Royal v. Aultman & Taylor Company
| Decision Date | 22 December 1888 |
| Docket Number | 13,118 |
| Citation | 19 N.E. 202,116 Ind. 424 |
| Parties | Royal v. The Aultman & Taylor Company et al |
| Court | Indiana Supreme Court |
From the Fountain Circuit Court.
The judgment is reversed, with costs.
J McCabe, E. F. McCabe and I. E. Schoonover, for appellant.
G. W McDonald, for appellees.
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 conditions, which are recited in the deed. The conditions were, in effect, that Hyatt should pay to the grantor the sum of fifty dollars on the 1st day of March of each year, for and during the term of her natural life. It was further stipulated that in case Hyatt thereafter failed for the period of three consecutive years to pay the sum of fifty dollars annually, then the grantor might revoke the conveyance by repaying the amount theretofore paid, and by executing and placing upon record in the recorder's office of Fountain county a written declaration revoking the deed. It was further recited in the deed that, upon the making and recording of such declaration, and the repayment of the money paid, the conveyance was to become null and void, and the title was to revert to the grantor.
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, and that the estate created was liable to be defeated upon the failure of Hyatt to pay according to the condition in the deed. The contention in support of the ruling below is, that inasmuch as by the stipulation in the deed the grantee was required to pay the grantor fifty dollars annually on the 1st day of March, and since it was further stipulated that in case he should fail for three consecutive years to make payment, "then the said Rebecca Royal may revoke this deed," it was therefore necessary in order to render the condition available, that the grantor should have gone upon the land on the 1st day of March each year, and demanded payment of the amount due, and that upon the third successive default, she must then have revoked the deed.
In short, the argument is that there could be no forfeiture without making a demand of payment on...
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