
    *Bolling v. Mayor &c. of Petersburg.
    April. 1837,
    Richmond.
    Municipal Corporation — Grant of Land to — Construction of Condition in Deed. — An individual grant to the corporation of a town, having by charter a general power to purchase and hold lands, an acre of ground for the use of the town, for the purposes aftermentioned in the deed: the deed then states that the land is granted in consideration of the courthouse and j ail having been built thereupon, and also in consideration that the said courthouse and jail, and the judiciary proceedings of the town, shall be continued to be kept and held upon the premises; with a covenant by the grantor that the corporation shall peaceably enjoy the property so long as the judicial proceedings of the town shall continue to be held thereupon; and with a proviso that in case the juridical proceedings shall ever be discontinued to be held on the land thereby conveyed for that purpose, and shall be removed and permanently held elsewhere, the property shall be revested in the grantor. The courthouse and jail, and the juridical proceedings of the town, continue tobe maintained and held on the land so granted; bnt the corporation erects other buildings thereon, and leases them to individuals. Held, such use of the land is competent to the corporation, under the terms of the grant, and the grantor has no right to interfere.
    Appeal from a decree of the superiour court of chancery for the Richmond district.
    By deed made the 7th of October 1794, between Robert Bolling of the one part, and the mayor, aldermen and commonalty of the town of Petersburg of the other part, Bolling, in consideration of five shillings expressed to be paid him by the said mayor, aldermen and commonalty, and also for the other considerations, covenants and agreements aftermentioned, — -granted, bargained and sold to the said mayor, aldermen and commonalty,! “for the use of the said town, a piece, parcel *or plat of land, situate and being within the said town, for the purposes herein after mentioned, being the piece of land containing one acre” (particularly described by metes and bounds) “whereon now stand the courthouse and jail belonging to the said town, and which said piece of land is hereby given, granted and conveyed in consideration of the said courthouse and jail having been built thereupon, and in consideration *also that the said courthouse and jail, and the judiciary proceedings of the said town, shall be continued to be kept and held upon the said premises; to have and to hold the said lot, and the appurtenances, to the said mayor, aldermen and commonalty, and their successors forever, for the uses, intents and purposes aforesaid, to the only proper use and behoof (for the use of the said town) of the said mayor, aldermen and commonalty, and their successors forever.” And the mayor, aldermen and commonalty, in consideration of five shillings expressed to be paid to them by Bolling, “and also in consideration of these presents,” grant, bargain and sell to Bolling a certain other piece of land, which he had Gonveyed to them in 1787 for the purpose of erecting thereon the public judicial buildings of the town. The deed then proceeds as follows: “And the said Robert Bolling doth covenant with the said mayor, aldermen and commonalty, and their successors, by these presents, and it is the true intent and meaning of the parties hereto, that the said mayor, aldermen and commonalty and their successors, for the use of the said town, shall and may, at all times hereafter, peaceably *and quietly have, hold, possess and enjoy the said parcel of land, and the appurtenances, so long as the judicial proceedings of the said town shall continue to be held thereupon: and that he the said Robert