| Ind. | May 15, 1862
This was an action by Hunt against Beeson to recover possession of lot number 4, in square number 1, in the town of Huntsville. Trial; finding and judgment for the defendant.
It appears that in 1834 the plaintiff laid out the town of Huntsville, upon his own land, and caused the plat thereof to be duly recorded. The lot in question was marked on the recorded plat as follows: “James Pugh’s tan-yard lot.” In the notes and references to the plat, and recorded with it, is the following explanatory statement: “Lot Ho. 4, in square hTo. 1, is donated by Miles Hunt, Jr., to James Pugh, for the purpose of erecting a tan-yard on it.” It further appears that Pugh erected a tan-yard upon the lot, and that it has been used for that purpose from 1834, by Pugh and those claiming under him, up to the time that it came into the possession of the defendant, two or three years before the trial, since which time it has been idle and not stocked or used as a tan-yard, though the tan-yard house and vats are still standing. “Beeson sometimes talks of starting or stocking the yard, and at others he talks as though he would not.” When the donation was made and Pugh took possession, the lot was vacant and unimproved. The improvements have been made by Pugh and those claiming under him. One of the intermediate proprietors put a house on the lot for a shoe shop and grocery, worth 150 dollars, and additional work has been done. It does not appear that the'house thus built has been used as a grocery or shoe shop. The defendant claims by purchase under Pugh.
An act in force at the time the plat in question was recorded, provided that every donation or grant to the public or any individual, See., marked or noted as such on the plat of the town, shall be considered to all intents and purposes as a general warranty to the said donee or donees, grantee or
We are of opinion, as was found by the Court below, that the donation thus made by the proprietor, and accepted by Pugh, operated as a grant to the latter of fhe lot in question, with condition subsequent, he having a reasonable time in which to comply with the condition. On this point see Hayden v. Stoughton, 5 Pick. 528.
It is insisted, however, that the condition is broken whenever the lot ceases to be used as a tan-yard lot. In other words, that the lot must be used for a tan-yard for all time to come, and whenever it ceases to be so used, it reverts-to tdonor or his heirs. We are not of that opinion. “Conditions subsequent are not favored in law, and are construed strictly, because they tend to destroy estates; and the vigorous exaction of them is a species of summum jus, and in many cases hardly reconcilable with conscience.” 4 Kent 130. In Merrifield v. Cobleigh. 4 Cush. 178, 184, it was said by the Court, in speaking of a condition subsequent, “ such a condition, when relied upon to work a forfeiture, is to be construed with great strictness; the' demandant shall have his exact legal right and no more.”
This rule of construction might authorize the Courts in holding that the condition was forfeited, and the estate made absolute as soon as the tan-yard was erected on the lot, whether it was ever appropriated to the use of a tan-yard or not. But this is not necessary to be decided in the present case. Here it appears that the lot came into the possession of the defendant in 1858. It also appears that it was used for a tan-yard by Pugh and those claiming under him from 1834 up to the time when it came into the defendant’s possession. Thus for twenty-four years was the property used for the purposes of a tan-yard. It may reasonably be supposed that the donor, having in view the future growth, business and pros
But it is insisted, that as the Court found that Pugh was, by the donation, invested with a title in fee simple upon condition, the judgment should be reversed. It is insisted that Pugh took only a life estate. "We need not determine this question. There was no proof that Pugh was dead, and if the plaintiff sought to recover upon the ground that the estate terminated with the life of Pugh, the proof devolved upon him. "We see nothing in the record that precludes the plaintiff from bringing his suit whenever the life estate shall have terminated, if a life estate only passed t.o Pugh.
The finding for the defendant is fully sustained by the evidence, hence the judgment must be affirmed.
The judgment below is affirmed, with costs.