Bain v. Parker

• Citation: 90 S.W. 1000,77 Ark. 168
• Parties: BAIN v. PARKER
• Decision Date: 02 December 1905
• Court: Supreme Court of Arkansas

90 S.W. 1000

77 Ark. 168

BAIN v. PARKER

Supreme Court of Arkansas

December 2, 1905

Appeal from Ashley Chancery Court; MARCUS L. HAWKINS, Chancellor affirmed.

STATEMENT BY THE COURT

On the 2d day of December, 1898, D. L. Bain and wife executed a deed conveying to J. M. Parker, trustee, 240 acres of land in Ashley County. This deed was executed on a blank form, which recited that the grantors, in consideration of the payment of one dollar "and in further consideration of the building, equipping and putting in operation a line of railroad from a point on the Mississippi River in Chicot or Desha County to Hamburg, Ashley County, Arkansas, have granted, bargained, sold and conveyed, and by these presents do hereby sell and convey, unto the said J. M. Parker trustee, and unto his heirs and assigns forever," the lands described in the deed. This deed, with a number of other deeds executed by other parties for the same purpose was delivered to the Ashley County Bank to be held in escrow and delivered to the grantee when he had performed his part of the contract and build the road. The road was completed and afterwards on the 8th day of November, 1899, the deed was delivered to the vendee.

Afterwards Bain brought this action to cancel the deed on the ground that it contained a condition that the road must be completed on or before the first day of January, 1899, and that, as the road was not completed until seven or eight months later, the deed was void.

On the hearing there was testimony tending to show that the plaintiff at the time he executed the deed inserted therein immediately after the words Ashley County, Arkansas, in the printed form, the following words in writing, "to be completed by January 1, 1899." There was also testimony to the contrary, that no such words were in the deed, and after considering the evidence, the chancellor found for the defendant, and dismissed the complaint for want of equity.

The plaintiff appealed.

Judgment affirmed.

Robert E. Craig, for appellant.

The evidence shows a condition incorporated in the deed by interlineation, limiting the time of completing the road, and, the condition not being complied with, the deed should have been cancelled.

Geo. W. Norman, for appellee.

1. If such condition had been interlined, it was only a covenant. Where the language is doubtful, the courts will construe as a covenant, rather than a condition. 63 Ill. 204. Where the recital does not expressly and in terms declare a condition, and provides only for the performance of some act, or imposes a duty or burden upon the grantee, but does not stipulate for re-entry or forfeiture, it will be construed as a covenent. 15 Ill. 366; 39 Ga. 302; 46 Ga. 241.

2. If the alleged interlineation were a condition subsequent, the estate, having vested by virtue of the deed, was completed by performance of the condition. 35 N.H. 445; 50 Ark. 141; 12 Barb. (N. Y.) 440; 105 Ga. 517. Condition subsequent will be construed strictly against the grantor and liberally in favor of the grantee, when the condition is performed. 49 N.H. 322; 53 N.Y. 85; 62 N.Y. 592; 30 Am. Rep. 298. Where its performance is rendered impossible by the act of God, the grantee holds as if no condition had attached. 19 A. 443.

OPINION

RIDDICK, J., (after stating the facts.)

This is an appeal from the judgment of the chancery court of Ashley County refuse- to hold a deed void on account of the nonperformance of an alleged condition subsequent. The plaintiff alleged that the deed as executed contained a condition that made it void if a certain railroad from the Mississippi River to Hamburg, Arkansas, was not completed on or before the 1st day of January, 1899. The defendant denied that there ever was any such condition in the deed. If the deed contained the words "to be completed by January 1, 1899," which plaintiff says he interlined in the printed form, that part of the deed would read as follows: The grantors, in consideration of one dollar "and in further consideration of the building, equipping and putting in operation a line of railroad from a point on the Mississippi River in Chicot or Desha County to Hamburg, Ashley County, Arkansas, to be completed by January 1, 1899, have granted, bargained, sold and conveyed," etc.

The words in italics are those which plaintiff alleges that he interlined in the deed, and which he claimed were subsequently erased by some one to him unknown.

There are two questions presented: First, were these words "to be completed by January 1, 1899," in the deed when executed? Second, if so, do they, when taken in connection with the other provision of the deed, amount to a condition subsequent? The evidence bearing on the question as to whether the words referred to were in the deed is quite conflicting. But it is unnecessary for us to set this evidence out or to discuss it, for it is not shown that the grantee erased...