Avery v. Consumers' Power Co.

• Decision Date: 06 March 1934
• Docket Number: No. 65.,65.
• Citation: 253 N.W. 189,265 Mich. 696
• Parties: AVERY et al. v. CONSUMERS' POWER CO.
• Court: Michigan Supreme Court

265 Mich. 696

253 N.W. 189

AVERY et al.

v.CONSUMERS' POWER CO.

No. 65.

Supreme Court of Michigan.

March 6, 1934.

Appeal from Circuit Court, Jackson County; John Simpson, Judge.

Action by Vinnie Avery and another against the Consumers' Power Company. From an adverse judgment, plaintiffs appeal.

Affirmed.

Argued before the Entire Bench.

Frank L. Blackman, of Jackson, for appellants.

Bisbee, McKone, Wilson & King, of Jackson, for appellee.

BUTZEL, Justice.

In 1901 Abraham Avery and Frances A. Avery, his wife, deeded to William A. Boland a strip of land two rods in width from their farm in Jackson county, Mich.; the deed containing the following condition: ‘In the event of the abandonment of this strip for electric car line for a period of two years, same shall revert to the grantors, their heirs and assigns.’ Shortly thereafter an electric railroad was constructed and maintained until 1929, when it ceased operating.

In 1908, Frances A. Avery, as survivor of herself and Abraham Avery, conveyed the entire farm to Mary Vinnie Avery and Elmer K. Avery, two of her children; the deed containing the following exception: ‘Excepting the rights of the Jackson and Battle Creek Traction Company in their right of way across said land, or the successors of said company.’ It also contained the further provision: ‘This contract is to take full force and effect only upon the decease of the said first party.’

Frances A. Avery died February 8, 1926, leaving as heirs May Vinnie Avery and Elmer K. Avery, the plaintiffs, and Eli A. Avery. In the probate proceedings, the farm thus deeded to the plaintiff was not listed among the assets of the estate. Upon the death of Mrs. Avery the deed to Vinnie Avery and Elmer K. Avery was recorded, and the latter, claiming under said deed, have brought ejectment proceedings against the Consumers' Power Company, which acquired the above-mentioned strip of land by mesne conveyances, after it had ceased to be used for an electric car line.

The clause in the first deed providing for a reverter in the event of the abandonment of the electric car line for a period of two years has been construed in Rhines v. Consumers' Power Co., 259 Mich. 236, 242 N. W. 898, to be a condition subsequent. In the instant case, the trial court held that plaintiffs could not maintain the action because they had never held title to the strip of property, for in the deed by virtue of which they assert their claim, frances A. Avery expressly excepted the right of way of the railroad; further, that they could not claim for breach of the condition subsequent because they were not claiming as heirs of Frances A. Avery and Abraham Avery, and at the time their deed took effect, on February 8, 1926, the railroad company had not yet abandoned the right of way. For these reasons a verdict was directed for defendant.

When Frances A. Avery, by her deed to the plaintiffs, attempted to convey to them the right of reverter before breach, that right was destroyed. A condition subsequent annexed to real estate can be reserved only to the grantor and his or her heirs. In County of Oakland v. Mack, 243 Mich. 279, 220 N. W. 801, 804, the question is carefully discussed; the court in its opinion quoting with approval from the syllabus in Rice v. Railroad Co., 12 Allen (Mass.) 141, 90 Am. Dec. 141, as follows: ‘The right or possibility of reverter which belongs to a grantor of land on condition subsequent is extinguished by a conveyance thereof by deed to a third person before entry for breach of condition; even though such conveyance be to a son of the grantor, who upon the grantor's death becomes his heir.’

It has been settled beyond any question in this jurisdiction that a deed attempting to convey...