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Gegenseitiger Wittwen und Waisen Fond, 44 | Without indorsing everything that is said in Wis. 369, is almost precisely like the instant the cases above cited, we should be running case. The constitution of the defendant counter to an overwhelming weight of aucorporation, whose governing body or di- thority were we to hold that the agency rectory was elected by the several 'groves' clause should be given full effect, regardless (corresponding to the sections in this case) of other clauses in the certificate or the byof the United Ancient Order of Druids, de- laws indicative of an intention to make the clared that every member whose assessment officers of subordinate lodges agents of the was not paid by his grove to the directory supreme or central authority. We should within thirty days after demand made for- rather seek to avoid, as far as possible, any feited his claim to have a certain sum in the injustice arising from a too literal internature of life insurance paid to his widow pretation, and only give the clause such efor heirs after his death. It was held that, fect as is consistent with the other by-laws, in view of all the provisions of such consti- and with the manifest equities of the case. tution, the benevolent object of the corpora- We are therefore of opinion that in this case tion, and the fact that the several groves are the secretary of the section was in reality at least as much its agents to collect and pay the agent of the supreme lodge from the time over the dues of their members as they are he received the monthly payments, and that agents of the latter, in case of a member the insured was not responsible for his failwhose dues have been fully paid to his grove ure to remit immediately after the tenth of at the time of his death the amount of in- the month." surance might be recovered, notwithstanding a default of the grove in paying over such dues to the defendant. The agency clause was also once before this court in the case of Grace v. American Cent. Ins. Co. 109 U. STATE of Mississippi ex rel. H. C. McLAU

S. 278, 27 L. ed. 932, 3 Sup. Ct. Rep. 207, in which a clause in the policy that the person procuring the insurance to be taken should be deemed the agent of the assured, and not of the company, was held to import nothing more than that the person obtaining the insurance was to be deemed the agent of the insured in the matters immediately connected with the procurement of the policy, and that, where his employment did not extend beyond the procurement of the insurance, his agency ceased upon the execution of the policy, and subsequent notice to him of its termination by the company was not notice to the insured. In the following cases the officers of the subordinate lodge

Reversed, and decree here for appellant.

REN, Appt.,

1.

A. MCDANIEL et al.

(........Miss......

The sureties on the official bond of a mayor are liable for his act in causing a person's arrest without a warrant, and trying, convicting, and sentencing him for an offense not made punishable by the ordin ances of the city under authority of which he claimed to act.

(May 7, 1900.)

PPEAL by relator from a judgment of the

or conclave were treated as the agents of A Circuit Court for Jones County in favor

the supreme conclave in the matter of granting extensions of time for the payment of assessments: Whiteside v. Supreme Conclave 1. O. of H. 82 Fed. Rep. 275; Knights of Pythias of the World v. Bridges, 15 Tex. Civ. App. 196, 39 S. W. 333. . The decisive consideration is this: Chadwick was the agent of the defendant, and of the defendant only, after the receipt of the money from Withers. Under section 10 he then became responsible for it to the board of control. In rendering his monthly accounts and paying over the money he acted solely for the defendant. From the time he paid the money to Chadwick the insured had no control over him, and was not interested in its disposition. Unless we are to hold the insured responsible for a default of this agent, which he could not possibly prevent, we are bound to say that his payment to this agent discharged his full obligation to the defendant. That it should have the power of declaring that the default of Chadwick by so much as one day (and it did not exceed four days in this case) to pay over this money should cause a forfeiture of every certificate within his jurisdiction is a practical injustice too gross to be tolerated.

of defendants in an action brought to recover damages for false imprisonment. Reversed.

Statement by Whitfield, Ch. J.:

This is a suit for damages for false imprisonment by appellant, plaintiff below, against A. McDaniel, mayor of the village of Sandersville, Mississippi, and others of the defendants in the lower court, appellees here, as sureties on the bond of said McDaniel. The declaration alleges that in May, 1897, A. McDaniel was appointed, by the governor, mayor of the village of Sandersville, and qualified as such by taking the oath of office as required by law, and by giving bond, with other of the appellees as sureties; that in the month of October, 1897, while said McDaniel was still mayor of said village of Sandersville, he caused the marshal of said village to arrest and take into his custody the usee herein, H. C. McLauren: that said arrest was not made on any war

NOTE. As to liability of sureties on official bond for unauthorized acts done colore officii, see McLendon v. State use of Kennedy (Tenn.) ing v. Wade (Md.) 40 L. R. A. 628; State use of Wilson v. Fowler (Md.) 42 L. R. A. 849; ani Clayton v. Henderson (Ky.) 44 L. R. A. 474.

