Cannon v. Barry

Chalmers, C. J., delivered the opinion of the court. The complainants (appellants) are the children of R. L. Cannon, and claim, under the deed executed by their grandfather, Rusha Cannon, to be the remainder-men of the property therein conveyed for life to their said father. They bring this bill against the defendant Barry, Avho has become the purchaser at bankrupt sale of the life-estate of the father, alleging that he has committed, and is committing, waste upon the — 299 — inheritance, for which they seek an account for the past and an injunction for the future. It is objected by the defendant that the limitation in the deed of the grandfather, under which the complainants claim, is void under the rule in Shelley’s Case, or too remote both under the common-law rule against perpetuities, and under our statutory regulations on the same subject. The deed of the grandfather was executed on the 22d of March, 1845. By it the grantor conveyed the real estate and a large number of negro slaves to three trustees, and to the survivor of them, and to the heirs of the survivor in trust, for the use and benefit of his son, R. L. Cannon, during' his life, and at his death for the use and benefit of all the children of R. L. Cannon, who should attain the age of twenty-one years or marry ; and if R. L. Cannon should die leaving no child who should attain majority or marry, then the property to be held by the trustees for the benefit of the grantor’s son, J. N. Cannon, for life, and at his death for the use and benefit of such of his children as should attain the age of twenty-one years or marry; and if J. N. Cannon should die leaving no child or children who should attain majority or marry, then said property should be equally divided among all the grandchildren of the grantor, except the children of Mrs. Parchman. The grantor reserved a life-estate in all the property for himself and wife. After the death of the grantor and wife, R. L. Cannon, in 1850, took possession of the property, and remained in possession of it until his own bankruptcy and the purchase by the defendant at the assignee’s sale in 1870. Pie is still living, and none of his children have come of age or married. The rule in Shelley’s Case applies as well to trust estates as to conveyances of the legal title, but the conveyance in question does not fall within its scope. To set the rule in operation there must be by the same instrument a freehold conveyed to the ancestor, with remainder over of the same character of estate to his heirs, or heirs of his body generally, as a denomination or class of persons to take in succession as heirs, because of their character as such. Iii other words, the heirs must take as limitees and not as purchasers. A life-estate, which is an estate of freehold, is by the deed in this ease con — 300 — veyed to the father, and by the same instrument the remainder is limited to such of his children as shall attain majority or marry, but it is evident that the latter take not by limitation but by purchase. In determining the construction of any instrument of entailment, the word “ children” is rarely held synonymous with heirs or heirs of the body. The principal cases in which it is so held are instances illustrating the rule announced in'Wild’s Case, that is to say where there is an immediate grant or devise to a man and his children, and the grantee is without children. It being manifest in such cases that the intent was to vest an estate in prcesenti, and that being impossible by reason of the non-existence of a portion of those named, in order to effectuate the intention, the word children must be construed as a word of limitation and not of purchase, because otherwise there would be a grant or devise of a life-estate only, and the fee would remain in the heirs of the devisor, or in the person of the grantor, as the case might be. The Supreme Court of New York declared, in the ease of Chrystie v. Phyfe, 19 N. Y. 314, that in no other class of cases had the term children ever been held to be a word of limitation. This would now be perhaps too strong an expression (see cases cited in 3 Jarman on Wills, 106, note 5, Am. ed.), but certainly cases to the contrary are rare and exceptional in character. In Guthrie s Appeal, 37 Penn. St. 9, it was said that “ children, in law, is as certainly held to be a word of purchase as ‘ heirs of the body ’ are to be words of limitation.” It is manifest that the rule in Wild’s Case does not apply to the conveyance before us, though R. L. Cannon was without children at the date of its execution. So far from there being manifested any intention of a conveyance in prcesenti to the children, the contrary intention is plainly evinced by giving them a remainder only after the termination of a preceding life-estate in the father. It follows that the limitation over to the children was to them as purchasers, and that the life-estate of the father was not by the rule in Shelley’s Case converted into a fee. Neither does the limitation offend against the rule against perpetuities, nor against our statutes on that subject. The common-law rule only required that the limitation should — 301 — come to an end