22 S.D. 65 | S.D. | 1908
As against appellant, who asserts ownership in fee, respondent prevailed in this action to quiet her title to 16 lots in block 28 of the First subdivision of the Upper Rapid City town site, and the questions of law presented are determinable from facts and circumstances briefly stated in chronological order as follows: Both parties claim through the Upper Rapid City Company as a common source of title, and respondent and William Duff Haynie, her immediate grantor, have been in possession continuously since the 26th day of September, 1891, when the above-named corporation, on receipt of $1,200 as the purchase price agreed upon, conveyed to William Duff Haynie by a grant, bargain, and sale deed containing full covenants of warranty, and also' the following repugnant provision, which is immediately preceded by the description of the property; “Upon the express condition that this deed shall take effect and be operative only upon condition that the party of the second part shall build or cause to be built upon the aforesaid premises a dwelling house to cost not less than $1,000, and shall take up his residence upon the said premises within one year from the time when the said company’s motor line shall be completed, and the cars running or operated regularly thereon, between Rapid City and the above-described premises.” Pursuant to this deed William Duff Haynie and his family occupied a dwelling house situated on the premises and cultivated the land until about the 4th
It is conceded, and the court found, that since the execution of the deed by the Upper Rapid City Company to William Duff Hay-nie nothing has been done by either party to that instrument, or at all, toward complying with its .condition, and the contention of counsel for appellant is that no title ever vested in the grantee. By the terms of the executed deed William Duff Haynie was entitled to go into immediate possession, and the time for complying with his obligation to build a house was dependent upon the construction and operation of a motor line from Rapid City to the premises. The condition is that “within one year from the time when said company’s motor line shall be completed and cars runnihg or operated regularly thereon between Rqpid City and the above-described premises” the grantee shall build thereon and occitpy a house to cost not less than $1,000. Assuming that it was the intention of the parties that the deed should be wholly inoperative until the house was built and the residence established, the time for doing these things would not expire until one year after the motor line is completed and trains are running thereon regularly between Rapid City and the premises in controversy. Waldron v. Railway Company, 55 Mich. 420, 21 N. W. 870. Notwithstanding the recital
This deed, for which the entire consideration was paid in cash, fully warrants these’proprietary acts 'by the grantee, and the requirement that the house be built and occupied within a year after the motor line was completed and in operation is not a condition precedent. As the provision was reciprocal and for the exclusive benefit of the parties, the abandonment of the motor line at its inception resulted adversely to the grantee, and under all the facts and circumstances disclosed by the record it would be grossly inequitable to enforce a forfeiture in favor of the defaulting grantor or its subsequent judgment creditor, who is an entire stranger to the transaction. As the requirement to build had been dispensed with by the common grantor, for whose benefit it was created, and its estate in the premises wholly divested- by the unrecorded deed, there was nothing conveyed by the execution sale, and appellant took nothing by his subsequent deeds from A. W. Bangs and the Upper Rapid City Company. Roblin v. Palmer, 9 S. D. 36, 67 N. W. 949; Kohn v. Lapham, 13 S. D. 78, 82 N. W. 408.
Whether the building requirement is a condition or conven-ant, respondent and her grantor were long since discharged from its obligation by the failure to construct and operate the motor line; and the judgment appealed from is affirmed.