21 L. R. A. 738, and note: State use of Cock

rant or writ, and without any affidavit or charge of any kind filed against said usee, nor was said usee taken in the commission of any offense or crime; that said McDaniel caused said usee to be brought before him, and, without having any affidavit or charge against said usee, and against his will, proceeded to and did impose a fine of $5 against him, without ever having any trial or pretended trial of said usee, for the offense, as said McDaniel claimed, of cruelty to animals; that about four days after said usee was arrested as aforesaid said McDaniel issued an illegal mittimus, not founded on any judgment of conviction, but on the pretended illegal proceedings, caused the said marshal to arrest the usee, and to imprison him in the village prison, and there kept him for several hours until an appeal bond was made; and that he was put to great expense in the matter; and that all the acts of the said McDaniel were wilful and malicious, there being no ordinance of the said village of Sandersville under which said usee could have been tried for cruelty to animals. The defendants demurred to the declaration of plaintiff, assigning the following causes for demurrer: (1) Because the bond sued on in this cause was a voluntary bond, and not required by law to be executed; (2) because the declaration shows no cause of action against defendants; (3) because the declaration is insufficient in law. On the trial of the cause the demurrer was sustained, and plaintiff's suit dismissed, and this appeal was prosecuted.

Messrs. Hartfield & McLauren for appellant.

Messrs. Hardy & Howell, for appellees: Without complaint or information being made by anyone the conviction was utterly null and void.

MeDaniel's acts were not those of a judge, but of a mere trespasser.

Bigham v. State, 59 Miss. 529; Wilcox v. Williamson, 61 Miss. 310.

The sureties on an officer's bond are not liable for his wrongful acts under void process, or no process at all.

McLendon v. State, 92 Tenn. 520, 21 L. R. A. 738, 22 S. W. 200; State use of Cocking v. Wade, 87 Md. 529, 40 L. R. A. 628, 40 Atl.

104.

An officer is not liable in an action on his official bond in the name of the state, for his acts done under void process, or no process at all.

McLendon v. State, 92 Tenn. 520, 21 L. R. A. 738, 22 S. W. 200.

Whitfield, Ch. J., delivered the opinion of the court:

On the authority of Bigham v. State, 59 Miss. 529, and Wilcox v. Williamson, 61 Miss. 310, the appellee McDaniel must be held liable. In Grove v. Van Duyn, 44 N. J. L. 654, 43 Am. Rep. 412, given at length in 42 Am. Rep. 648-650, note, Chief Justice Beasley, speaking for the court, while de

claring that "the jurisdictional test as the measure of judicial responsibility should be rejected," yet said that the magistrate would be liable on another ground in a case like this; saying (p. 650): "It would be no legal answer for the magistrate to assert that he had a general cognizance over criminal offenses, for the conclusive reply would be that the particular case was not, by any form of proceeding, put under his authority." What the magistrate does colore officii, his sureties are liable for. They are not liable, by the terms of their bond, for independent wrongs committed by the magistrate acting wholly as an individual, and not at all colore officii. The acts of this magistrate here in question were done colore officii, and not at all as an individual. He was not acting nor purporting to act in any mere individual capacity, as any private citizen would be. He expressly claimed to be acting as mayor, in the exercise of official authority as such; and it is plain that this is the true character of his acts. His action was in excess of his jurisdiction, or, at all events, he had no authority to try that particular case except in the manner required by law; but, nevertheless, what he did was done colore officii, and his sureties are liable. We approve the reasoning in the cases of Clancy v. Kenworthy, 74 Iowa, 740, 35 N. W. 427, and Turner v. Sisson, 137 Mass. 191, cited in the note to McLendon v. State use of Kennedy (Tenn.) 21 L. R. A. 738. Says the court in 74 Iowa, at page 743, 35 N. W., at page 428: "But it is insisted that, as the constable is shown to have had no lawful authority to arrest plaintiff, his act was, therefore, not done in the line of his duty. In truth his act was in the line-direction-of official duty, but was illegal, because it was in excess of his duty. In the discharge of official functions he violated his duty, and oppressed the plaintiff. This is all there is of it. If, in exercising the functions of his office, defendant is not liable for acts because they are illegal or forbidden by law, and for that rea

