86 Ind. 567 | Ind. | 1882
Jeremiah Cory devised one hundred acres of land to his son Moses W. Cory, on condition that he should make ample provision for the comfort and maintenance of his sister Catherine during her natural life.
The appellants, who are the heirs of said testator, brought this suit against the appellee on the 23d of November, 1880, alleging that they are the owners as tenants in common of said land, except an undivided twelfth part thereof owned by defendant; that the land was devised as aforesaid to Moses W» Cory; that ever since March 12th, 1879, he has failed and refused to support and maintain said Catherine, although often requested thereto by plaintiffs on her behalf; that plaintiffs, as such heirs at law, upon such failure, became the owners of said land, and as such owners have entered upon and taken possession of it; that defendant claims title thereto under a sheriff’s deed, made upon the foreclosure of a mortgage executed by said Moses to one Johnson, but that said condition was broken before the date of said deed. The plaintiffs demanded that said undivided eleven-twelfths be set off to them in a body, and that their title thereto be quieted, etc. Copies of the will and probate were annexed to the complaint.
The defendant answered each of the two paragraphs of the complaint by a general denial. He also filed a counter-claim to the entire complaint in two paragraphs:
1. That defendant owns all of said land, subject to a claim in favor of said Catherine thereon, for her comfortable sustenance and support during life, and praying that his title be quieted as against all the plaintiffs except said Catherine, and that she be declared without interest in the land, except a lien thereon for her comfortable sustenance and support during life.
2. Admitting the seizin of Jeremiah Cory, and the devise to Moses on condition, and the heirship of the plaintiffs and Moses Cory, as stated in the complaint, and alleging that, on October 1st, 1875, said Moses, under said devise, was the owner of said land in possession, and on that day borrowed
The plaintiffs filed an answer in denial of each paragraph of the counter-claim. The issues were tried by the court upon “ an agreed statement of facts in writing.”
The court found for the defendant upon the complaint and upon the counter-claim, and that he is the owner in fee simple of .the land, and has been such owner since February 23d, 1880, the same being subject in his hands to a claim in favor of the plaintiff Catherine Cory, for her support, as provided in the last will of Jeremiah Cory, deceased.
The record here states “ to all of which finding and conclusions of law plaintiffs except and object.” The finding was made at October term, 1881. At January term, 1882, the plaintiffs moved for a new trial, alleging the following reasons therefor:
1. The findings are contrary to law.
2. The findings are contrary to the evidence.
3. The findings are contrary to law and the evidence.
4. There was not a proper submission of said cause.
This motion was overruled; judgment was rendered pursuant to the findings. The record here states, “to all of which judgment the plaintiffs object and except.” The plaintiffs appealed; they assign errors:
1. In the conclusions of law upon the facts found.
3. In overruling the motion for a new trial.
4. In finding against Catherine Cory.
5. In rendering judgment against the plaintiffs, quieting the appellee’s title.
It appears, by the bill of exceptions, that the evidence consisted of an agreed statement of facts. It was not a trial upon •an agreed case under section 386 of the code of 1852, which is section 553 of R. S. 1881 ; there was no affidavit. The Endings were not special under section 341 of the code of 1852, which is section 551 of R. S. 1881, because neither party requested a special finding. The findings were general, involving conclusions of law and fact. There were, therefore, no conclusions of law to be excepted to, and the first and ■second specifications in the assignment of errors present no question. Smith v. Johnson, 69 Ind. 55; Martin v. Martin, 74 Ind. 207; Downey v. Washburn, 79 Ind. 242. In such a case, in order to bring up the question whether the decision was contrary to the law and the evidence, a motion for a new trial is the only proper proceeding. Slessman v. Crozier, 80 Ind. 48.
The fourth and fifth specifications in the assignment of «errors present no question. Truitt v. Truitt, 38 Ind. 16; Ray v. Detchon, 79 Ind. 56; Durham v. Craig, 79 Ind. 117; Kendel v. Judah, 63 Ind. 291; First Nat. Bank v. Colter, 61 Ind. 153.
As to the third specification in the assignment of errors, viz., overruling the motion for a new trial, the fourth reason for a new trial, to wit, that the cause was not properly submitted, is not alluded to in the appellants’ brief, and is, therefore, regarded as waived. The only question remaining is, was the verdict contrary to' the law or to the evidence.
The agreed statement of facts shows that the will of Jeremiah Cory, containing the conditional devise hereinbefore set forth, was duly admitted to probate on June 16th, 1874, and
There can be no doubt that Moses W. Cory held the land under the will upon a condition subsequent, and that, upon a breach of the condition, his title would be defeated and the land would revert to the heirs of the devisor, upon the exercise by them of the right of entry or its equivalent. Cross v. Carson, 8 Blackf. 138 (44 Am. Dec. 742); Thompson v. Thompson, 9 Ind. 323; Lindsey v. Lindsey, 45 Ind. 552. Condition broken gives the right of re-entry. Scott v. Stipe, 12 Ind. 74; Leach v. Leach, 4 Ind. 628. In Indiana, a demand ■of possession is equivalent to an entry on the premises. Indianapolis, etc., R. W. Co. v. Hood, 66 Ind. 580; Clark v. Holton, 57 Ind. 564.
