74 Ind. App. 597 | Ind. Ct. App. | 1920
This is a suit against appellee in ejectment and to quiet title to the north 150 feet of block 94 in the city of Indianapolis known as the Terre Haute depot property. The complaint is in four paragraphs, and alleges that on and prior to June, 1849, one William Sheets was the owner in fee simple and in possession of said real estate, and that he on said date conveyed the same by warranty deed to the Terre Haute and Richmond Railroad Company, predecessor of appellee; that the deed conveying said land provided that the same should be used and occupied exclusively for a depot and for no other purpose; that the depot building should be erected on the north part of said premises, and that upon the south part there should be left open a street of sufficient width for all business purposes connected with said road and adjoining property, which street should forever remain open for the use of the public. That part of said deed material for our consideration reads as follows:
“The said party of the first part (William Sheets) for and in consideration of the permanent*600 location of the depot of said railroad on block 94 in Indianapolis and of the sum of Twenty-Seven Hundred and'Fifty Dollars * * * has granted, bargained and sold, and by these presents does grant, bargain, sell, convey and confirm unto the said party of the second part and their successors in office forever, the following described piece of land: (Here follows description.) The property hereby conveyed to be used and occupied by said railroad company exclusively for a depot, and for no other purpose. The building to be erected on the north line of said conveyed premises upon the same along the south line thereof to be left open, a street of sufficient width for all business purposes connected with said road and adjoining property which is forever to remain open for the use of the public.
“To have and to hold the above described premises with all the rights, privileges and., appurtenances to the same belonging to the- said party of the second part and to their successors in office forever.”
It is alleged in the complaint that, while said deed recited a money consideration as having been received by said William Sheets, there was in fact no money or property paid or delivered by the grantee or anyone else as a consideration in whole or in part for said conveyance, but that said recital of a consideration of $2,750 was wholly false; that the grantee in said deed entered into immediate possession of said real estate in June, 1849, and built a railroad depot thereon in compliance with the requirements and conditions in said deed, and opened on the south part of said depot a teamway, which teamway remained open for use until sometime in April, 1915, when the appellee tore down and removed said depot building'and wholly discontinued the use-of said premises as a depot; that the elevated tracks of the Union Railway Company are now located on‘and over the whole of said land at a height of about sixteen feet above the level of the surrounding property, and which
It is further alleged that the conditions upon which said property was conveyed to appellee’s predecessor in title have been broken, and that the title to said property has reverted to and revested in appellants, who are the heirs at law of said William Sheets who died in 1872. A demurrer was sustained to each paragraph of the complaint, and judgment rendered against appellants that they take nothing.
Appellants contend that the deed from William Sheets conveyed said property upon condition that the grantee therein should permanently locate a depot and roadway thereon, and that said property be used exclusively for depot purposes, and said roadway forever maintained as such in connection with said depot. The questions for our consideration are: Does said deed contain a condition subsequent, and, if so, has there been a breach of such condition ?
The deed in Rawson v. Uxbridge, supra, was made in consideration of love and affection, “for burying place forever.” The court, in holding that it was not a grant on condition subsequent, said: “But ordinarily the failure of the consideration of a grant of land, or the nonfulfillment of the purpose for which a conveyance by deed is made, will not of itself defeat an estate. The reason for this distinction between the two classes of cases is, as stated by Coke, ‘that the state of the land is executed and the annuity executory.’ * * * We believe there is no authoritative sanction for the doctrine that a deed is to be construed as a grant on a condition subsequent solely for the reason that it contains a clause declaring the purpose for which it is intended the
Referring briefly to the Indiana cases cited by appellants in support of their contention, Hefner v. Yount (1847), 8 Blackf. 455; Throp v. Johnson (1852), 3 Ind. 343; Leach v. Leach (1853), 4 Ind. 628, 58 Am. Dec. 642; Doe v. Cassiday (1857), 9 Ind. 63; Leach v. Leach (1858), 10 Ind. 271; Petro v. Cassiday (1859), 13 Ind. 289; Boone v. Tipton (1860), 15 Ind. 279; Rush v. Rush (1872), 40 Ind. 83; Lindsey v. Lindsey (1874), 45 Ind. 552; Cory v. Cory (1882), 86 Ind. 567; Copeland v. Copeland (1883), 89 Ind. 29; Richter v. Richter (1887), 111 Ind. 456, 12 N. E. 698; Lindsay v. Glass (1889), 119 Ind. 301, 21 N. E. 897; Cree v. Sherfy (1894), 138 Ind. 354, 37 N. E. 787; Tomlinson v. Tomlinson (1904), 162 Ind. 530, 70 N. E. 881; and Huffman v Rickets (1916), 60 Ind. App. 526, 111 N. E. 322, are cases where the conveyances were made upon condition that the grantee should furnish support for the grantor during life. Such transactions are placed in a class by themselves and enforced without reference to the form or phraseology of the writing by which they are expressed, or whether by the strict letter of the law a forfeiture is expressly provided for, and are not applicable here.
