117 Ill. 160 | Ill. | 1886
delivered the opinion of the Court:
This case is quite different in its facts from Frazier v. Miller, 16 Ill. 48, Oard v. Oard, 59 id. 46, and Jones v. Neely, 72 id. 449, cited by counsel for appellee. In each of those cases the grantor conveyed in consideration that the grantee undertook to furnish a home for the grantor, and take care of him and support him during life. t The consideration could not be measured by dollars and cents. The personal kindness and numerous delicate attentions demanded by the age and condition of the grantors in those cases, and that they might expect from the affections of the grantees, are not marketable commodities, and it was therefore impossible, by mere money compensations, to make the grantors "whole. What they had given their property for they had not received and they could not receive, and the circumstances justified the conclusion that the grantees, when they obtained the deeds, did not intend to perform the contracts. In this case the grantor contracted for nothing but the payment of money,— $200,—on the first day of March in each and every year, commencing on the first day of March, A. D. 1872, and thereafter during the natural life of the grantor, and the release by the grantee of the interest he otherwise would have in the estate of the grantor, upon his death, as one of his heirs at law. This release was conclusive upon the grantee, (Kershaw v. Kershaw, 102 Ill. 307,) and the payment to the grantor of $200 on the first day of March in each and every year, from the designated period, during his natural life, would give him all that he bargained for and ever expected to receive. As to the payments now over-due, interest "will, in legal contemplation, compensate for their non-payment.
In the construction of deeds, courts will always incline to interpret the language as a covenant, rather than as a condition. Board of Education v. Trustees, 63 Ill. 204.
There is nothing in the form of the language here employed to indicate that it was intended the conveyance was upon a condition subsequent. The words, “upon condition,” do not occur, and there are no other words of equivalent meaning. There is no clause providing that the grantor shall re-enter in any event, and these are the usual indications of an intent to create a condition subsequent. Sheppard’s Touchstone, (6th ed.) 118. The rule is, a court of equity will never lend its aid to divest an estate for a breach of a condition subsequent. 4 Kent’s Com. (8th ed.) 134, *130. But where a compensation can be made in money, courts of equity will relieve against such forfeitures, and compel the party to accept a reasonable compensation in money. 2 Story’s Eq. ¡Tur. secs. 13, 15, et seq.
The language here is reasonably susceptible of the construction that the parties only intended to secure the payment of the $200 during the lifetime of the grantor, and it is clear that much was intended. That was the only pecuniary interest the grantor had in the question of whether the land should be alienated or not during his lifetime. If alienated, the grantee might not be able to pay the $200 per annum; but if it could not be alienated during his "lifetime, it was ample security for the payment of the $200. The duty to pay the $200, and the inability to alienate, go together. It accomplishes the same result, does injustice to no one, and is more in harmony with the general rules governing the alienation of real property to hold that the grantor here retained a lien on this land for the payment of’the $200 annually, on the first day of March, during his lifetime. The appellants took whatever rights they may have, with notice, by the record of the deed, of all its reservations in favor of the appellee, (Willis v. Gay, 48 Texas, 463,—26 Am. B. 328,) and so theirs are subordinate to his.
There is' no proof of mental weakness in appellee, that he was overreached in any way, or unduly persuaded to execute the deed. From his own.testimony, the grantee did not solicit the making of the deed, dictate its provisions, or to the slightest extent control or influence the transaction, by word or deed. It is of appellee’s own invention, as he says, just as he intended it to be, and the wrong of the grantee is in not doing what he obligated- himself to do by accepting the deed.
The decree below is reversed, and the cause remanded, with directions to that court to enter a decree, in favor of appellee, against the land in controversy, for the several unpaid annual installments, of $200 each, with interest thereon from the time they were severally clue, at the rate of six per cent per annum, and that the payment of $200 hereafter, annually, on the first day- of March, during the life of appellee, be a lien on said land; and that in default of payment of such sums, the master in chancery proceed to make sale of the land, and that all interests and claims of appellants in said lands are junior and subordinate to the lien of appellee.
Decree reversed.