son are trespasses or wrongs, he cannot be held liable on the bond at all, for the reason that all violations of duty and acts of oppression result in trespasses or wrongs. For lawful acts in discharge of his duty he, of course, is not liable. It follows that, if defendant's position be sound, no action can be maintained upon the bond in any case." Say the court in 137 Mass. 191, 192: "By an official act is not meant a lawful act of the officer in the service of process; if so, the sureties would never be responsible. It means any act done by the officer in his official capacity, under color and by virtue of his office." See also State ex rel. Conley v. Flinn, 3 Blackf. 72, 23 Am. Dec. 380, and especially Brown v. Weaver, 76 Miss. 7, 42 L. R. A. 423, 23 So. 388, as reported in 71 Am. St. Rep. 512, and the note thereto. We think the sureties are liable. Murfree, Sheriffs, § 60.

Judgment is reversed, demurrer overruled, and cause remanded.

MASSACHUSETTS SUPREME JUDICIAL COURT.

Frederick A. CLAPP, Appt.,

v.

Aaron O. WILDER et al.

(........Mass......

1. An express condition in a deed that the grantee, his heirs and assigns, shall never erect any building nearer the street than a building then standing thereon creates a conditional fee, with the right of reverter in the grantor, his heirs or devisees. 2. A merely personal right, and not an easement appurtenant, was created by an express condition in a deed that the grantee, his heirs and assigns, should never erect a building nearer the street than the one then standing, where the grantor, who then occupied adjoining premises as a homestead, was an invalid, who usually sat at a window

from which he had a good view of the street,

and he had declared during the negotiations that he did not wish his view of the street from that window cut off, and should have a clause in the deed to prevent it.

serve a right in the nature of a servitude or easement in the property granted, for the benefit of other land owned by the grantor, and originally forming, with the land conveyed, one parcel, such right will be deemed appurtenant to the land of the grantor, and binding on that conveyed to the grantee; and the right and burden thus created will respectively pass to, and be binding on, all subsequent grantees of the respective lots,"—is the well-settled law of this state.

Whitney v. Union R. Co. 11 Gray, 359, 71 Am. Dec. 715; Beals v. Case, 138 Mass. 140.

The owner of adjacent lots may insist upon a condition when it is apparent that the condition was annexed to a grant for the purpose of rendering more beneficial and advantageous the use of the adjoining estate.

744; Badger v. Boardman, 16 Gray, 559. Jewell v. Lee, 14 Allen, 145, 92 Am. Dec.

The value of the granted lot will be increased if defendants should get rid of the condition, which was a material part of the title they purchased and accepted, and they

(Morton, Knowlton, and Lathrop, JJ., dissent.) would acquire a larger title than their deed

(June 20, 1900.)

A PPEAL by plaintiff from a decree of the Superior Court for Worcester County in favor of defendants in an action brought to enjoin the erection of a building in violation of a covenant in the title deeds. Affirmed.

The facts are stated in the opinion. Mr. Charles A. Babbitt, for appellant: The condition in the deed of Eaton to defendants is a restriction in the nature of a servitude, the benefit of which would attach to the adjoining estate, and pass with it as an appurtenance.

Whitney v. Union R. Co. 11 Gray, 359, 71 Am. Dec. 715; Jeffries v. Jeffries, 117 Mass. 188; Adams v. Valentine, 33 Fed. Rep. 1; Parker v. Nightingale, 6 Allen, 341, 83 Am.

Dec. 632.

gave them, and the plaintiff would have less than he had a right to suppose, having had notice of the condition.

Dorr v. Harrahan, 101 Mass. 534.

The retained land has been built upon. In place of the dwelling house is a large block, with large windows that would be of little value if the condition was not complied with. These acts of the parties tend to show that all parties considered the condition as a restriction.