In Hankins v. Lawrence (1846), 8 Blackf. 266, the title had- been obtained by condemnation. Evansville, etc., R. Co. v. Meeds (1858), 11 Ind. 273, was an action on a promissory note. Vaughn v. Stuzaker (1861), 16 Ind. 338, was a case where the title to the real estate had been conveyed for a public street. Thompson v. Thompson (1857), 9 Ind. 323, 68 Am. Dec. 638, was an
In Midland R. Co. v. Fisher (1890), 125 Ind. 19, 24 N. E. 756, 8 L. R. A. 604, 21 Am. St. 189, and Lake Erie, etc., R. Co. v. Priest (1892), 131 Ind. 413, 31 N. E. 77, the provisions of the deeds contained a covenant to fence. No question concerning a condition subsequent was presented to or considered by the court. In Preston v. Bosworth (1899), 153 Ind. 458, 55 N. E. 224, 74 Am. St. 313, there was a condition subsequent named in the deed, and it was expressly provided that “if said well shall be at any time abandoned, the title shall at once revert to and vest in the grantors as heretofore held by them; * * In Clark v. Holton (1877), 57 Ind. 564; Gadbury v. Ohio, etc., Gas Co. (1904), 162 Ind. 9, 67 N. E. 259, 62 L. R. A. 895, and in many of the cases cited involving support, the words of the deeds are not set out. In six of the cases cited, the deeds expressly provided for re-entry in case of breach. Scott v Stipe (1859), 12 Ind. 74, and Hunt v Beeson (1862), 18 Ind. 380, are not well reported cases and were wrongfully decided on the authority of Hayden v Stoughton (1827), 5 Pick. (Mass.) 528, in which case there were technical words of condition — a fact which
In the Hunt case, while the court held that the conveyance or donation operated as a grant upon condition subsequent, it also held that, after the property had been used twenty-four years for the purposes for which it was donated, a failure to longer use it, or its appropriation to other uses, would not work a forfeiture of the estate.
In Indianapolis, etc., R. Co. v. Hood (1879), 66 Ind. 580, real estate had been conveyed to the railroad company “for and in consideration of the permanent location and construction of the depot of said railroad” thereon. The railroad company took possession under such deed, erected a depot thereon and continued to use the same as a depot for a period of eighteen years, when it built another depot on different land, and ceased to use the land described in the deed for depot purposes. The court held that the railroad company took said lots upon the condition subsequent that it would permanently locate and construct its depot thereon, and that this condition was broken by the removal of the depot therefrom. On a casual reading it would seem as if this case was decisive of the case at bar, but, after having given it. careful consideration, we
In Sumner v. Darnell, supra, a conveyance was made to the commissioners of Wayne county in May, 1818, “ ‘in consideration of the seat of justice having been permanently established in the town of Centerville.’” A courthouse was erected on the property described in the deed in 1820 and was used by the county until 1873, when the county seat was removed to the city of Richmond, where a new courthouse was erected, and the real estate on which the old courthouse in Centerville had been located was sold by the commissioners. The court, after holding that there was not a condition subsequent,
Seventeen years’ maintenance of a public station— “until the exigencies of business, the convenience of the public and the welfare of the railroad demand its removal” — was held in Maryland, etc., R. Co. v. Silver (1909), 110 Md. 511, 73 Atl. 297, to constitute a fair compliance with a covenant to make and maintain a passenger and freight station on a specified lot of land conveyed to it for that purpose.
