49 Ind. App. 355 | Ind. Ct. App. | 1912
Appellee on June 5, 1903, executed and delivered to the Mississinewa Window Glass Cooperative a deed to certain real estate in Delaware county, Indiana, containing three acres.
The deed by which said land was conveyed is as follows:
“This indenture witnesseth that Samuel Gregory and Sarah A. Gregory, his wife, of Delaware county, Indiana, convey and ivarrant to the Mississinewa Window Glass Cooperative of Wheeling, in Delaware county, in the state of Indiana, for the sum of $1, and*357 other good and valuable consideration, the following real estate in Delaware county, in the state of Indiana, to wit: [Describing real estate.] It is especially agreed as part consideration herefor that the real estate above described, and hereby conveyed, is conveyed for, and shall be used only for, manufacturing purposes. The grantee herein, as part consideration herefor, assumes the payment of and agrees to pay all tases and assessments upon or against the real estate before described. In witness whereof said Samuel Gregory and Sarah A. Gregory, his wife, have hereunto set their hands and seals this June 5, 1903.
Samuel Gregory.
Sarah A. Gregory.”
On July 7, 1904, George R. Mansfield, as receiver of the Mississinnewa Window Glass Cooperative, by order of the Delaware Circuit Court conveyed said real estate to the LaRuche Window Glass Company, by a deed containing like provisions as to the use to be made thereof, and reciting a consideration of $300.
On April 18, 1908, the LaRuche Window Glass Company conveyed said real estate to appellant, by a deed reciting a consideration of $1, and omitting the provisions contained in the two former deeds, defining the purpose for which the real estate conveyed should be used.
On March 13, 1908, appellee brought this suit against appellant in the Delaware Circuit Court. The complaint is in four paragraphs. The first two paragraphs seek to quiet plaintiff’s title in and to the real estate described in the deeds, to which we have heretofore referred, and the third and fourth paragraphs seek to eject the appellant from the possession thereof.
Appellant filed a separate demurrer to each paragraph of complaint, on the ground that neither paragraph of said complaint stated facts sufficient to constitute a cause of action. These demurrers were overruled by the court, and this ruling presents the first error relied upon for reversal.
The motion for a new trial filed by appellant was overruled, and this ruling is assigned as error. Several reasons were assigned as causes for a new trial, but the one upon which appellant principally relies is that the finding of the court is not sustained by sufficient evidence.
He must recover upon the strength of his own title. Blake v. Minkner (1894), 136 Ind. 418; Krotz v. A. R. Beck
It is claimed on behalf of appellee that the title to the real estate in controversy revested in him by virtue of a condition contained in the deed first set out in this opinion, and by the breach of such condition and reentry by appellee pursuant to such breach. On behalf of appellant, it is insisted that the clause of the deed relied on by appellee is not a condition subsequent, the breach of which would give the grantor the right to terminate the estate of the grantee by reentry, but that it amounts only to a covenant as to use, the breach of which would give rise to an action for damages.
The deed to which we have just referred recites a consideration of $1, and other good and valuable consideration. Following the description, the deed contains the clause following :
“It is especially agreed as a part of the consideration herefor that the real estate above described and hereby conveyed is conveyed for, and shall be used only for, manufacturing purposes.”
“A condition subsequent that will defeat an estate created by a deed must be fairly expressed in the deed itself.
4. The words used must create the condition. The court will not supply it, if the parties fail to express it.” Sumner v. Darnell (1891), 128 Ind. 38, 13 L. R. A. 173.
We cite a few of the many cases in which a clause in a deed has been held to express a covenant and not a condition, notwithstanding the use of the words “upon condition,” or other words of like import. Episcopal City Mission v. Appleton (1875), 117 Mass. 326; Post v. Weil, supra; Avery v. Neto York, etc., R. Co. (1887), 106 N. Y. 142, 12 N. E. 619; Clark v. Marlin (1865), 49 Pa. St. 289; Barrie v. Smith (1881), 47 Mich. 130, 10 N. W. 168.