Ayling v. Kramer, 133 Mass. 13; Keening v. Ayling, 126 Mass. 404.

If, in view of these facts, equity cannot be done by a perpetual injunction, the plaintiff should be equitably entitled to sub

stantial damages.

Jackson v. Stevenson, 156 Mass. 496, 31 N. E. 691.

The condition in Eaton's deed to defend

The words "and this conveyance is made ants-"this conveyance is made upon the exupon the express condition," in defendant's press condition," etc.-certainly creates a deed, are sufficient to create a condition the reservation equally as strong as the words, breach of which would forfeit the estate, un-"with the express reservation." less it appears from the whole deed the intention was not so to do.

Episcopal City Mission v. Appleton, 117 Mass. 329; Skinner v. Shepard, 130 Mass.

180.

The intention was "to reserve forever to his heirs and assigns," as the condition states, the right of light and prospect to the adjoining lot.

Lowell Inst. for Savings v. Lowell, 153 Mass. 533, 27 N. E. 518; Peck v. Conway, 119 Mass. 546; Dennis v. Wilson, 107 Mass.

592.

"When, therefore, it appears, by a fair interpretation of the words of a grant, that it was the intent of the parties to create or re

NOTE.-For easements appurtenant, see note to Hagerty v. Lee (N. J. L.) 20 L. R. A.. on page 635; also Peabody Heights Co. v. Willson (Md.) 36 L. R. A. 393.

Peck v. Conway, 119 Mass. 546.

Mr. Hamilton Mayo, for appellees:

A restriction in the form of a common-law

condition may be enforced by forfeiture if there is nothing in the context of the deed which warrants any other than the ordinary meaning of the technical words of condition employed, and nothing in the attending circumstances showing the parties did not intend that the words employed should have their ordinary meaning.

Gray v. Blanchard, 8 Pick. 284.

Where the terms of the instrument are plain and unambiguous there is no hesitation in enforcing the actual contract made by the parties.

Jones, Real Prop. chap. 743.

The cases where "conditions," so called, are held to have been intended as restrictions

as to the use of land or its enjoyment are on." The first question is whether this is a cases where there was a general scheme of common-law condition. The deed is in the improvement. ordinary form of a warranty deed in general Ayling v. Kramer, 133 Mass. 12; Parker use in this commonwealth, is carefully v. Nightingale, 6 Allen, 341, 83 Am. Dec. | drawn, and bears upon its face evidence that 632; Jeffries v. Jeffries, 117 Mass. 184; Ham- the draftsman understood the meaning of len v. Werner, 144 Mass. 396, 11 N. E. 684. the legal terms used. It conveys in apt lanIf this clause is a condition, this bill can-guage the land now owned by the defendants, not be maintained, for a failure to perform a condition can only be taken advantage of by entry for forfeiture by the grantor or his heirs, or suit for recovery of possession.

Dana v. Wentworth, 111 Mass. 291. This condition will be regarded as personal unless an intention to the contrary appears or may be presumed.

and creates also in express terms two easements, one of which is a right of way over a strip of land 8 feet wide on the grantor's land next southerly of and adjoining the land conveyed, and the other is the right to maintain a drain from the store building as conveyed to the grantor by a prior deed; and it reserves a right of way over a strip of land

Badger v. Boardman, 16 Gray, 559; Jew-upon the southerly side of the land conveyed, ell v. Lee, 14 Allen, 145, 92 Am. Dec. 744; Sharp v. Ropes, 110 Mass. 381; Beals v. Case, 138 Mass. 138; Lowell Inst. for Savings v. Lowell, 153 Mass. 530, 27 N. E. 518.

making, in connection with the right of way above conveyed to the defendants, a passageway 16 feet wide, to be used in common; and also the right to maintain a certain drain from the cellar of the house where the grantor resides to the cellar under said store building. Up to this point the grantor has

It is always a question of the intent of the parties, and in order to make the rule applicable it must appear from the terms of the grant, or the situation and surrounding cir-used language apt to create easements and cumstances, that it was the intention of the grantor to create a servitude or right which should inure to the plaintiff's land, and should be annexed to it as an appurtenance. Badger v. Boardman, 16 Gray, 559; Jewell v. Lee, 14 Allen, 145, 92 Am. Dec. 744; Beals v. Case, 138 Mass. 140; Sharp v. Ropes, 110 Mass. 381.

