47 Mich. 130 | Mich. | 1881
Lead Opinion
It is to be regretted that we did not have the benefit of a careful'examination and argument by counsel upon what this court considers the important question in this case. Counsel seem to have conceded the validity of the condition, claiming simply that there had been a waiver thereof by the plaintiffs, the original grantors, and if not, that the defendant below was at all events entitled ■to be compensated for his improvements.
It is familiar doctrine and well settled that “ conditions subsequent are not favoured in law, and are construed strictly, because they tend to destroy estates; and the rigorous exaction of them is a species of summum jus, and in many cases hardly reconcilable with conscience.” 4 Kent Com. 129; Mich. State Bank v. Hastings 1 Doug. (Mich.) 257; Calkins v. Smith's Estate 41 Mich. 412.
It appears from the record that the plaintiffs below, ■defendants in error, were the owners of lot 5 in block 21 of the village of Otsego Lake on the 10th day of June, 1879. That on said June 10th they conveyed this lot, by warranty
July 8,1879, Hilton and Turner, by warranty deed, in the-usual form, conveyed the premises to Samuel S. Morris, who-conveyed to the defendant July 31, 1879. The plaintiffs, also introduced a certified copy of the docket of one Adam Assel, a justice of the peace, showing that the defendant had. pleaded guilty to the offense of selling liquor without having-a bail bond, and then rested.
The defendant was examined in his own behalf and testified that he was owner of an undivided one-half of the premises, and occupied it for keeping a saloon and billiard hall,, and also offered to show that for some time prior to his-purchase, and to the knowledge of the plaintiffs or some of them, the buildings were used for the purpose of selling-intoxicating liquors. The defendant also testified that he-had put improvements upon the property, far exceeding the> value of the unimproved lot.
It is well settled that a condition subsequent may be-waived, where broken, by the party who has the right to avail himself of it, and this may be proven as well by acts- and conduct as by añ express agreement, and where onc&
That the plaintiffs could waive the condition there can be. no question, and if they permitted the premises to be used in violation thereof, they could not stand by, see the property change hands, and after valuable improvements had been made thereon, then step in, insist upon, a forfeiture, and thus .acquire the improvements made upon the strength of their .seeming acquiescence. And even should the defendant be entitled to recover the value of the improvements under our .statute — a point upon which we express no opinion — still the defendant could not in all cases be fully protected thereby. It is well known that in many cases, because of the growth «of our cities and villages, real estate, and especially business locations therein, rapidly increases in value, so that even where no improvements may be made upon the property, to permit a grantor to stand by and see the property used in violation of his condition, without objection, until it had become of considerable value, and then insist upon a forfeiture, certainly would not tend to pi’omote justice — especially where property changes hands so frequently as it does in growing-villages.
A more serious question however remains to be considered in this case. ' May an owner of lands, when conveying the ¡same, insert such conditions subsequent as his fancy may dictate, and upon a breach thereof, insist upon a forfeiture of the estate, although such breach in no way tends to his prejudice ? May he insert a condition that even an unobjectionable business shall not be carried on upon the premises ; or that a particular use of the premises and none other shall be made; or that if any violation of the laws of the
The right to insert conditions, like the one in this case, we do not question, where it appears that the grantor has a special interest in the enforcement thereof. An owner of real estate, when conveying a part thereof, may undoubtedly impose conditions, which if reasonable, courts would by an appropriate remedy restrain and prevent the violation thereof5 for the protection of the grantor and his privies in estate, certainly so long as the reasons which gave rise to the condition still existed.
Nothing however of this kind exists in the present case. It does not appear that the plaintiffs at the time of the conveyance or since then owned any other .lands in the village or vicinity of Otsego, or that they resided in the village or vicinity, or had in any way a special interest in the enforcement of this condition. A party owning two adjoining lots, or a tract of land, may when selling one or a part of the tract, be interested in preventing any noxious business from being carried on thereon, or in having it improved in a certain manner. The reason in such cases would be apparent and so long as it existed should be ground for enforcing the condition. When however the grantor has parted with all interest in the remaining property, while his subsequent, grantees may be interested in and have a right to insist upon such a condition, it may be very questionable whether he has any such right or interest.
Our statute, however, puts this question at rest and settles any doubts that might otherwise exist. “ When any conditions annexed to a grant or conveyance of lands are merely nominal, and evince no intention of actual and substantial
The judgment must be reversed with costs and a new trial ordered.
Concurrence Opinion
I concur in holding that in view of the statute the plaintiffs made no case for a recovery.
