Opinion
No. 37434.
March 27, 1950.
1. Abandonment — deeds — reconveyance on abandonment.
Under a deed to a parcel of land purchased for a sawmill site, which contained a stipulation for the reconveyance of the property to the grantors when the grantees have abandoned the plant, abandonment took place when all the timber had been sawn, the operations had ceased and all the usable machinery had been removed, although grantees remained in possession, paying taxes, and exercising such acts of ownership as the land was susceptible of.
2. Limitation of actions — stipulation in deed for reconveyance.
In a situation stated as above, the grantors were bound to bring their suit to compel the reconveyance to them within ten years from the date of the abandonment, it being known to them throughout the entire time that the grantees had disputed their right to a reconveyance except upon a new consideration therefor, which the grantors had never agreed or offered to pay.
Headnotes as approved by Lee, J.
APPEAL from the chancery court of Harrison County; D.M. RUSSELL, Chancellor.
Jo Drake Arrington, for appellants.
I. The deed conveying and the agreement to reconvey the land must be construed together as one instrument. Caillavet v. Bernard, 7 S. M. (15 Miss.) 319; Barkwell v. Swan, 69 Miss. 907; 26 C.J.S., pp. 338-9, Deeds, Sec. 91; 16 Am. Jur., p. 537, Deeds, Sec. 175; Thompson's Real Prop. (Perm. Ed.) Vol. 4, Sec. 2039, 2040, Vol. 7, Sec. 3529, p. 19.
II. The appellee is trustee of the title for appellants, the equitable owners of the land. Carpenter v. Douglas, 104 Miss. 74, 61 So. 161; White v. Tucker, 52 Miss. 145; Taylor v. Lowenstein, 50 Miss. 278; Thompson v. Wheatley, 5 S. M. (13 Miss.) 499; Pomeroy's Equity Juris., (4th Ed.) Vol. 3, Sec. 1046; 58 C.J., p. 1072, Sec. 324, Specific Performance; Walton v. Wilson, 31 Miss. 576; Croker v. Palmer Beach Estates, et al., 114 So. (Fla.) 225; Caillavet v. Bernard, 7 S. M. (15 Miss.) 319; Barkwell v. Swan, 69 Miss. 907; Anding v. Davis, 38 Miss. 574; Blacketor v. Cartee, 172 Miss. 889, 161 So. 696; Dixon v. Wright, 175 Miss. 191, 166 So. 374.
III. The appellants are not barred by the ten year Statute of Limitations: And appellee is estopped to invoke such bar. Cooper v. Cooper, 61 Miss. 676; Westbrook v. Munger, 61 Miss. 335, 336; Higgins v. Haberstraw, 76 Miss. 627, 25 So. 168; White v. Tucker, 52 Miss. 145; Klein v. McNamara, 54 Miss. 90; Thomasson v. Kinard, 153 Miss. 398, 121 So. 109; Day v. Cochran, 24 Miss. 261; New Orleans N.E. RR. v. Morrison, 203 Miss. 791, 35 So.2d 68; Williams v. Patterson, 198 Miss. 120, 21 So.2d 477; Thompson v. Reed, 199 Miss. 129, 23 So.2d 888; Leavenworth v. Claughton, 197 Miss. 618, 20 So.2d 821; Barron v. Federal Land Bank of New Orleans, 182 Miss. 50, 180 So. 74; and citations.
IV. The deed together with the agreement to reconvey was a determinable fee simple estate: upon its determination title vested in the appellants. Thompson's Real Property (Perm. Ed.), Sec. 2171, Vol. 4; Restatement of Law, "Property", Sec. 44, p. 129; Kelly, et al. v. Wilson, 204 Miss. 56, 36 So.2d 817.
Conclusion. Appellants filed suit on December 22, 1945; or about three weeks after the appellee flatly and finally refused to reconvey the lands. Whether the appellee became the trustee of an express trust burdened with the duty to reconvey the land, as part of the consideration for the deed executed to it on April 1, 1919, or whether it acquired a mere easement for the use of the land as a sawmill site, or whether disregarding the form and looking only to the substances, the instruments in equity constituted only a lease, or whether the appellee received a fee simple estate determinable which determined and revested in appellants, or L. Henry Krohn himself, in his lifetime — there are certain undeniable facts which defeat the defenses urged by the appellee. The appellee did not prove definitely when it abandoned its plant and completed the removal of "its improvements and machinery", although appellee, and it alone, knew exactly when such occurred. Although it knew when its estate or interest in the land terminated, it never tendered to L. Henry Krohn or to the appellants, a deed of reconveyance; and in the face of its solemn contractual agreement reciting that "in part consideration for the deed" to Cedar Lake Island it would reconvey the said Island back to L. Henry Krohn and Margaret H. Krohn, it in cold blood welched on its agreement to reconvey, contending it was only an agreement to "sell".
J.I. Ford, for appellee.
I. The memoranda sued on is insufficient under the Statutes of Fraud on which to base an action for specific performance. Sec. 264, Code 1942; Carter v. Dabbs, 196 Miss. 692, 18 So.2d 747; Lewis v. Williams, 186 Miss. 701, 191 So. 479; Palmer v. Spencer, 161 Miss. 561, 137 So. 491; Sturm v. Dent, 141 Miss. 648, 107 So. 277; Nickerson v. Fithian Land Co., 118 Miss. 722, 80 So. 1.
II. This action is barred by the Statute of Limitations. Secs. 709, 710, Code 1942; McCoy v. Nichols, 5 Miss. 31; Tippen v. Coleman, 61 Miss. 516; 37 C.J., p. 1026.