And the burden of proof is on the plaintiff to show such intention.

Lowell Inst. for Savings v. Lowell, 153 Mass. 530, 27 N. E. 518; Beals v. Case, 138 Mass. 138.

For aught that appears in the deed, the condition might have been intended for the benefit of the grantor only so long as he remained the owner of the remaining land.

Badger v. Boardman, 16 Gray, 559. In the absence of any words to the effect that the condition was intended to benefit Eaton's other land, or any reference to a plan showing a general scheme of improve. ment, the defendants took their estate without any notice, express or constructive, that the restriction was intended for the benefit of the adjoining estate.

reservations. He desires to do one thing more, and that is to prevent the erection of any building within a certain distance of the street. Everything else has been provided for. Here the language changes, and as to this one thing the deed is upon the express condition that this provision be complied with. The language is, "upon the express condition," an emphatic form of the expres sion "on condition." Whatever may be the force of this language in a will (see Atty. Gen. v. Wax Chandlers' Co. L. R. 6 H. L. 1; Bradstreet v. Clark, 21 Pick. 389), there can be no doubt of its usual meaning in a deed. The phrase sub conditione, or "on condition," is one of the three phrases by which, without more, a conditional estate may be created. It is the first one named by Littleton, and Coke says of it: "This is the most expresse and proper condition in deed, and therefore our author beginneth with it." 2 Co. Litt. 203 (a); Rawson v. School Dist. No. 5, 7 Allen, 125, 83 Am. Dec. 670, and authorities cited. In the deed before us it applies to one single thing perfectly plain and simple. The common law as to the creation of conditional estates has always been considered a part of our common law. If we are to have such estates, it is important that there should be the least possible uncertainty as to the form of the language to be used in creating them; and when we find in a deed an intensified form of the phrase, which from the earliest times has been regarded as "the most expresse and proper" phrase by which to create such an estate, it is to be assumed, in the absence of anything appearing in the deed to the contrary, that the phrase is used for its proper legal purpose, namely, to creThis case turns upon the legal force and ate such an estate, and that such an estate effect of this clause in the deed from Eaton is thereby created. No doubt there is a disto the defendants, namely: "And this con- position among courts to look for something veyance is made upon the express condition in the deed which shall modify the severity that said Wilder and Hills, their heirs and of the language; and sometimes considerassigns, shall never erect any building near-able astuteness has been exercised in this er the street than the store building there- direction (Post v. Weil, 115 N. Y. 361, 5 L

Skinner v. Shepard, 130 Mass. 180. When the intention of a person is relevant, that intent may be shown by his declarations at the time of the acts. They are part of the res gesta; they accompany the act, the nature, object, or motive of which is the proper subject of inquiry.

1 Greenl. Ev. § 101, and notes; Scott v. Berkshire County Sav. Bank, 140 Mass. 157,

2 N. E. 925.

Hammond, J., delivered the opinion of

the court:

the grantor up to the time of his death, went to his heirs or devisees. Gray v. Blanchard, 8 Pick. 284, 288; Allen v. Howe, 105 Mass. 241; Guild v. Richards, 16 Gray, 322; Hayden v. Stoughton, 5 Pick. 528; Austin v. Cambridgeport, 21 Pick. 215; Pub. Stat. chap. 127, § 1.

