81 Ind. App. 641 | Ind. Ct. App. | 1924
Complaint by appellee as trustee in bankruptcy of the Matthewson Opera House Association, hereinafter referred to as the association, or bankrupt to quiet title to certain real estate. Appellants filed separate demurrers to the complaint, which being overruled, appellants Ralston and Ralston filed answer in two paragraphs, the first being a general denial. The second paragraph alleged that Charles C. Matthew-son, being the owner of the real estate in question, conveyed the same by warranty deed in 1901 to said association. Said deed is set out in the answer, and contains the recital that: “The consideration of this deed is that said grantor desiring to express his good feeling for the town which has always been his home and cause to be erected therein a building which shall bear his family name and be an ornament to fill a long felt want on the part of the citizens of said town, to benefit it and to encourage and strengthen public spirit and. enterprise, does make this conveyance upon the following conditions, viz.: That said grantee shall erect on said lot a building which with its furnishings and expenses incident will cost not less than ten thousand dollars to be forever known as the ‘Matthewson Opera House’ the second floor thereof to be used as an opera
It is also alleged that the association accepted said
Appellant Taylor also filed an answer in two paragraphs, the first being a general denial. The second paragraph was, in substance, the same as the second paragraph of answer filed by Ralston and Ralston, ex
Demurrers being sustained to the second paragraph of each of said answers, the answers of general denial having been withdrawn, appellants excepted, and, refusing to plead further, judgment was rendered against them quieting appellee’s title in fee simple to said real estate and forever cutting off and barring any and all claims of appellants in and to said real estate.
The errors assigned relate to the action of the court in overruling the demurrers to the complaint and in sustaining the demurrers to the second paragraphs of the several answers.
Appellants’ first contention is that a trustee in bankruptcy takes the same title to the real estate of the bankrupt as was held by the bankrupt and that such trustee has no authority to maintain a suit to quiet title to the real estate so held by him.
The facts as alleged in the complaint disclose that said association was, on petition of appellant Taylor, adjuged a bankrupt, that appellee, after qualifying as trustee, was given leave to file and maintain an action to quiet title to the real estate in controversy, and that the petition of appellant Taylor, filed in the bankrupt court, asking that the trustee be ordered to sell the real estate at once, was dismissed.
It is the law that a trustee in bankruptcy takes the same title to the real estate of the bankrupt as was held by the latter at the time of the adjudication of bankruptcy. It is the duty of the trustee to reduce the bankrupt estate to money in order to pay the claims of the estate, and where there are conflicting or adverse claims to the real estate formerly held by the bankrupt, the trustee may, especially when leave has been given by court, maintain an action to
Appellants insist that the conveyance of the real estate to the association was made in consideration of the erection of the opera house thereon as provided in the deed; that the provisions requiring the grantee to erect and maintain the building for the purposes named in the deed were conditions subsequent and that the association of which appellee is trustee having failed for a period of more than six months after notice to comply with the conditions named in the deed, appellee is not entitled to a decree quieting his title to the property and thus cut off the right of appellants Ralston and Ralston to re-enter upon said real estate under the reverter clause of the deed.
In this connection, appellee insists that the provisions of the deed are such as to create a doubt as to whether the parties intended them to be conditions subsequent, having the effect, in case of a breach, to defeat an estate already vested; that such conditions are not favored and, in doubtful cases, the court should construe them as covenants rather than conditions. Sheets v. Vandalia R. Co. (1920), 74 Ind. App. 597; Brady v. Gregory (1912), 49 Ind. App. 355, and Sumner v. Darnell (1891), 128 Ind. 38, 13 L. R. A. 173, are cited by the appellee in support of this contention. In determining the question whether the estate granted is one upon condition subsequent, the court will seek to enforce the intention of the parties, as the same may be gathered from the instrument and the existing facts. Cleveland, etc., R. Co. v. Coburn (1883), 91 Ind. 557. But where the intention to create such an estate is clear and the conditions are not opposed to public policy, courts will give effect to and enforce them. Latham v. Illinois Cent. R. Co. (1921), 253 Ill. 93, 97 N. E. 254.
