Russell v. Town of Hickory

Ethridge, J., delivered the opinion of the court. The town of Hickory, through its proper officers, filed a bill, originally against Frank Russell and L. M. Russell, seeking to restrain by injunction interference by the appellants with the property located in the town of Hickory, which had been'used as a school building and grounds. The property was originally deeded by Frank Russell to the trustees of the Hickory Institute, a chartered institution of learning, and deed was made of the two acres by proper description,, containing the following clause: “It is hereby agreed and understood that the above-described two acres of land is deeded to the trustees^ of the Hickory Institute and to their successors in office, for the purpose of maintaining and operating a school for the benefit of the community and surrounding country, and when abandoned for educational purposes then the. said two acres of land reverts back to the said party of the first part. ’ ’ A similar deed to the two acres was made to the said institution by Gr. M. Raynor. On the 8th day of March, .1894, Gr. M. Raynor and Frank Russell executed the following instrument which was filed for record in the chancery clerk’s office of the county: “Know all men by these presents, that Gr. M. Russell and Frank Russell for and in consideration of the sum of ten dollars ($10) to us paid, hereby waive all reversionary interest in and to the following" described lands: Four acres situated in the southeast corner of the northwest quarter of section 36, township 6, range 12 E. lying in Newton county, Mississippi, upon which land is situated a building known as the Hickory Institute, a, conveyance of which has heretofore been executed by us. The pur [190] pose of this deed is to secure Joe Bussell in the sum of three hundred eighty-one and three one-hundredths dollars ($381.03), this day loaned the trustees of the said school. ‘‘Witness our signatures this 8th day of March, 1894.” This deed was signed and acknowledged by the said G. M. Bussell and Frank Bussell and filed for record on the 12th day of March, 1894. At the time of the original conveyance a school was conducted as a public school, the town having no separate municipal school, and thereafter a school known as the Hickory Institute was operated until about the year 1894, when the municipal authorities declared the municipality a separate school district, the legislature having authorized this kind of proceeding in the Code of 1892 (section 4011). When the municipality was declared a separate school district the trustees appointed by the municipal authorities took charge of the school and operated a municipal school in the said school building and exercised full control over it for school purposes. Most of the witnesses described the process of transfer by saying that the old trustees stepped out and the new ones stepped into their places, and that the minutes and the records of the school were turned over to the new trustees by the old trustees. One witness says that he thinks there was some kind of a writing transferring the school, or some instrument of conveyance, but the testimony is not specific and strong along this line. This case has been before this court twice before. It was first reported in 116 Miss. 46, 76 So. 825; and second, in 124 Miss. 628, 87 So. 150; the prior appeals being from orders on demurrers to the bill. After the remand of the cause on the last appeal, Frank Bussell having died, the suit was revived against his heirs, and the bill was amended by inserting after the first paragraph on the ninth page of the amended bill the following: [191] “Complainants would further represeut unto this honorable court and aver that, if it should be contended by, or is the contention of, the defendants herein that the complainants herein did not acquire the property here in question, and have not the right to hold it as their own against the original grantors for educational purposes as conditioned in the deed of the original grantors, or otherwise hold said property as their own, then the complainants herein respectfully charge as true that they have been in possession, control, and have held said property in actual, open, notorious, uninterrupted, exclusive and continuous occupancy as their own, hostile to the defendants herein, for more than ten years, in that, if the condition in the deed of the original grantors was broken, and the said property passed out of the possession of, or under the control of the trustees of the Hickory Institute, and that the complainants are not the successors in office of the said trustees of the Hickory Institute, and that when said property was delivered to and passed in the possession and under the control of the said complainants, and that said property was from that time not occupied and used under the conditions in the deed of the original grantors, complainants charge that at the time said property came into the possession, control, and occupancy of the complainants through color of title, and that the complainants have held and used said property as aforesaid mentioned, and in the manner and way aforesaid mentioned, all of which was and is well known to the defendants herein, and that the said complainants; have for more than ten years last past, used said property openly and notoriously, and have actually occupied same hostile to the fights of said defendants, and that the said defendants have not paid any taxes on said property, nor have they liad any control over said property, and that said property has been openly and notoriously lmown as ‘the property of the said town of Hickory’ and used by it for educational purposes as town property, and that said property has been given, all the exemptions that [192] property is given when held and possessed by a municipality ; all of which facts are well known, and actually known to the defendants, and have been known to the defendants for more than the last past ten years, and that the said complainants have so held, controlled, occupied, and possessed said property in the manner aforesaid as to give the complainants a full and complete title and ownership of and to said property.” The defendants answered the bill and set up a breach of the reversionary clause in the original deed and also set up that the said conveyances were void because the two acres of land attempted to be conveyed thereby constituted a part of the homestead of Frank Russell, and that his wife did not join in the conveyance, and also that the wife did not join in the second instrument herein-above quoted, and that it was void. It appears that about the year 1916 the town of Hickory erected a new school building on another and different lot, and the board of mayor and aldermen passed an order declaring their intention not to abandon the old school site for educational purposes, but that it was their pur7 pose and intention to reserve it for playgrounds and for a place of meeting for the trustees of the school, and for the teachers of the municipality, and for a meeting place for teachers of the county, beat and municipality. It appears from the evidence that the building was continuously used for school purposes from 1889 -to 1916; up until 1894 it was operated as a chartered institution of learning whose trustees were selected annually by a vote of the patrons of the school, but in 1894, or thereabouts, the municipality declared the town a separate school district and appointed trustees who took charge of the building on the said grounds and took charge of the minutes and records of the Hickory Institute, and it seemed to be regarded by all persons that the trustees of the municipality succeeded the trustees of the chartered institution. It will be noted from the original deed of Frank Russell to the trustees that the property was deeded to the trustees in [193] fee-simple, subject only to the reservation, and subject to that right only the title vested fully and completely in the said trustees. After the town constructed a new school building in 1916, Frank Russell fenced up the two acres and excluded the students and town authorities therefrom, which resulted in the procuring of the injunction above stated. It seems to us on the facts shown in the record, that there was no breach of'the reversionary clause, even if that was not eliminated by the second instrument referred to, which was executed in 1894. It also appears to us that the character of the occupancy of the property from 1894 to the date of the filing of the bill was adverse to the appellants. It appears to us that the instrument executed by Raynor and Russell in 1894 constitutes such color of title against Russell that the possession would be not only good, subject to the reversionary clause, but would also, under the testimony, be hostile, and under a claim of full and complete title under that instrument as a color of title'. It is.true that the law required the wife to join in a deed conveying the homestead, and that these instruments were'not originally valid because he and his wife occupied the property as a homestead. However the execution of the deed and the occupancy and use of the property thereunder for more than ten years thereafter would carry the title within the calls of the deed as though it were validly executed. The amended bill not only prayed for an injunction but prayed also for a cancellation of the appellants’ claims against the property and for a confirmation of the municipality’s title thereto. We think there is sufficient evidence to warrant the chancellor in finding against the appellants upon all propositions, and the judgment will be affirmed. Affirmed,