In Stansbery v. First M. E. Church (1916), 79 Ore. 155, 154 Pac. 887, it was held that where a deed contained a restriction that the land conveyed was to be used for “ The purpose of a parsonage, church, etc.,’ ” the consideration for such conveyance was that the grantee was to so use the land, and user in conformity
In Harris v. Shaw (1851), 13 Ill. 456, land was conveyed on condition that the county seat should be “permanently located upon it.” The location was made accordingly with that intent, but some years later the county seat was removed. The grantor sued to recover the land. The court said it was no part of the contract that the county seat should remain forever on the premises. The grantor must be presumed to have known that the legislature had the power to remove it at pleasure, and that he must be held to have had in view, at least, the probability of such a change when he made the deed.
The Supreme Court of the United States, in Newton v. Commissioners (1879), 100 U. S. 548, 25 L. Ed. 710, in discussing the words “permanently established,” said: “It will be observed that there is nothing said about the county seat remaining, or being kept, at Can-field forever, or for any specified time, or ‘permanently.’ At most, the stipulation is that it shall be considered as permanently established there when the conditions specified are fulfilled. * * * So the county seat was permanently established at Canfield when it' was placed there with the intention that it should remain
A case in point on this proposition is Texas, etc., R. Co. v. Marshall (1890), 136 U. S. 393, 10 Sup. Ct. 846, 34 L. Ed. 385, wherein relief in equity was sought by the city of Marshall, to enforce an agreement to permanently establish the eastern terminus of the company’s line of railroad at Marshall, and to construct and maintain there the main carworks and machine shops, in consideration of a large bonus given to the company by the city. The evidence showed the railroad company had in fact established the eastern terminus of its line at Marshall, and had located its shops there. The trial court found that the contract was duly executed by both párties. The terminus and shops remained at Marshall for eight years, when the terminus was changed to another place, and parts of the shops removed. The point of law involved was whether, in view of the proviso in the subscription agreement that the
Appellants cite Carlisle v. Terre Haute, etc., R. Co. (1855), 6 Ind. 316, as being a valuable precedent in this case. It appears from the briefs filed herein (although not alleged in the complaint) that the $2,750 mentioned in the deed from William Sheets was ma(le up of notes given to the Terre Haute and Richmond Railroad Company by various citizens of Indianapolis in consideration of said railroad erecting its depot upon the land now in controversy. The validity of one of these notes was involved in the Carlisle case. It appears that the note was made payable to the Terre Haute and Richmond Railroad Company when it commenced the construction of its depot on the Sheets lot. Subsequently the charter of the railroad was altered so that the line of the road was limited to the distance between Terre Haute and Indianapolis, and that part of the line from Indianapolis to Richmond was placed under a different corporation. The court there held that the corporation erecting the depot was a different corporation than the one to whom the note was given and that there could be no recovery. We fail to see how that case can aid appellants in this case. If the reasoning of the court in the Carlisle case be applied in this case we would be justified in holding that the corporation that took possession of the lot and erected the depot was a different corporation than the one named as grantee in the deed and therefore not bound by the provisions or conditions
Continuing the court, on page 864, said: “So, where the language of a clause in a deed indicates a purpose simply to define and regulaté the use which shall be made of real estate granted, and where it does not appear that such use is for the special benefit of the grantor and his heirs, it will not be construed as a condition subsequent.”
Appellee by its demurrer admits that there was no money consideration for the deed, and that the recital relative to the payment of the $2,750 is false. We then have a deed executed in consideration of the permanent location of the depot thereon, or, in other words, upon condition that such depot be permanently located upon such lot. But it does not follow that the appellee was bound to maintain its depot thereon forever. From a careful reading of the whole of the deed, we are. of the opinion that the intention of the parties thereto was that the grantee was to locate a permanent depot on the land conveyed, and, so long as such depot was maintained, there would be a roadway of sufficient width to accommodate the business connected with such depot and the adjoining property.
While holding that the conveyance was made upon condition that the grantee therein named should permanently locate its depot upon the land conveyed, we hold that the appellee and its predecessors by erecting and maintaining its depot on the land conveyed for a period of sixty-five years substantially complied with the conditions of the deed. The abandonment of the property for depot purposes forty-three years after the death of the grantor will not authorize his heirs to reenter upon the property. Such conveyance was undoubtedly made subject to the general exigencies of business and public interest, and the change, modification and growth of transportation routes as this may affect the requirements of the railway company’s business. Railway Co. v. Birnie (1894), 59 Ark. 66, 26 S. W. 528.
There having been a substantial compliance with the provisions of the deed, there was no error in sustaining the demurrer to the several paragraphs of complaint.
Judgment affirmed.