Bolling, his heirs &c. -the parcel of land aforesaid, upon the conditions aforesaid, will forever warrant and defend to the said mayor, aldermen and commonalty. Provided nevertheless, that in pase it shall ever so happen that the juridical proceedings of the said town shall be discontinued to be held and kept upon the said piece or acre of land herein conveyed for that purpose, and shall be removed, and held and continued permanently at some other place, in such casé said piece or parcel of land to reinvest in the said Robert Bolling, as though this indenture had never been made.” The deed was signed and sealed by Robert Bolling, and by Thomas G. Peachy, the mayor of Peters-burg, on behalf of the mayor, aldermen and commonalty; and the seal of the corporation was affixed.
    In 1820, Bolling filed a bill in the supe-riour court of chancery holden at Richmond, against the mayor, aldermen and commonalty of the town of Petersburg; setting forth the deed of the 7th October 1794; and charging, that the true intent and meaning of both parties to the deed was, that the lot thereby conveyed should be used for no-other purpose whatever than the erection of judiciary buildings for the town, including the jail, and for purposes connected with the use of said buildings, and the convenience of the citizens of Petersburg who might have business in the court of the town; but that the mayor, aldermen and commonalty had lately undertaken to apply the lot to objects of profit to themselves, entirely inconsistent with those for which the deed was made; in pursuance of which intention, they had removed the jail, from the street, to a part of the lot more contiguous to the plaintiff’s dwelling, and had laid off the ground on the street into building lots, and disposed *of the same on long leases to various individuals, who had erected houses thereon, whereby a considerable portion of the acre had been occupied, so as to leave only a narrow alley into the interiour. That the corporation bad thus applied the property to objects inconsistent with the grant of it, and incompatible with the full enjoyment of it by the citizens in the manner contemplated by the parties to the deed. That the plaintiff had uniformly protested against these proceedings as illegal and unjust. That he had applied to the mayor, aldermen and commonalty for redress in the premises, but they had refused to comply with his requests. Wherefore the bill prayed, that the mayor, aldermen and commonalt3r, and all others acting under colour of authority from them, might be injoined from using the property in the manner before described; or, in case the court should not think it right to prohibit the enjoyment of said property by the holders, that a receiver of the rents might be appointed, and the same be applied to the benefit of the plaintiff; that the said mayor, aldermen and commonalty might be injoined from putting up any further buildings on said lot; and general relief.
    The mayor, aldermen and commonalty answered, admitting, in substance, the allegations of the bill respecting the uses to which they had applied the lot in controversy; but denying that the plaintiff’s construction of the deed, and the intention of the parties thereto, was the true and proper construction; insisting, on the contrary, that the manner in which they had used and applied the property was entirely compatible with the purposes of its original acquisition, and with the full enjoyment thereof by the citizens of Petersburg for those purposes; of whom not one, except the plaintiff himself, had ever made any complaint on account of the use of the lot.
    The cause came on to be heard in 1830; whereupon the chancellor dismissed the bill, with costs. From which decree Bolling appealed to this court.
    
