116 Ind. 424 | Ind. | 1888
This was an action by Rebecca Royal against .the Aultman & Taylor Company, of the State of Ohio, and Perry Glascock, sheriff of Fountain county, to enjoin the defendants from selling certain real estate alleged to belong to the plaintiff.
It appears from the complaint that, on the 11th day of November, 1881, the plaintiff was the owner of a tract of land in Fountain county, and that she conveyed it by warranty deed to George ~W. Hyatt on the date above mentioned, subject to .certain conditionsj which are recited in the deed. The
It is averred that while Hyatt so held the title, the Aultman & Taylor Company recovered a judgment against him, upon which an execution had been issued and placed in the hands of Glascock, as sheriff of Fountain county. It was also averred that the sheriff had levied upon and advertised the land conveyed to Hyatt by the plaintiff, upon the conditions above mentioned, for sale, and that the sale was fixed for the 4th day of April, 1885.
The complaint charged that Hyatt had wholly failed to make any payments as required by the terms of the deed, and that the plaintiff had demanded of him, “ more than once a year each year after the date of said deed,” that he make payment of the money due her on account of the provisions written in the deed.
It is averred further that the plaintiff, on the 16th day of March, 1885, executed and placed upon record a written revocation of the deed to Hyatt, agreeable to the stipulations therein written. A copy of the deed, and the subsequent revocation thereof, are made part of the complaint.
The only question involved in the present appeal relates to the propriety of the ruling of the court below in sustaining a demurrer to the complaint. It is conceded that the deed created in the grantee an estate upon condition subsequent,
In short, the argument is that there could be no forfeiture without making a demand of payment on the day each payment fell due, and that the right of revocation was limited by the word “ then,” so that if it was not exercised immediately after the third consecutive demand and refusal, the right was forever waived. We do not concur in this view.
It is quite true that it may be regarded as in some sense a general rule that a forfeiture can not be insisted upon unless the party entitled to take advantage of the condition first demands performance of that upon which the continuance of the estate depends. Lindsey v. Lindsey, 45 Ind. 552; Cory v. Cory, 86 Ind. 567; Ellis v. Elkhart Car Works Co., 97 Ind. 247.
This rule applies in the class of cases where the performance of the condition depends upon something to be done by the party entitled to insist upon performance, or upon his election or pleasure, or upon facts or circumstances peculiarly .within his personal knowledge. In other words, where it in any way depends on the pleasure of the party for whose benefit the condition is to be performed, in what manner or at what time a thing shall be done, or whether it shall be done at all, the party to be benefited must request performance. Whitton v. Whitton, 38 N. H. 127 (75 Am. Doc. 163).
While a condition may be waived by a party who 'has the right to avail himself of it, mere indulgence or silent acquiescence in the failure to perform is never construed into a waiver, unless some element of estoppel can be invoked. Carbon Block Coal Co. v. Murphy, 101 Ind. 115, and cases cited.
It is apparent that the inducement or consideration upon which the deed in the present case was made, was the agreement of Hyatt to pay the grantor a specified sum of money annually during the period of her natural life.
The estate of the grantee was dependent upon the condition that he pay a certain sum on a fixed date each year, and it was stipulated that in the event of failure for three consecutive years, the conveyance might be revoked, and the estate revested in the grantor in a specified manner. This agreement was neither unreasonable nor opposed to public policy, nor was it repugnant to the estate created. The parties had, therefore, the right to make it. It was written in the deed, which was presumably in the grantee’s possession. It was not necessary, therefore, that there should have been notice, or a demand for payment, in order to apprise the grantee of the thing to be done, or of the time when it was to be done. If there was a waiver of performance, by express agreement, or if the plaintiff is in any way estopped to avail herself of the forfeiture, the facts must be made to appear by answer.
The judgment of the Aultman & Taylor Company was a
The complaint stated facts sufficient to entitle the plaintiff to relief.
The judgment is reversed, with costs.