THORNTON et ux. v. MAYOR, ETC., OF CITY OF NATCHEZ, 129 F. 84

PARRANGE, District Judge. We are satisfied, after full consideration of the matter, that the grant was not made on condition subsequent. Such a condition is not favored in law. 4'Kent’s Com. marg. p. 129. Even when a provision is stated in terms to be a condition, a court will determine for itself, not from the statement alone, but from the whole deed or grant, whether a condition was really intended. In this case no condition was stated in terms. A consideration of $500 was paid the grantors, and the grant was not made purely and exclusively from motives of charity or benevolence.

No provision whatever was made for re-entry by or reversion to the grantors or their heirs or legal repesentatives. The land was maintained as a public burying place for nearly three-quarters of a century. There is nothing averred in the bill from which we could gather that the grantors intended that the land should be maintained as a public burying place literally in perpetuity, and without regard to the necessities and welfare of all the generations which were to follow.

In the absence of any declaration of such an intention, and of anything in the grant from which it could be reasonably inferred, we are to conclude that the grantors meant that the land should be used for the purposes for which they desired it to be used, as long as it was right and proper to do so, in view of the nature of the grant and of its purposes. But, in any event, it is beyond question that the grantors made no record of any intention on their part, either expressed or intimated, that the land should ever under any circumstances revert to'them or to their representatives.

The appellants have not stated a case entitling them to the reversion. They have not even shown that they have an interest or a right in the further carrying out of the purposes of the grant. The matter in hand was carefully considered in the able opinion in Rawson v. Inhabitants of School District No. 5 in Uxbridge, 89 Mass, 125, 83 Am. Dec. 670. Also see Greene v. O’Connor (R. I.) 25 Atl. 692, 19 L. R. A. 262 (see notes); Sohier v. Trinity Church, 109 Mass. 1-19; Episcopal City Mission v. Appleton et al., 117 Mass. 326; Barker et al. v. Barrows, 138 Mass. 578; Stanley v. Colt, 5 Wall. 119, 18 L. Ed. 502.

We are furthermore fully satisfied, after consideration of the statutes of limitations of Mississippi, that the appellants have by their Jaches debarred themselves from prosecuting this action. The conversion of a public burying ground into a public park, and the other acts which the appellants averred in support of the fraud and concealment alleged by them, could not but have been open, public, and notorious. Concealment of those acts would have been impossible. The bill, it is true, avers that the appellants had neither notice nor knowledge.

But such an allegation, in a matter like the one in hand, is a mere conclusion of the pleader, not binding on demurrer, unless facts are stated from which the court can determine for itself whether the conclusion was correctly drawn. See Wood v. Carpenter, 101 U. S. 135-140, 25 L. Ed. 807. The acts complained of took place in the year 1890. Either the appellants knew of those acts prior to the year 1901, or else they could have had the knowledge by exercising reasonable diligence.

The appellants, having allowed such a lapse of time to occur before bringing their action, cannot be heard to complain at this late hour. In view of the statutes of limitations of Mississippi, we do not understand that the appellants’ counsel contends that the appellants were entitled to actual notice. But see Elder v. McClaskey et al., 70 Fed. 529, 17 C. C. A. 251. There are other matters averred in the demurrer which have much force. But we deem it sufficient to rest our affirmance of the decree appealed from on the two grounds stated. The decree of the lower court is affirmed.