and the ultimate fee should vest within twenty-one years and ten months after the death of the last survivor of any number of successive donees or devisees, who were in being at the time when the conveyance took effect, and such also is the requirement of the statute in force when this deed was made. By that statute (Hutch. Code, 609, § 24), estates tail were converted into estates in fee, “provided that any person may make a conveyance or devise of lands to a succession of donees then living, and the heir or heirs of the body of the remainder-man, and in default thereof, to the right heirs of the donor in fee simple.” By our later statutes the number of donees is restricted to two, but even under these enactments the conveyance in question would not be condemned. R. L. Cannon and J. N. Cannon were both living when the deed was made. It is not possible to conceive of any state of facts under which, by the terms of the deed, the vesting of the ultimate fee can be prolonged beyond a period of twenty-one years and ten months after the death of both of them. Thus, if R. L. Cannon should die leaving a child en ventre sa mere, such child must be born within ten months after the death of its father. If such child attains majority, the fee at once vests in him and the limitation comes to an end. If, on the contrary, such child should die before majority or marriage, J. N. Cannon would take a life estate, if he were then alive; and within twenty-one years and ten months after his death the fee must vest in some of his children, who have attained majority or married, or in the grandchildren of the grantor, excluding the children of Mrs. Parchman. If J. N. Cannon should die, leaving minor children, before the death of the unmarried minor child of R. L. Cannon, then upon the death of such child the fee would remain temporarily in the trustees, without any usee whose interest could vest, but with a contingent use in J. N. Cannon’s children; and if J. N. Cannon should die without children before the death of the unmarried minor child of R. L. Cannon, then the fee would vest at once in the grandchildren of the grantor. No state of facts therefore can be imagined in which, according to the terms of the deed, the limitation can be prolonged more than twenty-one years and — 302 — ten months after the death of the last donee in being when it was executed, and wherever this is so the limitation is good, regardless of the length of time that may elapse from the date of its execution. The learned Chancellor, from whose decision the appeal is prosecuted, construed the proviso to the statute prohibiting estates tail (Hutch. Code, supra), as prescribing the only deviation permissible, and as fixing, not a limit within which such limitations might be made, but as laying down the exact formula to be observed in creating them. As the proviso declares that a conveyance may be made to a succession of donees then living, and to the heir or heirs of the body of the remainder-man, he was of opinion that the limitation in this case was void, because it was not to the heirs of the body of the remainder-man generally, but to a specified class of such heirs, to wit, those who should attain majority or marry. This is erroneous. The object of the statute is to establish a limit beyond which the grantor cannot go, but within which he may exercise unbounded discretion, so that he may limit the remainder to the first born or to the last born, or to the married or single, or to the adult or minor heirs of the life tenant, taking care always that the fee shall vest within the period prescribed by the rule against perpetuities. Our conclusion is, that the deed of the grandfather conveyed the legal title to the trustees, vesting in R. L. Cannon a life-estate in use, with a shifting use or contingent remainder in fee in his children; such use or remainder to become fixed and vested upon the happening of the contingencies specified. R. L. Cannon being still alive, the interest of the complainants remains contingent, dependent upon the double contingency of their surviving him, and of their attaining majority or marrying. Hence the bill cannot be maintained so far as it seeks an account of past waste, since their interest not being vested, and it being doubtful whether it will ever become so, they would have no right to any recovery that might be obtained. Whether they are entitled to any other relief depends upon the character of the acts done or permitted by the life tenant in possession. The locus in quo consists of twelve — 303 — hundred acres of land, of which about three hundred acres only are arable, the balance being swampy in character and heavily timbered. When the defendant took possession, the arable portion was in such condition that it was wholly unproductive for the first year thereafter. By rebuilding the fences, clearing thirty or forty acres additional, removing some of the tenants’ cabins to other locations, and building several new ones, he has brought up the rental value of the place to something less than three hundred dollars per annum, exclusive of the amounts expended each year in making these improvements. In accomplishing these results, he has freely