153 Ind. 458 | Ind. | 1899
Suit by appellee to recover an estate, claimed to have been forfeited by appellants by reason of the breach of a condition subsequent. Demurrer to complaint overruled. Trial and judgment for appellee. Motion for a new trial overruled.
The facts pleaded in the complaint are these: On May 19, 1892, appellee owned certain land in Madison county. On that day he executed to appellants a warranty deed of the., land. His wife, who has since died, joined in the conveyance. The statutory form for a warranty deed was used. Following the description of the land, appears this condition: “This conveyance is made to the grantees to enable them to
A breach of the condition subsequent is pleaded. But a breach does not complete a forfeiture. A breach may be waived, and is not, therefore, self-operative to devest the grantee’s title. If not waived, a breach may be made the occasion of reentry and enforcement of forfeiture. A complaint must exhibit a complete right of action. Eor failure to allege reentry, or its equivalent (that reentry was prevented and that possession was demanded and refused), this complaint is deficient. Schuff v. Ransom, 79 Ind. 458; Cory v. Cory, 86 Ind. 567; Ellis v. Elkhart, etc., Co., 97 Ind. 247; Elkhart, etc., Co. v. Ellis, 113 Ind. 215; Manifold v. Jones, 117 Ind. 212.
As a new trial can not be had upon this complaint, it is unnecessary to consider the grounds of the motion.
Judgment reversed, with directions to sustain the demurrer to the complaint.