      Nicholas, Johnson and Leigh, for appellant.
    J. Robertson, for appellees.
    
      
      nunicipai Corporations. — On all matters pertaining to municipal corporations, see monographic note on “Municipal Corporations” appended to Danville v. Pace, 25 Gratt. 1.
      County Court — Acquisition of Land for Special Purpose — Restriction of Use. — The county court, having a special power to acquire land for special, purposes only, and having acquired it for a special purpose, must of necessity he confined in its use of the land to the purposes for which authority to acquire was given and subject to the restrictions imposed. County of Alleghany v. Parrish, 93 Va. 618, 25 S. E. Rep. 882, citing 2 Dill. Mun. Corp. (4th Ed.) § 563: Bolling v. Mayor, 8 Leigh 233.
      The principal case was also cited in Alex. & Wash. R. R. Co. v. Chew, 27 Gratt. 558; City of Richmond v. Supervisors, 83 Va. 207, 2 S. E. Rep. 26.
    
    
      
       Deeds — Conditions—Construction of. — See generally, monographic note on “Deeds” appended to Fiott v. Com., 12 Gratt. 564.
      ‡By the 1st section of the act for incorporating the town of Petersburg (Acts ot May 1784, ch. 19, 11 Hen. Stat. at large p. 382), it is enacted, that on the 1st Wednesday in September of every year, the freeholders, housekeepers and inhabitants of the town shall elect by ballot twelve fit and able men, being freeholders and- inhabitants, who shall elect by ballot, from among themselves, one person to act as mayor, another as recorder, and four others as aldermen of the said town, and the other six oi whom shall be common council.”
      § 2 enacts, “that the said freeholders, housekeepers and inhabitants, and those persons who shall hereafter become freeholders, housekeepers or inhabitants, shall be a body politic and corporate, by the name of the mayor, aldermen and commonalty of the town of Petersburg, and by that name have perpetual succession and common seal. That they and their successors, by the name aforesaid, shall be-able and. capable in law to have, purchase, receive, enjoy, possess and retain, to them and their successors forever, any lands, rents, tenements, hereditaments, of what kind, nature or quality soever; and also to sell„grant, demise, alien or dispose of the same:” to sue and be sued, and to make by-laws, rules and ordinances. “That they and their successors, hy the name aforesaid, shall especially have power to rent, erect or repair workhouses, houses of correction, a courthouse, prison, markethouse, and hospitals for the reception of persons infected with contagious disorders, and other public buildings for the benefit of the said town;” to erect wharves; to regulate the internal police; and to impose and collect taxes for the execution of all or any of the powers given them. “That all acts herein directed to be done by the mayor, recorder, aldermen and common council, shall be done by them when assembled in common hall, when seven members shall be present, of which the mayor, recorder or eldest alderman shall be always one.”
      § 3 enacts “that the mayor, recorder and aider-men, or any four or more of them, shall have power to hold a court of hustings on the first Wednesday in every month;” and particularly defines the jurisdiction of the court.
      By the 2d section of an act passed December 13, 1787 (12 Hen. Stat. at large, p, 622), it is enacted, that “whenever the common hall of the said town shall judge it necessary to purchase any lot or parcel of land for the use of the said town; to erect or repair any public buildings;” or to exercise certain other corporate powers; they shall appoint a day for the meeting of the electors qualified to vote for members of the common hall, and give notice of the time and place of meeting; and (by § 3). if two-thirds of the electors attend, and a majority of them agree to adopt the measure proposed, it shall be lawful for the common hall to raise a sum of money sufficient for that purpose.
      § 6. "Two additional aldermen, as well as common councilmen, shall hereafter be chosen at each annual election.”
      By the 1st section of an act passed December 10, 1791 (13 Hen. Stat. at large p. 295), it is enacted that the common hall may levy money for any of the same purposes as are mentioned in the 2d section of the act of 1787, in case the freeholders or housekeepers who attend the call meeting shall amount to the number of thirty, and they, or a majority of them, agree to adopt the measure proposed. — Note in Original Edition.
    
    
      
       1 Rev. Code of 1810, ch. 71, § 1(5, p. 250. ‘’From time lo time forever hereafter, the court of every county and corporation within this commonwealth shall cause to be erected and Kept in repair (or, where the same shall be already built, shall maintain and keep in rood repair) within each respective county and corporation, and at the charge of such county or corporation, one good and convenient courthouse of stone, brick or timber, and one common jail and county prison, well secured with iron bars, bolts and locks, and also one pillory, a whipping post, and stocks: and where land shall not already be provided and appropriated tor that purpose, such court may purchase two acres whereon to erect the said public buildings, for the use of their county or corporation, and for no other use -whatsoever. And to every courthouse already built and established, two acres of the land built upon and adjacent thereto, not having any house, orchard or other immediate convenience thereon,, shall be and remain appropriated to such courthouse; and the fee simple thereof is hereby declared to be in the court of the same county, and their successors, to the use of such county as aforesaid; but where a courthouse is already built in any city or town, the land now laid off tor the same and other public buildings shall be judged and held to be sufficient.” — Note in Original Edition.
    
   BROCKRNBROUGH, J.

