206 Ky. 629 | Ky. Ct. App. | 1925
Opinion of the Court by
Affirming.
Prior to June 28, 1902, Ben Hale owned the fee in the tract of land here involved. On that date he and his former wife conveyed same to their daughter, Josie Shepherd, for the stated consideration of $200.00 and love and affection.
The deed conveys the fee, but without covenant of warranty, and subject to the limitations thus stated in the habendum clause:
“The said party of the second part to have and to hold said land 'to her and her heirs forever; but the parties of the first part retain the right to use and cultivate any part or all of said land as long as they or either of them may live; but when they are not cultivating it the party of the second part may use and control it as she pleases, but she is not to sell or dispose of said land, or any part of it, as long as the parties of the first part or either of them live, without their consent.”.
On January 2nd, 1904, Josie Shepherd and her husband conveyed the minerals in the land, together with customary mining privileges, to W. S. Harkins. This, deed was promptly recorded, and the appellee Elkhorn Coal Corporation is now the owner, through several mesne conveyances, of the interest conveyed to Harkins, if his deed is valid.
By their several pleadings in this action filed August 5th, 1920, Ben Hale, his .present wife Josie Hale, and their infant son, Ben P. Hale, each seeks to have annulled or declared void all the deeds through which the Eikhorn Coal Corporation claims title to the minerals, and also an adjudication of their respective interests in the land as the result of more recent conveyances by Mrs. Shepherd to Hale, and by him to his wife and infant son. Demurrers of the appellee coal corporation having been sustained to their several pleadings, and the action and cross-action against it dismissed, they have appealed.
For appellee it is urged that the above restriction in the deed to Mrs. Shepherd is not a condition but a covenant, and that, even if mistaken in this contention, her deed to Harkins was voidable only and that in any event the demurrers were properly sustained.
That the restriction referred to is a condition subsequent rather than a covenant is clearly established by an unbroken line of decisions from this court, the more recent of which, wherein practically all former ones are cited, are Kentland Coal & Coke Co. v. Keen, 168 Ky. 836, 183 S. W. 247, L. R. A. 1916D, p. 924; Turner v. Lewis, 189 Ky. 838, 226 S. W. 367; Price v. Virginia Iron, Coal & Coke Co., 171 Ky. 524, 188 S. W. 658; Brock v. Conkwright, 179 Ky. 555, 200 S. W. 962; Francis v. Big Sandy Co., 171 Ky. 210, 188 S. W. 345; Pond Creek Coal Co. v. Day, 187 Ky. 823, 220 S. W. 1053; Speckman v. Meyer, 187 Ky. 689, 220 S. W. 529; Ramey v. Ramey, 195 Ky. 677, 243 S. W. 934.
In support of their contrary contention, counsel for appellee reljr upon Board of Councilmen v. Capitol Hotel Co., 188 Ky. 754, 224 S. W. 197, and cases therein cited, but there is an essential difference between these two distinct lines of cases, based upon whether the restriction, as here, is upon the power of sale, or, as there, is upon the use to which the property is to be devoted, which renders the cases of one class inapplicable in the other except as to general rules of construction.
The effort in both instances is of course to ascertain the intention of the parties, since it is always recognized as controlling, and the distinction that runs through all these cases is, that a restriction upon the right of alienation is treated as prima facie a condition attached to the title, whereas a restriction upon use is considered as presumably a covenant running with the land. In our judgment this distinction is sound, but whatever its merit, it has been too long and consistently observed by this court to admit of departure therefrom, and, applying it here, we must hold that this ■ restriction upon the power of
It is equally well settled by the above cases that the deed executed by Mrs. Shepherd to Harkins, although a violation of this condition, rendered the deed to her voidable and not void, and that it is valid until avoided by the grantor or his heirs, and unless this is done within a reasonable time. Convinced that appellants, by their pleadings affirmatively established the fact that Ben Hale not only did not declare a forfeiture of the deed to Mrs. Shepherd within a reasonable time because of the viola ■ tion by her of the restriction upon her right of alienation, but recognized it as valid for more than 16 years thereafter and until the filing of this action, we are clearly of the opinion that he is not now in equity and good conscience entitled, as is the attempt here, to annul appellant’s title acquired upon the faith of the record as it appeared when it acquired same, and especially without making its predecessors in title subsequent to Mrs. Shepherd parties to the action.
Plaintiffs aver that immediately after the execution of the deed by Mrs. Shepherd to Harkins, Ben Hale declared a forfeiture, and being in possession of the land under the reservation of the right to use and cultivate same in the deed to Mrs. Shepherd, he has held same adversely since that time. But it is also alleged that in 1907 he repurchased the land from Mrs. Shepherd for $1,718.00, of which $1,000.00 was paid to her in cash; that her husband not having joined with her in that deed, it was void, and that subsequently he brought an action against her and her husband to recover the $1,000.00 paid her for the land and to have a lien declared thereupon to secure same; that in that action a judgment was procured and the land sold in satisfaction of this lien, at which sale his present wife, Josie Hale, became the purchaser.
That this whole proceeding was a recognition of the validity of his deed to Mrs. Shepherd, notwithstanding her violation of the condition therein, cannot be questioned, and being wholly inconsistent with his allegation that he had declared a forfeiture immediately upon her conveyance of the minerals to Harkins, and thereafter held the land adversely to Harkins and his grantees, renders these allegations wholly ineffective.
Judgment affirmed.
