouge, Vicksburg & Memphis-Railroad Company, and in the deed from Ben Boone to-the Yazoo & Mississippi Railroad Company.”

It is under the Boone deed of June 1, 1906, that plaintiff claims the property. The railroad was constructed' between the years 1882 and 1884. After the execution-. of the Griffin deed to the railroad company, and in one of the conveyances executed about 1884, the road is described as having been constructed or built. Shortly •after the execution of the deed by Montana to the railroad company in 1884, the railroad company constructed •a freight and passenger depot and water-closet and pumping station, the major portion of the depot being upon the right of way, while the smaller part was on one •of the lots described in this conveyance. This lot we will designate as the “west lot,” and on the other lot, which we will call the “east lot,” section houses were built. The east lot is on the east side of the railroad right of way, and the west lot is on the west side of the right •of way, not directly opposite each other, hut the west lot is northwest of the east lot. The depot building and station platform, pumping station, and water-closet were on the west side of the railroad track and adjacent thereto. About 1904 or 1905 the railroad company removed its freight and passenger depot and platform from this west lot, and placed them on the east side, and almost ■directly opposite from the former site. The distance from the western edge of the new depot to the eastern side of the old depot is only about fifty-three feet. The pumping station and water-closet, or privy, remain where they were originally placed. The section houses, on the east lot, have not been removed, hut remain as heretofore.

The plaintiff’s position is that Montana, in his deed to the railroad company, reserves to himself, his heirs, and assigns the right to re-enter and take possession of the two lots conveyed, in the event either the depot or the section houses are removed from either lot, and, further, that a removal of the depot buildings and platform has been made, and hence the plaintiff, which is the assignee of Montana, is entitled to recover both lots or parcels of lands. The contention of the railroad company is. first, that not only must there he a removal of the depot and platform, but also of the section houses, before the right to enter upon either lot accrues; second, that there has not been any breach of the condition expressed in the deed, and, further, that, even if a breach has happened as to maintaining the depot, it cannot affect the right of the railroad to hold the lot upon which the section houses were built, as the section houses still remain upon the lot on the east side of the right of way.-

In limine, it may be said that the law does not look with favor upon forfeitures; second, that the provisions of a deed in cases of doubt or obscurity are construed most strongly against the grantor; and, third, that all that is required is a substantial compliance with a condition subsequent, and no restrictions or limitations will be enforced which cannot be fairly infered from the terms of the instrument.

"We will first examine the Montana deed, and see just exactly what are its provisions. In the granting clause it recites that for the consideration the grantee “agrees to locate a depot and build section houses on certain lots of ground hereinafter described.” This agreement to locate a depot, etc., is not the condition, but is the covenant, which was performed by the grantee. Tet, in order to ascertain upon what part or parcel of land the buildings were to be located and maintained, it is competent — indeed, material — to take into consideration this granting clause, in order to determine the intention of the parties. The grantee then conveys a right of way through lands lately purchased by him from Mrs. Martha A. Griffin, and then, in addition, two separate and distinct lots, specifically described by metes and bounds, courses and distances, and then follows that portion of the conveyance which is denominated the “condition subsequent,” to wit: “But this conveyance is made upon express condition and agreement that, in case the second party or their assigns should at any time iñ the future remove the said depot' or section houses, or both, off the land here described, then and in that case, the same shall at once revert to the said parties of the first part, their heirs, and assigns.” The defendant contends that under this provision, if the breach has occurred, the grantor has the right, not only to recover the two lots, but also the right of way, for the reason that the language is “the land here described.” “But,” says the •appellant, “such a construction is impossible.” In answer it may be said that, while Montana undertook to convey the right of way, yet as a matter of fact the railroad company already had an easement, by a previous conveyance, to this right of way, and it would be a violent presumption to indulge that the company would be willing to accept a conveyance of two small lots, of but little value, upon the condition that if, in the future, it should fail to maintain a depot, etc., thereby forfeiting this most valuable piece of property, to wit, the right of way — that which to it was essential, and absolutely necessary to the maintenance of its physical structure, the roadbed. Common sense would necessarily dictate the unwisdom of such a contract upon the part of the railroad company. In order to ascertain the parties, we must look to each and every part and portion of the instrument, the object and purpose, the situation and surroundings of the parties, as well as their then existing rights. We have seen that the Montana deed, while it undertook to convey the right of way, yet conferred no greater right than the company already enjoyed, in so far as maintaining its roadbed and track is concerned. The expression “the land here described” evidently must be read and interpreted in the light of that'which precedes it, to wit: First, in the granting clause, the depot, etc., must be erected upon “certain lots of ground hereinafter described;” and, second, “the land here described,” as expressed in the condition subsequent clause, must be that land which is specifically described — the two lots.

We must look to and consider the contemporaneous construction which the parties themselves place upon the instrument. In cases of ambiguity, this contemporaneous interpretation becomes of great value, and frequently is decisive. We find from the evidence that all of the section houses were wholly on the east lot, while the depot and station platforms were partly on the west lot and partly on the right of way. It can therefore be concluded that the location was satisfactory to both parties, and complied, at least to their satisfaction, with the covenant. We therefore say that the depot and section houses must be maintained upon the two lots described in the conveyance. Has there been a breach of the condition by the railroad? In Elliott on Eailroads, vol. 2, section 943, we find the following’: “But little assistance can be had from examining other cases, except to ascertain rules of interpretation. Each case differs so. widely from all the others that even rules of construction cannot be wholly depended upon. The application of good sense and sound equity are as much to be relied upon as subtle and artificial rules of construction. The point, of course, to be arrived at in every case, is to ascertain the intention of the parties.”