Neglect to perform the condition does not, ipso facto, determine the estate, but only exposes it to be defeated and determined at the election of the grantor, and, in case of his death, his heirs, to be signified by some act equivalent to reentry at the common law. Ludlow v. New York, etc., R. R. Co., 12 Barb. 440; Nicoll v. New York, etc., R. R. Co., 12 N. Y. 121. There must be a demand, on the part of the persons entitled to insist upon its performance, whether the ■condition consists in the payment of money, or the performance of some other act, and a refusal on the part of the person in whom the title is vested. Lindsey v. Lindsey, supra, Schuff v. Ransom, 79 Ind. 458; Risley v. McNiece, 71 Ind. 434, 439. In the case of Schuff v. Ransom, just cited, the following is the language of the court by 'Worden, J.: “The stipulations to be performed by the defendant, other than,” etc., “were exclusively for the benefit of said Spaldin, and he does not appear to have made any demand of performance, which was necessary in order to work a forfeiture of the estate.”
It would seem, therefore, that, in the case at bar, the proper person to make the demand was Catherine Cory, and it does
At the time this demand was made, Moses Cory was no longer the owner of the land. The agreement shows that Johnson bought the land on February 15th, 1879; that his assignee, the appellee, received the sheriff’s deed on February 23d, 1880. The title of the appellee, therefore, related back to the day of sale, which was February 15th, 1879, twenty-five days prior to said alleged breach by Moses Cory. Moses Cory having ceased to be the owner of the property, and the mortgage made by him having been subject to the condition, the purchaser at the mortgage sale and his assignee, the appellee, took the land subject to the condition, and, after the appellee’s title accrued, the performance of the condition devolved upon him, and any forfeiture would be by him, and not by Cory. Certainly, in such a case, the appellee would be permitted, in a court of equity, to come in and perform the condition and save the forfeiture. Leach v. Leach, supra.
That is substantially what the appellee in his counter-claim demands, and that alone will properly protect the interests of said Catherine, because, under the mortgage decree, the entire land is held by the appellee subject to the condition; but, if the appellants should succeed in establishing a forfeiture, they will take as heirs, and not under the will, and Catherine, instead of having the whole land bound for her support, will take only one-twelfth of one hundred acres. The circumstance of an estate being subject to a condition does not affect its capacity of being aliened, devised, or transmitted by descent, in the same manner as an indefeasible estate; the purchaser, or whoever takes the estate by devise or descent, taking it subject to whatever is annexed to it. 2 Washb. Real
It appears from the agreed statement that the appellee never had possession of the land; that he was compelled, after receiving the sheriff’s deed, to bring suit against Moses Cory for possession, which suit was tried at the October term, 1880, of the Union Circuit Court; that Thomas Little was an attorney for said Cory in said suit, and was also employed by the other heirs of the testator; and that said Little, in the month of October, 1880, acting for said other heirs, demanded of his client Moses Cory the performance of the condition, which being refused, he told Moses that said other heirs “ would take or continue to hold the land in controversy unless he did support said Catherine,” to which Moses replied “ he could not help it.”
It is elsewhere stated in the agreement, that, “on June 1st, 1880, the plaintiffs, as the heirs at law of said testátor, took possession of said land, and now hold the same as such heirs.”
At common law nobody but the grantor or his heirs could enter for condition broken. Co. Litt. 214 b, 218 <£. The
It is not alleged in the agreement that the possession of the heirs in June, 1880, was by way of entry for condition broken. The heirs evidently did not rely upon it as revesting the estate in them, because four months afterwards, in October, 1880, they by their attorney, Mr. Little, notified Moses Cor.y, that, unless he would support Catherine, they “ would take or continue to hold the land in controversy.”
We think it clear that there was no entry for condition broken in June, 1880. The inference is .very-strong that the possession was then taken by the consent and connivance of Moses Cory, who was defending the possession against the appellee.
The appellee’s counter-claim charges fraud and connivance between Moses Cory and the other plaintiffs, in order to defeat the title of the appellee. We think there was no proof of any sufficient entry for condition broken, and, under the circumstances disclosed by the agreement, we are satisfied that the finding of the court was not contrary to the evidence, nor contrary to law.
There was no error in overruling the motion for a new trial. The judgment should be affirmed.
Per Curiam. — It is therefore ordered, on the foregoing opinion, that the judgment of the court below be and it is hereby in all things affirmed, at the costs of the appellants.