Fraley v. Wilkinson
| Decision Date | 29 June 1920 |
| Docket Number | 9756. |
| Parties | FRALEY ET AL. v. WILKINSON ET AL. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Mere nonperformance of a promise, although such promise is a part of the consideration for a deed, is not within itself either fraud or evidence of fraud. There must be either a specific averment that the contracting party made the promise with the secret intention of not performing it, or facts must be pleaded establishing such intent not to perform.
A "condition precedent" is one that must be performed before the estate can vest or be enlarged.
A "condition subsequent" operates upon estates already created and vested, and renders them liable to be defeated.
Courts are inclined to construe clauses in deeds as covenants rather than as conditions if the language employed is capable of construction as a covenant, and if it be doubtful whether the clause is intended as a condition or as a covenant, the doubt will be resolved in favor of construing the clause as a covenant and not as a condition.
Where there is doubt as to whether a condition is precedent or subsequent, courts lean to that construction rendering performance a condition subsequent.
The absence of a provision for forfeiture or reversion for failure to erect a building on the land conveyed, or perform some other executory promise in connection therewith, tends to refute an intention to make the performance a condition subsequent.
A recitation in a deed that it is made in consideration of a certain sum of money and the agreement of the grantee to do other things therein specified, such as construct a building on the land, etc., does not create an estate on condition.
Conditions subsequent are always construed strictly, and will not work a forfeiture unless clearly expressed in unequivocal terms, or necessarily implied.
The plaintiff's prayer for a judgment is only a matter of form, and is no part of the statement of the cause of action.
Under the Code of Civil Procedure in force in this state, a plaintiff is required to set forth the facts constituting a cause of action, and if he states facts showing that he is entitled to a remedy, either legal or equitable, his action will not be dismissed because he has misconceived the nature of his remedial rights and has asked for equitable relief when he should have asked for a legal remedy, or asked for the wrong equitable relief, or vice versa.
In suits for specific performance, the court may refuse to decree specific performance of the contract, but in lieu thereof award plaintiff compensation in damages.
Error from District Court, Carter County; W. F. Freeman, Judge.
Suit by Charles E. Fraley and wife against Leslie I. Wilkinson and another for cancellation of a deed. The petition was dismissed, and, Charles E. Fraley having died, the suit was revived in the name of William S. Fraley as his administrator, and plaintiffs bring error. Reversed and remanded on condition.
In suits for specific performance, the court may refuse to decree specific performance of the contract, but in lieu thereof award plaintiff compensation in damages.
Geo. A Ahern and I. R. Mason, both of Ardmore, for plaintiffs in error.
Cruce & Potter, of Ardmore, for defendants in error.
Charles E. Fraley and wife filed their petition in the district court, alleging that on May 19, 1915, they were the owners and in possession of a 53-foot lot in the city of Ardmore which they sold to the defendants in error for $3,646.60, paid, and the agreement to erect a brick building on the lot; that they conveyed said 53-foot lot to the defendants by deed duly executed, acknowledged, and delivered; that they also owned considerable other property adjoining said lot, and were interested in securing the erection of a brick building on the lot sold to defendants; that said property was all suitable for building sites for business houses; that the consideration of $3,646.60 stated in the deed, while paid, was not all the consideration; that there was another and further consideration for the execution and delivery of said deed, to wit, "the obligation, promise and agreement on the part of defendants to immediately construct and erect on said block of land a brick building," and "that had the defendants not promised and agreed to build the same, and had the same not been a part of the consideration, these plaintiffs would not have sold said block of land for the recited consideration therein." It is further alleged that defendants immediately upon the execution of the deed took possession of the 53-foot lot, and, although demanded by plaintiffs to construct the brick building as agreed, defendants, at first promising to do so in a short while, failed to erect said building, and after postponing same from time to time, giving one excuse after another, finally refused to erect the building, declaring they had a deed to the property and that it was theirs, and they did not intend to carry out their contract. Plaintiffs tendered defendants the $3,646.60 cash consideration, and demanded a reconveyance of the lot, which defendants refused. Plaintiffs offer to return the money, and pray for rescission and cancellation of the deed. The defendants' demurrer to the petition was sustained, and, as plaintiffs stood on the petition, the court rendered final judgment, dismissing the same. Charles E. Fraley died, and the suit was revived in the name of his administrator, and it is here on petition in error.
1. Mere nonperformance of a promise, although such promise is a part of the consideration for the deed, is not within itself either fraud or evidence of fraud. There must be either a specific averment that the contracting party made the promise with the secret intention of not performing it, or facts must be pleaded establishing such intent not to perform. Hayes v. Burkam, 51 Ind. 130; Patterson v. Wright, 64 Wis. 289, 25 N.W. 10; Fenwick v. Grimes, F. Cas. No. 4734; Cerny v. Paxton & Gallagher Co., 78 Neb. 134, 110 N.W. 882, 10 L. R. A. (N. S.) 640; Miller v. Sutliff, 241 Ill. 521, 89 N.E. 651, 24 L. R. A. (N. S.) 735; German National Bank v. Princeton State Bank, 128 Wis. 60, 107 N.W. 454, 6 L. R. A. (N. S.) 556, 8 Ann. Cas. 502; Blackburn v. Morrison., 29 Okl. 510, 118 P. 402, Ann. Cas. 1913A, 523; McLean v. Southwestern Casualty Ins. Co., 61 Okl. 79, 159 P. 660.
2. The alleged agreement to erect the building was neither a condition precedent nor a condition subsequent. A condition subsequent operates upon estates already created and vested, and renders them liable to be defeated; while a condition precedent is one that must be performed before the estate can vest or be enlarged. Courts are inclined to construe clauses in deeds as covenants, rather than as conditions, if the language employed is capable of construction as a covenant. If it be doubtful whether the clause is intended as a condition or a covenant, the doubt will be resolved in favor of construing the clause as a covenant, and not as a condition. Jones on Landlord and Tenant, § 487; Johnson v. Gorley, 52 Tex. 222. Of course, the erection of the building was not a condition precedent. The defendants paid the cash consideration, and the deed was delivered, and they went in possession. Where there is doubt as to whether a condition is precedent or subsequent, courts lean to that construction rendering performance a condition subsequent. Ross v. Sanderson, 162 P. 709, L. R. A. 1917C, 879; Front Street M. & O. R. R. Co. v. Butler, 50 Cal. 574; Tipton v. Feitner, 20 N.Y. 423, 433; Antonelle v. Kennedy & Shaw Lumber Co., 140 Cal. 309, 73 P. 966.
The absence of a provision for forfeiture or reversion for failure to erect the building tends to refute an intention to make the erection of the building a condition subsequent. A recitation in a deed that it is made in consideration of a certain sum of money and the agreement of the grantee to do other things therein specified, that is, construct a building on the land, does not create an estate upon condition. The language used must be so clear as to leave no doubt that the grantor intended that an estate upon condition subsequent should be created. Conditions subsequent are always construed strictly, and will not work a forfeiture unless clearly expressed in unequivocal terms or necessarily implied. Hawley v. Kafitz, 148 Cal. 393, 83 P. 248, 3 L. R A. (N. S.) 741, 113 Am. St. Rep. 282; Board of Education v. Brophy (N. J. Ch.) 106 A. 32. It is absolutely clear that the erection of the building was neither a condition...
To continue reading
Request your trial