O'Brien v. Wagner

94 Mo. 93 | Mo. | 1887

Black, J.

The plaintiffs are the heirs of Eliza Fitzwilliam, and as such prosecute this action of ejectment. She conveyed the lot in question to Chamberlain by deed dated the first of June, 1864. The deed is expressed to be in consideration of eighty dollars, and the covenants therein recited. The deed, among other things, states, “said party of the second part hereby covenants with said party of the first part, under penalty of forfeiture of the estate hereby conveyed, that, previous to the first day of July, 1866, he shall erect on said lot of ground a substantial dwelling-house.” The evidence shows that Chamberlain did not pay the eighty-dollar consideration, and when it was demanded, he said he did not want the property. He did not build or offer to' build the house. Mrs. Fitzwilliam, at the date of the deed, had this and four or five other lots enclosed by a fence, and she continued in possession of the lot until her death, in 1883. After her death, Chamberlain made a quit-claim deed to defendant’s wife, and the defendant then took possession.

It was the evident intention of the parties to the deed to Chamberlain that a failure to build the house within the time specified, should defeat the grant. The deed is clearly upon condition subsequent. The failure alone to build the house would not divest the grantee of the title. The grantor in a deed upon condition may waive the forfeiture, and to make good the forfeiture he must enter for condition broken; or he or his heirs may maintain ejectment. Ellis v. Kyger, 90 Mo. 606. Here the grantor held possession from the date of the deed, 1864, to 1883. The breach of the condition occurred in 1866. If the grantor had refused to put the grantee in possession there would be ground for the claim now made that he had been prevented from performing the condition, and thus avoid a forfeiture. . But the circumstances all tend to show that Chamberlain did not want possession. The court, sitting as a jury, by the instructions given, found that Mrs:1 Eitzwilliam did not waive the condition, or prevent the performance of it. Mr. Washburn says, if the grantor is himself in possession of the premises when the breach happens, the estate revests in him, at once, without any formal act on his part, and he will be presumed,- after the breach, to hold for the purpose of enforcing the forfeiture. 2 Wash. Real Prop. [5 Ed.] 18. Of course, this presumption is one of fact, and may be overcome by evidence, and the evidence may consist of the acts, declarations of the party in possession, and the like. The evidence tends to show, and the court found, that Mrs. Eitzwilliam claimed the property as her own.

The appeal is without any .merit and the judgment is affirmed.

Ray, J., absent; the other judges concur.