Sherill v. Sherill
| Decision Date | 17 April 1924 |
| Docket Number | 8 Div. 582. |
| Parties | SHERILL ET UX. v. SHERILL ET AL. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Franklin County; Chas. P. Almon, Judge.
Bill in equity by J. W. Sherill and wife, M. A. Sherill, against S O. Sherill and wife, M. A. Sherill, and J. H. McIntosh. From a decree denying relief, complainants appeal. Reversed and rendered.
B. H Sargent, of Russellville, for appellants.
Henry D. Jones, of Russellville, for appellees.
On the undisputed evidence in this case we think and hold that complainants were entitled to the relief prayed.
The estate granted by Mary J. Swinney and her children to the respondents S. O. and M. A. Sherill, though a vested estate was expressly subjected to forfeiture in case the grantees should "fail to carry out any part" of the obligation undertaken by them, viz. the support and care of Mrs. Swinney during the remainder of her life. The estate was therefore one upon condition subsequent.
Such an estate is not divested from the grantee merely by the grantee's breach of the condition, but continues until "the grantor or his heirs take advantage of the breach of the condition, and make an entry or claim in order to avoid the estate." 21 Corp. Jur. 930, § 41, and cases cited under note 81. An estate upon condition subsequent has, until defeated by breach and entry, the same qualities and incidents as absolute estates. Memphis, etc., R. Co. v. Neighbors, 51 Miss. 412; Warner v. Bennett, 31 Conn. 468; 21 Corp. Jur. 930, § 39. But if they are conveyed or devised they pass subject to the condition. Brown v. State, 5 Colo. 496; Memphis, etc., R. Co. v. Neighbors, supra; 21 Corp. Jur. 930, § 39. This last proposition is of course elementary, since a grantor can convey no better title than he has, and no condition would be worth the while, if the grantee could avoid its operation and effect by the simple expedient of alienation before he has breached the condition.
The case of First Nat. Bank v. McIntosh, 201 Ala. 649, 79 So. 121, L. R. A. 1918F, 353, is not different from the instant case in any material aspect. It was there held that the mortgagee of the conditional grantee was chargeable with constructive notice of the condition recited in the recorded deed to his mortgagor, and relief by cancellation was decreed against the vendee and his mortgagee, for the vendee's breach of the condition.
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United States v. Stricker
...with Alabama law, which provides that a breach of a condition subsequent merely renders a contract voidable. See Sherill v. Sherill, 99 So. 838, 839 (Ala. 1924); Baskett Lumber & Mfg. Co. v. Gravlee, 73 So. 291, 294-95 (Ala. Ct. App. 1916).B The state court approved the settlement on Septem......
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...that voids the agreement or a conveyance merely renders the contract voidable when that condition is fulfilled. Sherill v. Sherill, 211 Ala. 105, 99 So. 838 (1924) ; Baskett Lumber & Mfg. Co. v. Gravlee, 15 Ala. App. 359, 73 So. 291 (1916). See United States v. Stricker, 524 F.App’x 500, 50......
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... ... 442, ... 111 So. 221; Ballenger v. Ballenger, 208 Ala. 147, ... 94 So. 127; Bank of Hartford v. Buffalow, 217 Ala ... 583, 117 So. 183; Sherill v. Sherill, 211 Ala. 105, ... 99 So. 838; First Nat. Bank v. McIntosh, 201 Ala ... 649, 79 So. 121, L. R. A. 1918F, 353 ... The ... ...
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