III. Laches: Vanlandingham v. Drainage Dist., 191 Miss. 346, 2 So.2d 591; Marks v. Toney, 196 Miss. 572, 18 So.2d 452; State v. Woodruff, 170 Miss. 744, 150 So. 760; Comans v. Tapley, 101 Miss. 203, 57 So. 567.
IV. The appellants have not offered to do equity.
Reply to brief of appellants. Thornton v. City of Natchez, 88 Miss. 1, 41 So. 498; Sec. 746, Code 1942; Rimmer v. Austin, 191 Miss. 664; Leavenworth v. Reeves, 106 Miss. 722, 64 So. 660; Martin v. Hartley, 43 So.2d 785; Everett v. Hubbard, 199 Miss. 857, 25 So.2d 768.
This suit was filed on December 22, 1945, by the heirs-at-law of L. Henry Krohn and wife, Margaret H. Krohn, against L.N. Dantzler Lumber Company, to recover the title to 30 acres of land, known as Cedar Lake Island, described in the bill of complaint. The prayer was for specific performance with equity; that the exhibit relied on constituted in fact a leasehold; that the court should declare an express trust existing; and cancel the company's title. The answer put these questions at issue. After hearing the evidence, the Chancellor dismissed the bill. From the decree entered, the heirs appeal.
Prior to March 29, 1919, L. Henry Krohn and wife, Margaret H. Krohn, owned this land. L.N. Dantzler Lumber Company desired to lease some of this acreage for a mill site. However, the land was under a deed of trust for $300.00, and the Krohns preferred to sell. After negotiations, on March 29th, they signed a deed in the company's offices for a consideration of $300.00, but, at the instance of the Company, carried it home with them to await the clearing of the title. The Company also paid off the deed of trust. On April 1st, an agent of the company went by to pick up the deed and make payment. Mr. Krohn, at that time, informed the agent that his wife wanted to back out, unless the company would agree to sell the land back to them, after the company was through with it. After some quibbling, the agent wrote out and delivered to Krohn the following instrument:
"Mr. L. Henry Krohn RFD #2 Biloxi, Miss.
"Dear Sir:
"This is to certify and to confirm the agreement that in part consideration of your and your wife's execution and delivery unto the L.N. Dantzler Lbr Co of a certain deed dated 29th day of March 1919 conveying to them the land known as `Cedar Lake Island' located in parts of SW 1/4 of NE 1/4, E 1/2 of SW 1/4 and NW 1/4 of SE 1/4 of Sec. 1, 7-10, it is agreed and understood that said L.N. Dantzler Lbr. Co. will reconvey the said Island unto you when they have abandoned the plant which they expect to erect thereon; reserving the right to remove any improvements and machinery.
"Yours very truly, /s/ P.N. Howell, Agt. L.N.D. — Lbr. Co.
"Dated April 1st 1919." (Hn 1) The Company erected its mill and carried on its operations until 1927, when it cut the last log. Immediately, it took up the rails on the 20 miles of track. It began tearing down and selling the tenant, and other, houses. The machinery was sold off as junk. The boilers alone remained, and the mill site grew up in briars.
The home of the Krohns was only one-fourth of a mile from the mill — they could see what was going on. During that year, Krohn said something to the company's agent about buying the property back. This agent had no recollection of the transaction, but assured Krohn that, if the company had agreed to do so, it would carry out its agreement. He further told Krohn, if he would submit an offer, the same would be promptly put up to the company. No offer was made. At no time did the Krohns seek to purchase, or take steps to enforce any claim which they had under the instrument above set out.
In 1938, Mrs. Krohn died. In 1940, two sons of the Krohns made claims to representatives of the company, but that was all. In 1942, Mr. Krohn died.
In the meantime, the company had executed several oil leases on this property, and permitted certain users to pipe water from the artesian well. Although the plant had been abandoned, the company, through all the years, remained in possession of the land, paying the taxes, and exercising all acts of ownership of which the lands were susceptible. In August 1945, the Navy opened negotiations for the lease of this property, but, it became noised about, the Krohns protested and the record does not reveal what happened.
Several errors are assigned, but, in view of our conclusion that the decree of the lower court should be upheld, we notice only one question.
The contract provided for a reconveyance "when they have abandoned the plant which they expect to erect thereon". The statement of the facts has shown the abandonment to be in 1927. Generally, the question of abandonment depends on the particular circumstances of the case. Columbus G.R. Co. v. Dunn, 184 Miss. 706, 185 So. 583. (Hn 2) The Krohns at that time, knew that, if they got the land back, they would have to pay, and the company would not reconvey it. This court has held that the statute of limitations begins to run against the vendee's action to recover the purchase money paid under an insufficient oral contract for the sale of land from the date the vendor declines to execute the agreement, or takes affirmative action equivalent to repudiation of the parol contract. Milam v. Paxton, 160 Miss. 562, 134 So. 171.
If they claimed the right of reconveyance, they were bound to bring their suit therefor within ten years from the date of the abandonment. Section 709, 710, Code of 1942; Tippin v. Coleman, 61 Miss. 516. An examination of Kennedy v. Sanders, 90 Miss. 524, 43 So. 913; White et al. v. Turner et al., 197 Miss. 265, 19 So.2d 825; Taylor v. Twiner et al., 193 Miss. 410, 9 So.2d 644, shows these cases are not in point against the question here.
They did not bring suit in their lifetime, nor was one filed until 17 or 18 years after the accrual of the right. The statutes of limitation were pleaded in bar of the action, and are effectual to bar all rights which the Krohns, their heirs or assigns had to a recovery.
Affirmed.