In both the cases last cited it appears that the deeds were executed upon the sole consideration. that the real estate conveyed should be permanently used for the purposes mentioned in the conveyances. In neither deed were there any apt words used to express an intention that the estate should be a conditional one, depending upon the use to which it was put by the grantee, and there was no provision in either deed that the title should revest upon failure to apply the property to the use mentioned. The deed construed in the first ease, after reciting that the conveyance was made upon the consideration of the permanent location and construction of the depot of the grantee railway company upon the lots described, provided in the habendum clause as follows: “To have and to hold the premises aforesaid, with the appurtenances, to said party of the second part for the purposes aforesaid.” This ease was cited in the case of Sumner v. Darnell, supra, in which, referring to the language just quoted, the court said: “The statement of the use and condition was much stronger than is contained in the deed under consideration, and it does not support the position of the appellants. ¥e do not feel called upon to ex
Courts are more inclined to treat a conveyance as conditional where the declared purpose for which the property is to be used is one which will inure to the special benefit of the grantor, than in eases where the declared use is such as will inure to the benefit of the public at large or to some particular class of persons. Downen v. Rayburn (1905), 214 Ill. 342, 73 N. E. 364. So, where the language of a clause in a deed indicates a purpose simply to define and regulate the use which shall be made of real estate granted, and where it does not appear that such use is for the special benefit of the grantor and his heirs, it will not be construed as a condition subsequent. Episcopal City Mission v. Appleton, supra. There is nothing in the deed under consideration or in the evidence to show that the grantor had any special interest in having the real estate in question used for factory purposes. In the absence of evidence showing that at the time the deed was executed, the grantor owned other lands in the immediate vicinity which would be benefited by the operation of a factory on the .lands conveyed, no infer
"We have referred to the evidence in this ease for the purpose of affording a means of distinguishing the case at bar form the cases of the Indianapolis, etc., R. Co. v. Hood, supra, and Cleveland, etc., R. Co. v. Coburn, supra. In the first case much stress is laid on the fact that the purpose for which the property was to be used, as expressed in the deed, was the sole consideration of the conveyance, while in the second case the court seems to have been governed largely by the existing facts of the particular case. The court said at page 562 of the opinion in the second case: "In determining the question whether the estate granted is one upon a condition subsequent, the court will seek to enforce the intention of the parties, to be gathered from the instrument and the existing facts.” As we have pointed out, there is nothing in the language of the instrument clearly indicating an intention to create an estate upon condition and the attendant facts and circumstances are not of such a character as clearly to indicate such an intention when considered in connection with the language of the deed. To hold that the deed in question creates an estate upon condition, would clearly extend the rule in favor of conditions subsequent, beyond that indicated in the case of Indianapolis, etc., R. Co. v. Hood, supra. As the Supreme Court has held that the rule has been carried quite far enough in its application to the facts in that case, and has expressly refused further to extend it, we do not feel at liberty to do so. Sumner v. Darnell, supra. We therefore hold that the deed from Gregory and wife to the Mississinewa Window Glass Cooperative did not create a conditional estate, but an absolute estate in fee simple, and that the clause in said deed, wherein it is agreed as a part of the consideration that the land conveyed shall be used only for manufacturing purposes, is a covenant
Cases of the character just cited must be considered as constituting a class of their own to which the strict rules of construction against conditions subsequent are not applied. In the case of Cree v. Sherfy, supra, our own Supreme Court quotes with approval the following language from 28 Cent. L. J. p. 321: “Conveyances of property by aged and infirm people to their children, in consideration of
As the deed from Gregory and his wife conveyed an absolute estate and not a conditional one, the other questions presented by this appeal become unimportant. Under the evidence, appellee had no title to the real estate in controversy at the time he commenced his suit. The evidence does not sustain the finding, and the motion for a new trial should have been sustained.
Judgment reversed, with directions to grant a new trial.