It would be profitless to analyze the cases cited in the brief of counsel, or to undertake to harmonize those cases, as little assistance can be obtained thereby. Each case must stand on its own facts, and after all the question is: What was the intention of the parties? We have found that the parties intended that the buildings should be wholly or partly upon the two lots. The railroad company removed from its original location all and every portion of the depot (the pumping station and water-closet, or privy, were not mentioned in the contract, and, while appellant contends that this privy was a part of the depot, yet Montana never contracted for the privy, but for a depot, and we can omit these from any consideration at all), and rebuilt it, not on that side of the track where it was first erected, but on the opposite side. There is nothing in the record to show what lands or interest Montana had on either side of the track; but we do know that he was satisfied with the original location, as he acquiesced in it. Although the depot was •not wholly oh the lot, if in its removal the depot had been placed upon any other portion of the lot, no objection could have been made. It is a matter of common knowledge, and recognized by all business men, that the location of a depot for either passengers or freight, or both, sometimes — indeed, generally — enhances the value of adjacent property. In large cities and towns, such locations always and necessarily affect the value of adjoining property; and in country towns the same results follow.

The maintenance of a depot on the west side of- a railroad track is'more valuable and convenient to those having connection with the railroad and who live on the west side of the railroad. Their ingress and egress to and from is attended with less risk than when they are required to cross the railroad tracks. They can deliver and receive their freight without having to cross the track, and, as long as the depot remained as originally located, patrons of the railroad, either while receiving or discharging their freight, could drive their wagons to the western side of the depot or platforms, and be safe and secure from the movement of trains. The arrival and departure of trains would and could not either injure them or their teams or interrupt their business. But this is not true as to the present depot. The map introduced in evidence by both of the litigants shows that the depot was located between two main lines of track, one on the west, the other on the east side, and a person'going to the depot from either direction was compelled to traverse one of these tracks, and if he goes with a conveyance driven by live stock he takes the chances of having his stock frightened while waiting at the side of the depot for the reception or discharge of his freight. A railroad track, where the trains are wont to move, is a place of danger. Every one knows that in a small country town the location for a store or any other place of business is much- more desirable on that side of the railroad track where the depot is located. Illustration after illustration can be given in demonstration of the soundness and practicability of these statements. The question is not how many feet, yards, or rods the present site is from the old site. In some instances a removal of twenty-five or fifty feet would be a more open and flagrant violation of the contract than if the distance were a quarter of a mile. After a careful consideration of the facts shown in the evidence, our conclusion is that there was a breach of the condition, and that the plaintiff is entitled to recovery.

The greatest difficulty we have had. is in determining whether the forfeiture applies to both lots, or to the west lot alone. The language is, “should at any time in the future remove said depot or section houses, or both, off of the land described.” We must give force and effect to every word used in the instrument, if by so doing harmony can be preserved. In other words, we cannot strike out of the contract any word which by so doing will alter the meaning. If the language had been “remove said depot or section houses,” the meaning would have been manifest that the removal of either would have worked a forfeiture of both lots. But the words are “depot or section houses, or both.” The word “both,” when taken in connection with the context, must mean that, when both the depot and section houses are removed, a breach of the condition subsequent happens as to both lots.

We do not deem it necessary to enter into a discussion of the question as to whether the Lakeview Traction Company acquired the rights of Montana. That he did so cannot be doubted, under the several conveyances and under our statute.

As to the exception contained in the deed from Ben Boone to the Lakeview Traction Company, it is manifest that this was inserted to protect the grantor on his covenants of warranty. If, however, it was not so intended, it would be void, because repugnant to the granting clause.

It is a correct principle of law, as announced by counsel for appellant, that upon a breach and nonperformance of a condition annexed to the grant of a freehold estate the title conveyed is not void, but is only voidable by the acts of the grantor or bis heirs, wbo must take advantage of tbe condition, and repossess himself of the estate by actual re-entry, or by some act equivalent thereto, and manifesting an intent to terminate the estate. This rule applies, even though the land is expressly conditioned to revert upon breach or nonperformance of the condition; but we dissent from the statement copied from the opinion in Railroad Company v. Neighbors, 51 Miss. 412, that “the election to insist upon a forfeiture or a waiver of it must be made promptly after the breach or knowledge thereof.” The court in the Neighbors case was discussing the rights of a plaintiff to have the contract annulled or set aside by a court of equity, and the facts in that case show that the grantor in his lifetime made no complaint, nor did his heirs after his death, covering a period of twenty years, of any misuse or misappropriation of the land.

But, in addition, we say that by the repeated and recent utterances of this court the doctrine of laches, pure and simple, no longer finds favor in this state. No time short of the time prescribed by the statute of limitations will bar the action. We, of course, have no reference to instances of estoppel.

The plaintiff was entitled to recover rents under the statute from the date of the institution of the suit up to the date of the trial. Dean v. Tucker, 58 Miss. 487. The bringing of the suit was equivalent to an act of re-entry.

Affirmed upon direct appeal and upon cross-appeal, as to the land recovered, but reversed upon the question of rents.

Affirmed as to the land recovered. Reversed' upon the question of rents.  