131 Iowa 277 | Iowa | 1906
The material parts of the contract upon which this action is predicated read as follows:
. That for and in consideration of the agreement by said David Galt, Jane McCornack, and Elizabeth Provan, said parties of the second part, that said William J. Gault, said party of the first part, shall receive one-fourth interest in the estate of John Galt, deceased, and Janet Galt, widow of said John Galt, and the further consideration that said David Galt, Jane McCornack, and Elizabeth Porvan, parties of the second part, shall relinquish to the said William J. Galt, and by these presents do relinquish, all their right, title, and interest either present or future, in the personal property upon the following described real estate, to wit: The east one-half of the southeast quarter of section 32, township 86 north, range 14 west of the 5th P. M., with the exception of the household furniture upon said real property, I, William J. Galt, party of the first part, hereby agree to relinquish all claims upon the estate of John Galt, deceased, and upon the estate of Janet Galt, widow of the said John Galt, deceased; and, further, said William J. Galt relinquishes all interest he may have in one certain last will and testament of the said Janet Galt, made and executed on the 9th day of October, A. D. 1894. The said William J. Galt further agrees
Jones v. Association, 92 Iowa, 652; Redman v. Insurance Co., 49 Wis. 431 (4 N. W. 591). If this be a condition at all, it is what is known in law as a condition subsequent; that is to say, one which if performed or violated defeats the contract. The breach might pccur either before or after plaintiff became entitled to the property under the terms of the contract, and in such cases, the rule is universal that the condition is a subsequent one. Cunningham v. Morrell, 10 Johns. (N. Y.) 203 (6 Am. Dec. 332); Finlay v. King, 3 Pet. (U. S.) 374 (7 L. Ed. 701); Bell v. Alexander, 22 Tex. 364 (73 Am. Dec. 268); Jones v. Railroad, 14 W. Va. 522; Regan v. Walker, 1 Wis. 556. The very language of the proviso indicates that the parties understood it to be a condition subsequent, in the nature of a forfeiture of plain
consideration for the contract. How much it had to do with it cannot be determined for the parties have furnished us no measure in the contract itself, and it is manifestly not divisible. Emigrant Co. v. Adams Co., 100 U. S. 61 (25 L. Ed. 563). As the condition is a subsequent one, which undertakes to annul the contract, we proceed to the next proposition; and that is, that a court of equity will not enforce a forfeiture by reason of the breach of such a condition. Marshalltown v. Forney, 61 Iowa, 584; Gardner v. Lightfoot, 71 Iowa, 577; Bonniwell v. Madison, 107 Iowa, 85; Wells v. Smith, 2 Edw. Ch. (N. Y. Ch.) 78.
Galt v. Provan, 108 Iowa, 565. Having used the contract in that case, and insisted upon its validity for the purpose of defeating plaintiff, it cannot now be heard to. say that the contract is not in force. Defendants will not be allowed to assume such inconsistent positions. Kramer v. Kramer, 68 Iowa, 567; Scott v. Luther, 44 Iowa, 572; Hyatt v. B. C. R. & N. R. R., 68 Iowa, 662; Shropshire v. Ryan, 111 Iowa, 677; Riegel v. Ormsby, 111 Iowa, 10.
On defendants’ appeal the case is affirmed, and on plaintiff’s appeal it is reversed.