60 Colo. 315 | Colo. | 1915
delivered the opinion of the court.
This case involves the right of a grantor in a deed to enforce the forfeiture of the title to certain lots, because of the violation of a clause in the instrument of conveyance prohibiting the sale of intoxicating liquors upon the premises,, except, by druggists, for medicinal purposes. The position of the parties in the trial court was the reverse of what it is here, and judgment of forfeiture was entered in favor of the plaintiff corporation, which was the grantor in the deed, and against the defendants, who had acquired their respective rights in the premises through deeds from the original grantee or his assigns. The defendants, plaintiffs in error here, concede the violation of the clause restricting the sale of liquor, but claimed in the court below, and here contend: (1) That such prohibitive and forfeiture clause in the deed of conveyance to their grantor was inserted therein, by the plaintiff, for the purpose of creating a monopoly in the sale of intoxicating liquors within the territorial limits of the townsite, and is, therefore, null and void: (2) That the plaintiff, having failed to demand of defendants possession of the premises before commencing its suit, can not maintain the action.
1. It is an elementary principle of law that every
The plaintiff corporation was organized February 9, 1906, and thereafter, on April 4th of the same year, acquired ownership of a quarter section of land which it afterwards platted into a townsite in which the lots in question are situate. The stockholders of the plaintiff corporation owned a controlling interest in another corporation which owned, and was engaged in operating, coal mines on land adjacent to the townsite, which was then unoccupied. The plaintiff, as an inducement to the workmen and employes of the coal company to make their homes in the proposed town, undertook to construct a number of cottages on the townsite to be sold to such employes, and for this purpose procured a loan for a considerable sum of money from a certain brewing company, for which it executed its note payable five years after date,, secured by a deed of trust' on all the town-site property, except two certain blocks and two lots in other blocks. As a part of this transaction, and to effectuate the plan and scheme of the plaintiff corporation to restrict and limit the traffic in intoxicating liquors in the village, it further agreed to convey the two lots aforesaid in fee simple to the brewing company, and to insert in all other deeds whereby it conveyed lots in such townsite, a condition that intoxicating liquors should never, except by druggists for medicinal purposes, be sold on the premises, and upon violation of the condition by the grantee in any such deed or his
2. Demand for possession, claim or entry upon the land was not essential before instituting the action. By the terms of the deed the grantee held the land by a defeasible title. The conveyance was upon condition that intoxicating liquors should never be sold upon the premises, except by druggists for medicinal purposes, and it was expressly provided therein that “in case of and upon the adjudication of a court of competent jurisdiction that this condition and covenant has been violated by said second party, his heirs, executors, administrators or assigns, the title to the premises hereby conveyed, and every part thereof, shall revert to and revest in said first party, its successors and assigns.” So an action and adjudication of the court was essential to reinvest the title to the premises in the plaintiff. The pleadings were sufficient for this purpose, and the decree disposed of the entire controversy and determined the rights of the parties in the premises. The judgment is, therefore, affirmed.
Judgment affirmed.
Gabbert, C. J., and Bailey, J., concur.