R. A. 422, 22 N. E. 145; and no doubt the language is sometimes used when from the whole deed it sufficiently appears that it could not have been intended in its full technical sense, and in such cases a restriction, and not a technical condition, is the result. Thus, in Sohier v. Trinity Church, 109 Mass. 1, 19, the expression "in trust nevertheless, The next question is whether this condiand upon condition always," was held not tion was imposed for the benefit of the land to create a condition, because "the grantors now held by the plaintiff. If it was, then it were merely a committee who had taken is immaterial whether it be in the form of a their title in trust for the society, and, if it condition or restriction, so far as respects were to come back to their heirs by forfeit the right of this plaintiff. Whitney v. Unure, it must be held by them in trust for ion R. Co. 11 Gray, 359, 71 Am. Dec. 715; the society, and thus would merely be turned Hopkins v. Smith, 162 Mass. 444, 38 N. E. into a trust estate." In Episcopal City Mis- 1122, and cases therein cited. Upon this sion v. Appleton, 117 Mass. 326, the words question the case comes to us in a singular "upon and subject to the condition" preceded way, and it is somewhat difficult to underone paragraph, and the words "and also up-stand the terms of the report. Upon the recon the further condition" preceded the next ord before us there is an agreed statement of paragraph, and they were held not to create facts, and it would seem that the case was conditions. As stated by the court, there submitted to the superior court upon that. was no reason for giving to the first phrase The trial judge ruled that the clause in disany different meaning than that given to the pute is a restriction, then "found from the other; and both clauses could not be con- terms of the deed and surrounding circumstrued as conditions, because "upon that stances and situation that it was not intendconstruction a breach of the first would, up-ed by the grantor to create a servitude for on entry by the grantor or his heirs, forfeit the benefit of plaintiff's land," and then, by the whole estate, and leave nothing in the consent of counsel, reported the case to this grantee to which the last part of the second court upon the bill, answer, agreed facts, and clause could apply." The second clause his "findings." If his so-called "finding" is could "therefore have effect only by way of to be regarded as a finding of fact, and that -estriction, and the first clause must have a finding is to stand, then there is no case for like interpretation and effect." So, also, the plaintiff. The parties, however, have where a conveyance is subject to several con- treated the matter as, in substance, a ruling ditions of varying importance regulating in law, and we therefore assume it was inthe mode in which the grantee may use and tended as such, and that the case is before enjoy the land, and it appears that they are us upon the bill, answer, and agreed facts. imposed as a part of the general scheme of The burden is upon the plaintiff to show that improvement, and therefore enforceable in the condition in the deed to the defendants equity by the owners of the estates for whose created a servitude or right in the nature of benefit they were imposed, they may be con- an easement, which, by implication, is made sidered restrictions, especially if one of them appurtenant to his land. The rule is stated be of such a nature as to be regarded as a in Whitney v. Union R. Co. 11 Gray, 359, 71 personal stipulation. Skinner v. Shepard, Am. Dec. 715, to be that, when "it appears by 130 Mass. 180; Ayling v. Kramer, 133 Mass. a fair interpretation of the words of a grant 12. So, also, a deed reciting that the prem- that it was the intent of the parties to create ises are conveyed subject to a condition con- or reserve a right in the nature of a servitained in a prior deed, and reciting the con- tude or easement in the property granted for dition, may be construed, not as reimposing the benefit of other land owned by the granthe condition by the grantor, but as convey- tor, and originally forming, with the land ing the title the grantor had received from conveyed, one parcel, such right will be his predecessor. Nor is the case of Cassidy deemed appurtenant to the land of the granv. Mason, 171 Mass. 507, 50 N. E. 1027, to be tor, and binding on that conveyed to the understood as extending this doctrine fur-grantee; and the right and burden thus crether than as stated in these two paragraphs.ated will respectively pass to and be binding Ayling v. Kramer, 133 Mass. 12. See Locke on all subsequent grantees of the respective v. Hale, 165 Mass. 20, 42 N. E. 331. The lots of land." But whether the condition case at bar does not come within any exception to the general rule as to the legal meaning of the phrase "upon the express condition." As stated by Parkes, Ch. J., in Gray v. Blanchard, 8 Pick. 284, 288: "The words 'this conveyance is upon the condition' can mean nothing more or less than their natural import. It would be quite as well to say that the words mean nothing, and so ought to be rejected altogether." It must be held, therefore, that the deed from Eaton to the defendants conveyed a conditional fee, and that the right of reverter, remaining in

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was intended to create merely a personal right or an easement appurtenant to some other land is always a question of intent. As stated in Beals v. Case, 138 Mass. 138: "It is always a question of the intention of the parties; and, in order to make this rule applicable, it must appear from the terms of the grant or from the situation and surrounding circumstances that it was the intention of the grantor in inserting the restriction [condition] to create a servitude or right which should inure to the benefit of the plaintiff's land, and should be annexed

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