84 S.E. 280 | N.C. | 1915
This is an action in the nature of ejectment to recover the land described in the complaint, upon the theory that the ancestor of defendants, John G. Taylor, had forfeited his right and title thereto by reason of his breach of the following stipulation in the deed made to him for the land by the ancestor of the plaintiffs, Margaret Taylor: "The said deed is made on this special trust: That the said John G. Taylor is to feed, clothe, and kindly care for the said Margaret Taylor all of her natural life, and should the said John G. Taylor fail to feed, clothe, and kindly care for the said Margaret Taylor, then this deed is to be null and void." The defendant demurred to the complaint, upon the ground that the stipulation is a covenant and not a condition, for the breach of which the estate was forfeited and reverted to the grantor; that the complaint fails to state that Margaret Taylor ever insisted upon the breach as a forfeiture, by act or conduct, during her lifetime, or attempted to avail herself of it, and that she had, therefore waived the same, and no right now exists in her heirs to take advantage of the breach, and that for these reasons plaintiffs cannot maintain this action. The demurrer was *340
overruled, and defendants appealed. This fairly states the several contentions of the defendants.
The stipulation in the deed for support and maintenance is not like those found in the cases to which the learned counsel for defendant has referred in his brief and argument, such as Helms v. Helms,
Formerly, and at common law, it was held that actual entry upon the land was necessary, upon the idea that as the estate was created by a solemn act, viz., a grant and livery of seizin, it must be defeated and restored to the grantor by an act equally solemn, under the maxim of the common law,eo ligamine quo ligatur. If a feudal tenant failed to perform the services, his estate was not defeated until the lord had judgment in a writ ofcessavit. If a subject incurs a forfeiture by committing treason, his estate is not defeated until "office found." If a feoffment is made on condition and the condition be broken, the estate continues until it is defeated by the entry of the feoffor or his heirs. Coke on Lit., chapter on "Conditions." But the grantor cannot enter or make claim when already in possession. Rollins v. Riley,
A party, for whose benefit a condition subsequent is attached to a devise of land, being in possession at the time of the breach, is presumed to hold for the purpose of enforcing the forfeiture, though he may waive it. "The law will presume that a person who cannot make a formal entry upon the estate of another for condition broken, because he (275) is already in possession, intends to hold possession to enforce all his legal rights, unless there be some indication that such was not his intention, by which the presumption of law may be rebutted. When the facts disclosed are inconsistent with a claim to hold for condition broken, the presumption will be rebutted, or the person entitled to make an entry will be considered as having waived a performance of the condition. Forfeitures are not favored by the law; and any acts of the party entitled to cause a forfeiture, clearly inconsistent with a claim to be the owner of the estate by forfeiture, must be regarded as proof that performance of the condition was not intended to be enforced for the purpose of creating a forfeiture." Andrews v. Senter,
It is unquestionably true that not only the grantor, during his life, but his heirs, or privies in blood, after his death, may take advantage of the breach of a condition subsequent and bring suit for the land or to declare the estate forfeited. Sheppard's Touchstone, 125; Tiedeman on Real Property, sec. 207; Den ex Dem. Southard v. Central R. Co.,
There are no allegations in the complaint sufficient to show a waiver of the breach in failing to support the grantor. It would seem to be implied that Margaret Taylor had been in possession of the land during her life, as it is alleged that defendants have had the possession since her death. There is certainly not enough in the complaint for us to declare, as matter of law, that she had waived or abandoned her right to take advantage of the forfeiture caused by the breach. There is really nothing *345 alleged that shows that she did, and upon the meager statement in the complaint we would be unwilling to hold that, in law, there had been a waiver. When the answer comes in and the facts and developed, under proper issues submitted for the purpose, we may see more clearly what are the legal rights of the parties and declare them accordingly.
There was no error in overruling the demurrer and allowing defendants to answer.
No error.
Cited: Huntley v. McBrayer,