The deed in this case was not executed under the authority of the statute which empowers the courts of counties and corporations to purchase two acres of land whereon to erect courthouses, jails, pillories &c. and which is to be found in the revised code of 1794, ch. 67, 4 13.* The conveyance.is not made to the court of hustings of Petersburg, but to the mayor, aldermen and commonalty of Petersburg, a different body altogether. The act incorporating the town of Peters-burg, passed in May 1784 (11 Hen. Stat. at large, p. 382), authorizes the voters of the town to elect a mayor, recorder, fourf aldermen and six common councilmen : it erects the freeholders, housekeepers and inhabitants (who are the voters) into a body politic *and corporate, by the name of “the mayor, aldermen and commonalty of the town of Petersburg,” who are to have perpetual succession and a common seal. All acts done by the mayor, recorder, aldermen and common council are to be done in common hall, when seven members shall be present, of whom the mayor, recorder or eldest alderman shall be always one. This common hall is a different body from the court of hustings, although some of those who compose the latter may sit in the former. The court consists of the mayor, recorder and aldermen : the common councilmen form no part of it.

The common hall is obviously the legislative body of the town, as the court of hustings is the judiciary. The powers conferred on the common hall are very extensive; and the jurisdiction of the court well marked out and defined. By the second section it is enacted that the body politic and corporate, and their successors, by the name aforesaid, shall be able and capable in law “to have, purchase, receive, enjoy, possess and retain, to them and their successors forever, any lands, rents, tenements, hereditaments, of what kind, nature or quality soever; and also to sell, grant, demise, alien or dispose of the same.” It also enacts “that they and their successors, by the name aforesaid, shall especially have power to rent, erect or repair workhouses, houses of correction, a courthouse, prison, markethouse and hospitals, and other public buildings for the benefit of the said town.”

Here is a general and unqualified grant of power conferred on this corporation, to purchase and hold lands, and to sell and convey them; in other words, to have complete dominion over them. This general grant is by no means limited or restricted by the clause giving them power to rent, erect and repair public buildings. That is neither expressed nor intended to be a limitation on the general grant of power. On the contrary, *it is an additional grant of power; nor can the especial power to erect public buildings restrain them from erecting buildings of any kind on land of their own, and over which they have complete dominion, whenever they may deem it necessary to erect them for the benefit of the town.

That the legislature itself construed the charter as granting to the corporate body a general power to purchase land for the use of the town, is also apparent from the subsequent acts of 1787, ch. 81, 4 2 (12 Hen. Stat. at large, p. 622), and 1791, ch. 53, 4 1 (13 Id. 295).

In the view which I have taken of this subject, I do not deem it necessary to en-quire whether the court of a county or corporation is inhibited by the act of 1792 before mentioned, or the act of 1819 (1 Rev. Code of 1819, ch. 71, 4 16, p. 250), from erecting on the public square of two acres, any building, public or private, other than the courthouse, jail, pillory, whipping post and stocks therein specified.

Let us now turn to the deed from the appellant to the appellees, and enquire what is the proper construction to be given to it, bearing in mind the chartered privilege of the corporation to purchase and hold in fee simple any land whatsoever. The grantor, for valuable consideration, bargains and sells to the corporate body in fee simple, “for the use of the said town,” an acre of land by metes and bounds, “for the purposes hereinafter mentioned.” After describing the piece of land conveyed as that whereon now stand the courthouse and jail, the use and purposes are afterwards mentioned in the following language: “Which said piece of land is hereby given, granted and conveyed, in consideration of the said courthouse and jail having been built thereupon, and in consideration also that the said courthouse and jail, and the judiciary proceedings of the said town, shall continue to be kept and held upon the said premises.” The grantor also covenants with the *said mayor, aldermen and commonalty and their successors, and it is expressed to be the true intent and meaning of the parties, that the said corporate body, “for the use of said town,” shall quietly and peaceably hold and enjoy the said piece of land, “so long as the judicial proceedings of the said town shall continue to be held thereupon.” Then follows finally a proviso, that “in case it shall ever so happen that the juridical proceedings of the said town shall be discontinued to be held and kept upon the said piece or acre of land, and shall be removed, and held and continued permanently at some other place, in such case such piece of land to reinvest in the said Robert Bolling, his heirs and assigns, as though this indenture had never been made.”