cut and used the growing timber on the place, of which there is a superabundance for this and all other purposes. In so doing, as well as in removing the cabins, and perhaps in other respects, he has unquestionably been guilty of that which would be deemed waste under the English authorities, bub which we cannot pronounce to be such under the state of things existing with us, and under the circumstances of this case. The condition of this country and that of England are wholly dissimilar, and that which would be a safe test there is altogether inapplicable here. With us, speaking generally, it may be said that nothing will ordinarily be held to constitute waste which is dictated by good husbandry, and promotes rather than diminishes the permanent value of the property as an estate of inheritance. That such has been the nature and effect, in the main, of the acts of the defendant, is incontestably established bjr the testimony in the case. He has been guilty of permissive waste in suffering the mansion to go to decay, and also perhaps with respect to the orchard, but courts of equity take no jurisdiction of permissive waste by a life tenant. Their constant interference in such matters would render the enjoyment of the life estate impossible. But the defendant has also been guilty of three acts of unmistakable voluntary waste. He detached from the gin-house and sold the running gear or machinery thereto belonging ; nor does it change the character of the act that it was done at the instance of the father of the complainants, who received a portion of the price obtained. The father had no longer any interest in the property, and was not the legal — 304 — guardian of his children. He has suffered the gin-house to be partially dismantled, and though it was done without his knowledge he is nevertheless responsible for it. More serious than these was his act in voluntarily permitting a large body of the woodland to become forfeited to the State for unpaid taxes. That the land forfeited was unpro-' ductive, that there remained belonging to the estate sufficient wood to supply its wants indefinitely, that the land had been overvalued by the assessor, and that the defendant had tried in vain to have the valuation reduced, and that the board of supervisors in making the levy of county taxes had exceeded the limit of their authority, afford no excuse for his action. He took the estate as a whole, and was bound to so preserve it. He cannot segregate the profitable from the unprofitable, nor the sterile from the fertile, by preserving the one at the sacrifice of the other. The taxes were his individual debt, and the fact that they constituted a lien on both his own interests and that of the remainder-men made it his duty to keep them down. While a sale for taxes levied in excess of authority would by the law then in force have conveyed no title to the purchaser (see Gamble v. Witty, 55 Miss. 26), it would have cast a cloud upon the title, and by enabling the purchaser to add onerous damages to the amount paid, as a lien on the land (see Cogburn v. Hunt, 56 Miss. 718; s. C. 57 Miss. 681), it would have added to the burden cast upon the tenants in remainder. These acts of voluntary waste call for relief. The defendant should be required, within such time as the Chancellor may deem reasonable, to redeem or repurchase the forfeited lands, and upon his failure so to do a commissioner should be appointed to sequester the rents, or so much of them as may be necessary for this purpose. For the purpose of redeeming the lands and of hereafter keeping down the taxes, the defendant will be permitted to fell timber in such quantities and at such places as do not seriously impair the value of the inheritance. As tenant for life he has the right to do this, even for purposes of profit. Sargent v. Towne, 10 Mass. 303; Conner v. Shepherd, 15 Mass. 164. If it be true that the State has no title to the forfeited lands, by reason of an invalid sale or levy — 305 — of taxes, an easy remedy for the defendant is found in § 569 of the Code of 1880, which provides a method of striking from the auditor’s books lands improperly claimed by the State. Lastly, the defendant should be enjoined from any further acts of voluntary waste to the detriment of the inheritance. ■ When the case is returned to the lower court, the bill should be amended by making the trustees, or the survivor of them, parties. They are clothed with the legal title to the estate, and while the contingent remainder-men need not wait on them for an assertion of their rights, the holders of the legal title should, where it is possible, be before the court. Kerr on Injunctions, 256, 267. So, also, should J. N. Cannon and his children, if he has any, be made parties. They stand in the same attitude as the complainants, and equally with them are contingent remainder-men. It is only where the first tenant in tail in esse has a vested estate of inheritance that he is held to so far represent all subsequent tenants in tail as to dispense with the necessity of joining them. The doctrine does not apply to a contingent remainder-man with no vested interest. Story’s Eq. PI. §§ 145-147. Reversed and remanded.