Ellis v. Elkhart Car Works Co.

• Decision Date: 18 June 1884
• Docket Number: 11,283
• Parties: Ellis et al. v. The Elkhart Car Works Company et al
• Court: Indiana Supreme Court

97 Ind. 247

Ellis et al. v. The Elkhart Car Works Company et al

No. 11,283

Supreme Court of Indiana

June 18, 1884

Petition for a Rehearing Overruled Nov. 12, 1884.

From the Elkhart Circuit Court.

H. D Wilson and W. J. Davis, for appellants.

J. M Vanfleet, for appellees.

OPINION

Elliott C. J.

In the deed set forth in the first paragraph of the appellants' complaint is written the following: "This deed is executed on condition that if the grantee, her grantees or assignees shall at any time within three years from this date fail, neglect, or refuse to use said real estate for the manufacture of cars for a term of six consecutive months at a time, said real estate shall revert to said grantors." It is alleged that the appellants were the grantors, and that no consideration was paid for the land; that the defendant failed to use the land for the purpose specified for the period intervening between December 1st, 1882, and July 11th, 1883; that on the day last named the appellants "re-entered upon said premises and then and there demanded of said company a reconveyance to them of said property and a delivery of possession, but the defendant refused to convey or deliver possession."

Two objections are urged against this pleading: First. That it does not aver a demand for performance. Second. That it does not aver that the appellants entered for a breach of the condition. Of these in their order.

The decisions of this court establish the rule that there must be a demand of performance by the party entitled to insist upon a forfeiture of the estate. Cory v. Cory, 86 Ind. 567; Schuff v. Ransom, 79 Ind. 458; Risley v. McNiece, 71 Ind. 434; Lindsey v. Lindsey, 45 Ind. 552. This, however, is a general rule, to which there must be exceptions, and a case such as this constitutes an exception. The grantors in a deed like the one before us could not demand performance until six months had elapsed in which there was a failure to use the property for the purpose specified, and when that time had elapsed the breach of the condition would be complete without a demand. If a demand of performance should be deemed essential, then the result would be an extension of time beyond that expressly provided in the deed, and this would, in effect, add a new provision to the instrument. The grantors had no right to complain that there was a failure to perform until after the full expiration of the six months specified, and when that period had elapsed the right to insist upon a forfeiture became perfect by the terms of the deed. Nothing was needed to complete the right to enter for a breach. It is legally impossible to conceive it necessary that there should be a demand for performance, for none could be made until after the lapse of the time designated, and then performance according to the contract would be impossible. The case in hand is unlike those in which there is no specification of the act to be done, and no fixed limitation as to the time of performance; and in our opinion it belongs to the class where a demand for performance is not essential to a right to enter for breach of condition. 1 Lead. Cases Real Prop. 145; 1 Smith Lead. Cases (7th ed.), top p. 124.

Where no definite act is fixed, and no precise time is limited for the performance, then a demand may be necessary; but in the present case the provision is that if the grantee shall fail, neglect or refuse to perform the act specified within a fixed and limited time, the property shall revert. The act is designated, and the time for performance is limited and made of the essence of the contract; there is nothing, therefore, to be determined by a demand; all is determined by the lapse of time and a failure to perform, so that a demand of performance could subserve no useful purpose.

The rule in this State is that a demand for possession is equivalent to an entry. Cory v. Cory, supra; Indianapolis, etc., R. W. Co. v. Hood, 66 Ind. 580; Clark v. Holton, 57 Ind. 564. It is sufficient to aver a demand, but the demand must be such as the law requires. This brings us to the second objection urged against the pleading, for, if the demand is not such as the law requires of the plaintiff, it can not take the place of an entry; on the contrary, it goes for nothing. It is not enough to aver a demand; it must also be shown to be such as the law deems sufficient.

If it be true, as the appellee contends, that the complaint must show that the entry was for breach of condition, then it must follow that the pleading should show that the demand for possession was made upon the ground that there was a breach of condition. A demand sufficient to take the place of an actual entry must be placed upon the same grounds as are necessary to make an entry effective. We have, however, not been able to find any case sustaining the contention of the appellee, that it must be shown that the entry was for breach of condition; on the contrary, it is held that an entry is sufficient without a declaration that it is for a breach of condition. The question was well discussed in Bowen v. Bowen, 18 Conn. 535, and it was held that it was not necessary to declare that the claim or entry was for a breach of condition, and, in the course of the opinion, it was said: "It does not seem to be necessary now, that the party should...