Here then is a conveyance in fee for the use of the town, for the purpose of having the courthouse and jail on the lot conveyed, and that the judicial proceedings may be permanently held there; with a covenant for quiet enjoyment so long as the judicial proceedings are held there, and with one only condition annexed, which is, that whenever the judicial proceedings cease to be held there, and are permanently held at some other place, then the lot shall reinvest in the grantor or his heirs.

The terms of the conveyance have been complied with; the courthouse and the jail are on the lot, and the judicial proceedings are still held there; the condition is not broken, and the reinvesture cannot take place.

But the complaint is that the appellees have applied a portion of the ground to objects inconsistent with the grant: that they have laid it olí into building lots, which they have let out to individuals on long leases, and have thereby acquired considerable profit to the corporation, not intended bj' the grant. This complaint is, I think, entirely without foundation. There appears to be abundance of room, on the acre of land, both for *the new tenements and for the courthouse and jail. The judicial proceedings are carried on there with perfect convenience, and the buildings erected do not interfere with the full enjoyment of the rights vested in the people of the town by the grant. They do not complain that they are restricted in the full exercise of their rights. Whilst the condition on which the corporation hold the lot is not broken, they hold complete dominion over it, and may use it in any way that they think best for the use of the town. I am of opinion that the decree be affirmed.

CABEBE, J.

If the purchase in this case had been made by the corporation court of the town of Petersburg, under the act of assembly empowering the county and corporation courts to purchase lands whereon to erect courthouses and other buildings connected with the administration of jus-, tice, I should have been clearly of opinion that the land could not be applied to purposes other than those indicated by the act of assembly. For, as the courts have not a general power to purchase lands, but a special power for particular purposes only, they must of necessity be confined, in their use of the lands, to the purposes for which the authority to purchase was given.

But this purchase was made not by the court, but the corporation of the town of Petersburg, which has a general power to purchase lands, without limitation as to their use, or as to the purposes to which they may be applied. In such a purchase, the expression of one purpose to which the land is to be applied cannot justly be regarded as excluding other purposes, not essentially inconsistent with that which is expressed. If it be the object of the grantor to restrict the use to the purposes declared, he should introduce covenants or stipulations excluding, by express declaration or by necessary legal inference, all other appropriation. This has not been *done in this case; and therefore I am of opinion to affirm the de-

cree.

BROOKS, J.

I concur in affirming the decree.

TUCKER, P.

The appellant, by his deed in 1794, conveyed to the appellees an acre of land in the town of Petersburg, whereon the public buildings are recited to have been at that time already erected. The consideration of that deed appears to have been valuable. It consisted not only of the sum of five shillings (the usual nominal consideration) but also of part of a lot upon which the public buildings had formerly been erected, and which by this deed is re-conveyed to Robert Bolling, from whom it had been originally acquired; the consideration for such reconveyance, as I understand the words “in consideration of these presents,” being the conveyance made by this deed by Bolling to the corporation. It is also abundantly clear that one consideration of Bolling’s conveyance in 1794 was the erection of the public buildings upon the property, and their continuance permanently upon it: and whether we consider the estate granted to the corporation as a base fee, or as a ■ fee simple determinable upon a breach of an express condition annexed to it, there can be no question that it was designed that the removal of the seat of justice permanently to any other place should terminate the estate of the corporation, and should reinvest Bolling with the title.

