Hawkins v. Pepper

• Decision Date: 17 December 1895
• Citation: 23 S.E. 434,117 N.C. 407
• Court: North Carolina Supreme Court
• Parties: HAWKINS v. PEPPER et al.

23 S.E. 434

117 N.C. 407

HAWKINS

v.PEPPER et al.

Supreme Court of North Carolina.

Dec. 17, 1895.

Conveyance of Mineral Rights — Interpreta tion of Contract—Condition Subsequent —Forfeiture—Re-entry by Grantor.

1. An instrument conveying the mineral interest in certain land, after reciting a nominal consideration, declared that the grantee should have "full power to convey, " and the grantee stipulated that he would examine the land, and, if he found valuable minerals, would pay the grantor one-half the net proceeds thereof, or, should such grantee convey to third persons, he would pay the grantor $200 and one-half the net proceeds of the sale. Held, that the rights of the grantee under such instrument were forfeited by his failure, for eight years, to open the mine, and prepare it for sale.

2. Where a conveyance of mineral rights In land is defeated by the grantee's failure to perform the particular acts stipulated to be done by him in the instrument itself, and which form the real consideration therefor, a re-entry by the grantor is unnecessary.

Appeal from superior court, Stokes county; Brown, Judge.

Action by James Hawkins against N. M. Pepper and another. From a judgment for plaintiff, defendants appeal. Affirmed.

W. W. King and Glenn & Manly, for appellants.

Watson & Buxton and A. M. Stack, for appellee.

AVERY, J. It is a well-settled principle that where an estate or interest in land is conveyed for a nominal consideration, and is subject to be defeated by failure to performa condition subsequent which constitutes the consideration on the part of the grantor for executing the deed conveying it, a reasonable time will be allowed for its performance, after which the courts will adjudge that the grantee, if he has taken no steps looking to and giving promise of a compliance with it, has abandoned the purpose to perform it Ross v. Tremain, 2 Metc. (Mass.) 495; Allen v. Howe, 105 Mass. 241; 6 Am. & Eng. Enc. Law, p. 903, note 1; 2 Washb. Real Prop. (5th Ed.) p. 12, star pp. 449, 450; Austin v. Cambridgeport Parish, 21 Pick. 215.

It is familiar learning that certain apt words will always be construed to create a condition subsequent. But deeds and leases are contracts, and that before us for interpretation contains mutual stipulations, and is signed by both of the parties to it A contract may be construed by looking to all parts of the instrument embodying it, in order to ascertain whether the parties intended to create such conditions, though they may have failed to use the apt words usually employed. 2 Washb. Real Prop. p. 27, star p. 459; 1 Wood, Landl. & Ten. p. 502, § 233; 5 Lawson, Rights, Rem. & Prac. § 2511. Though neither the words "on condition, " "provided always, " "if it shall so happen, " nor other equivalent expressions, appear in the instrument, and though no clause of reentry be inserted, and yet it appears "that the performance or nonperformance of an act named is the only consideration or inducement for executing the deed, it should ordinarily be construed as a condition." 6 Lawson, Rights, Rem. & Prac. p. 4499, § 2760; Railroad Co. v. Hood, 66 Ind. 580, and cases cited, page 585.

The agreement which gives rise to the controversy recites, in the first paragraph, a nominal consideration for conveying the mineral interest in a certain tract of land, with rights of ingress and egress, to work the same, and to use "any timber or other material thereon to fit the same for market, " etc. The grantor adds, at. the conclusion of the stipulations, that "the said N. M. Pepper [the grantee], his heirs or assigns, shall have full power to convey to other party or parties." The agreement on the part of the defendant Pepper is as follows: "For the consideration aforesaid, the said N. M. Pepper agrees to make, or cause to be made, examination of the aforesaid lands, and, if any valuable minerals are found, shall pay the said James Hawkins one-half of the net amount he...