In the instant case, it was not the intention of the parties that the erection of the building on the real estate and its maintenance during the lifetime of the grantor, however long that might be, were to be deemed a compliance with the conditions. Not only was the building to be erected and maintained for the purpose named, but it was to be “forever known as the ‘Matthewson Opera House’ the second floor thereof to be used as an opera house.” If such building was ever wholly or partially destroyed by fire or storm, it was to be rebuilt, and it was provided that no intoxicating liquors should ever be sold in such building or on the real estate so conveyed. The deed specifically provided that if, at any twne after the death of the
“Where the deed contains a stipulation that upon the failure to perform a certain provision or provisions therein contained, the deed shall become void or the estate forfeited, or if other language is used clearly indicating that the estate granted shall revest in the grantor upon a breach of certain provisions of the deed,
In Jeffersonville, etc., R. Co. v. Barbour (1883), 89 Ind. 375, cited by appellee, certain real estate was conveyed to the State for the use and purpose of depot grounds for a certain railroad. The deed in that case provided that: “In case the State of Indiana shall fail to erect buildings and occupy said ground for the use and purpose above mentioned, then and in that case, the above specified ground shall revert back to the donors.” The railroad for whose use said deed was made took possession of the real estate and erected a depot thereon and maintained and used such building for depot purposes for more than thirty years when it erected a depot on different grounds and ceased to use the land mentioned in the deed for that purpose. It is to be observed that the railroad in that case did erect and occupy the building for the purpose mentioned in the deed. That was a substantial compliance with the condition of the deed. In passing upon this question, the court, on page 378, said: “Had the grantors intended that the lot should be occupied by the railroad for all time to come for depot purposes, words suitable to express such intention would have been employed. General rules of interpretation require a deed to be construed most strongly against the grantor. Since no time was fixed for the occupancy of the lot to continue for depot purposes, we think that the parties must have intended it should be for a reasonable time. * * * In determining whether a condition subsequent in a
In the instant case, the grantee was to do more than erect the building. The building was to be “forever known as the Matthewson Opera House”, and it was the evident intention of the parties that the second floor was to be forever used and maintained as an opera house, and if destroyed by fire or storm, to be rebuilt with the provision that on failure to do so, the land should, if such failure continued after six months’ notice, revert. This is not a case where the grantor or his heirs are seeking to quiet their title to the real estate because of the failure of the grantee to comply with the conditions subsequent. If appellants were asking affirmative relief, it would be necessary for them to show a re-entry or its equivalent. Preston v. Bosworth (1899), 153 Ind. 458, 74 Am. St. 313. But, where the grantee has failed to comply with the conditions in his deed, the grantor or his heirs may defend an action by the grantee to quiet his title, without a re-entry.
In Ellis v. Elkhart Car Works Co. (1884), 97 Ind. 247, the deed provided that if the grantee should at any time within three years fail to use the real estate for a certain purpose, for a term of six consecutive months at a time, the same should revert. The complaint by the grantor alleged a breach and that the defendant on demand refused to deliver possession. It
In construing the provisions of a deed, a liberal construction will be adopted in favor of the grantee and a strict one as against a grantor claiming a right to forfeit the estate. A substantial compliance with the conditions of the deed is all that is required. But, in construing this deed, we must not lose sight of the fact that the conditions named in the deed formed the only consideration for the conveyance; that the building was to be “forever” known as “the Matthewson Opera House”, thus bearing the family name of the grantor; that the second story was to be set off and used as an opera house; that in event the building was destroyed, in whole or in part, it was to be rebuilt and that no intoxicating liquors were ever to be sold in the building or on the lot, and that, by the express language of the deed, these provisions are designated as the “conditions” which constituted the consideration for the conveyance.
The judgment is affirmed as to appellant Taylor, and reversed as to the appellants Ralston and Ralston, with directions to overrule the demurrer to the second paragraph of their answer.