But it is contended that a further restriction upon the powers of the corporation over the property was designed; and that according to the true construction of the deed, the property was conveyed not only for the purpose of having the public buildings erected on it, but for that purpose alon'e; and it is zealously urged that the affirmative words, “for that purpose,” imply the negative, “for no other purpose.” I cannot think *so. Considering the deed independent of the influence of the act of assembly which has been called to its aid, it would grossly violate every rule of interpretation, to give to these words such an implication. Hooking to the deed, which alone must guide us, *ve see the owner of the estate conveying it with the most careful and anxious stipulation for the erection and continuance of the public buildings upon it, and expressly providing for the reinvestment of the qstate in himself if that stipulation was not performed.' But with all his caution, he provides for nothing more. Had it been his design to exclude any other use, a single phrase would have effected his purpose. He had but to add “and for no other use whatsoever.” But he has not done so. For aught that we can see, the advantage he looked to was the continuance of the public buildings in that spot, which would enhance the value of his property in the vicinity. There is nothing to shew that either party, at that time, thought of the possible future erection of other buildings, and if they did not, the further restriction could not have been intended. To consider it as part of the bargain now, would be to make a contract for the parties, instead of construing one. To give to the affirmative stipulation that the mayor &c. should continue the courthouse on the lot, the effect of a stipulation that they would erect no other buildings, would be to bind them to what they did not dream of. With what propriety or justice can we say that the mayor &c. did understand, or ought to have understood, a covenant to erect and continue the courthouse there, as a covenant that they would erect no other building there? Various other buildings might he and are usually found necessary on the public square of a corporation. A clerk’s office is neither mentioned in the law nor in this deed. Is it then inhibited to erect one? An engine house for the use of fire companies is named in neither one nor the other; yet such a building is to be found on *most public squares, in towns where fire companies are formed. And so of a guard house and market house; for these are also commonly erected on the public property, and not unfrequently on that which is connected with the juridical buildings. I am therefore of opinion that this affirmative provision is not to be construed negatively, even if the language was what it has been supposed.

But that is not so. The deed does not say that the property is conveyed “for the use of a courthouse and jail. ” It is granted to the majror &c. “for the use of the town.” It is recited indeed that it is granted “in consideration that the jail and courthouse had been erected upon it, and that they should be continued there;” but when the use is declared, it is set forth to be to the only proper use of the mayor &c. “for the use of the said town.” It is true, it has also in one clause the words, “for the uses and purposes aforesaid but this is nothing more than the tautology of a party sedulous to be explicit, and therefore the less to be suspected of omitting any essential stipulation.

But the act of assembly has been referred to, as expounding the stipulations of this contract. Without enquiring into the true construction of that act, it is sufficient to avail myself of the observation of my brother Brockenbrough, that this contract was not made under or with reference to the statute relied upon. It is a sale of land not to the court, but to the corporation, consisting of the mayor, aider-men and commonalty, for the use of the town. As a corporate body, the corporation had a right to purchase; for that is one of the common incidents to corporations. 1 Black. Com. 475. And by its charter (11 Hen. Stat. at large, p. 382), the power is given expressly and without limitation. If therefore the contract was made with reference to either statute, and is to be interpreted accordingly, we must take it that the parties referred to an act which authorized the 'x'transfer of the estate to the corporation, rather than to one which did not. Now the general act (Rev. Code of 1794, ch. 67, l 13,) does not authorize a purchase of land by the corporation consisting of the mayor, aldermen and commonalty, but by the court only; and we cannot, therefore, fairly infer that the parties contracted in reference thereto. I am therefore of opinion that the appellant is in no manner sustained in his pretensions. It is his own fault that the deed contains no provision against building leases, if it was his purpose to prevent them. So important a restriction ought not to have been left by him to vague inference from the present stipulations of the deed. He has no right therefore to arrest the appellees in their use of the property for the benefit of the-town ; although, as a citizen, it is always, competent to him, if they impede by these acts the convenience or utility of the public buildings, to prosecute them for the nuisance.

I have said nothing as to the jurisdiction, though the case is clearly against the appellant on that point. If the deed does provide against the uses made of the property, the remedy of the appellant was at law ; and’ if it does not, there is no ground laid upon which the court can add to its provisions, and not only enforce a forfeiture, contrary to the spirit of a court of equity, but even create a new forfeiture, by the interpolation of a new and substantive clause into the contract between the parties. I am, therefore, upon every ground, for affirming the: decree.

Decree affirmed. 
      
       Kote by the judge. The act of October 1787 adds two more aldermen and two more common councilmen.
     