J. M. Carey And Brother v. City of Casper, 2445

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtRINER, Chief Justice.
Citation213 P.2d 263,66 Wyo. 437
Docket Number2445
Decision Date03 January 1950
PartiesJ. M. CAREY and BROTHER, a Corporation, JOSEPH M. CAREY, ELIZABETH CAREY BREWSTER, CARL B. AXT, LOUISE CAREY BON, and JULIA F. CAREY, Statutory Trustees of J. M. Carey and Brother., Plaintiffs and Appellants, v. CITY OF CASPER, a Municipal Corporation, Defendant and Respondent

213 P.2d 263

66 Wyo. 437

J. M. CAREY and BROTHER, a Corporation, JOSEPH M. CAREY, ELIZABETH CAREY BREWSTER, CARL B. AXT, LOUISE CAREY BON, and JULIA F. CAREY, Statutory Trustees of J. M. Carey and Brother., Plaintiffs and Appellants,
v.

CITY OF CASPER, a Municipal Corporation, Defendant and Respondent

No. 2445

Supreme Court of Wyoming

January 3, 1950


J. M. Carey & Brother, a corporation, and others, sued the City of Casper to cancel a deed and an agreement modifying the conveyance, and sought other relief.

The District Court for Natrona County, H. R. CHRISTMAS, J. rendered a judgment for defendant, and plaintiffs appealed.

Affirmed.

The Supreme Court, RINER, C. J., affirmed the judgment, and held that a change in the use of land deeded to the city on condition that a city hall be erected and public park maintained did not result in a forfeiture of title and reversion to grantor's successors.

BLUME, J., dissented.

Affirmed.

For plaintiffs and appellants the cause was submitted on the brief of Ellery and McClintock of Cheyenne, Wyoming and oral argument by Mr. Ellery.

POINTS OF COUNSEL FOR APPELLANTS.

The proviso clause of the conveyance as modified by the agreement of July 26, 1938, by apt, clear and specific language created and imposed upon the grant a condition subsequent.

The term "condition subsequent" denotes that part of the language of a conveyance, by virtue of which upon the occurrence of a stated event the conveyor, or his successor in interest, has the power to terminate the interest which has been created subject to the "condition subsequent," but which will continue until this power is exercised. American Law Institute's Restatement of the Law of Property, Volume 1, Sec. 24, p. 59.

The intent that the conveyor shall have the power to terminate the estate created, upon the occurrence of a stated event, may be expressed by any appropriate words. Restatement Sec. 45, p. 138. Except when the attempted condition is illegal an estate in fee simple subject to a "condition subsequent" is created by an otherwise effective conveyance which contains (1) some one of the following phrases, namely, "upon express condition that," or "upon condition that," or "provided that," or a phrase of like import; and also (2) a provision that if the stated event occurs, the conveyor "may enter and terminate the estate hereby conveyed," or a phrase of like import. Restatement Sec. 45, p. 139.

While the law inclines to construe conditions subsequent so as to render their breach remediable in damages, rather than by forfeiture, still, where the plain words of the grant declare that a breach of the conditions shall defeat the estate granted, there is no room for construction. City of Barnesville v. Stafford, 131 S.E. 487, 488. (Ga.)

One of the most important considerations in determining whether a clause is a condition subsequent or something else is the presence or absence of a clause providing for re-entry by the grantor or his heirs or for forfeiture of the estate for a breach. Such a clause, while not indispensable, is always important as evidence of an intention to impose a condition subsequent, and will make certain that which in its absence is left open to construction. Rooks Creek Evang. Luth. Church v. First Luth. Church, 124 N.E. 793, (Ill.)

In the numerous cases that have been decided by the courts throughout the United States on the subject of conditions or limitations contained in a deed, it is the general rule that a mere statement in a deed that property is conveyed for a certain purpose is not construed as a condition or limitation of the grant. Such general statements which generally appear subsequent to the granting clause of a conveyance, are not considered as a condition subsequent when all of the estate was conveyed in the granting clause unless the deed contains a provision for reversion or forfeiture for violation of the condition. Burdette v. Jones, 72 N.E.2d 152, (Ohio).

The authorities which hold that the mere statement in a deed of the purpose for which the property is to be used, is not sufficient to create a condition subsequent, are only applicable where there is an absence of apt and characteristic words of condition and there is no reverter clause. This rule has no application here where the conveyance contains apt and characteristic words of condition and there is a reverter clause.

Town of Bristol v. Nolan, 53 A.2d 466, (R. I.); City of Barnesville v. Stafford, 131 S.E. 487, (Ga); Petition of Copps Chapel Methodist Episcopal Church, 166 N.E. 218, (Ohio); Markey v. Smith, 16 N.E.2d 20, (Mass.); Carpender v. City of New Brunswick, 39 A. (2d), 40 (N. J.).

While the use of the technical words "condition" or "covenant" in an instrument will be given effect if consistent with the purpose of the instrument viewed in its entirety, the mere use of such words is not controlling. Hence instances appear where provisions have been construed as conditions or as covenants accordingly as they may be attended or unattended by provisions for a forfeiture or reversion, notwithstanding the misuse of the term "covenant" or "condition, " as the case may be, in designating the provision in the instrument. As an illustration of the same principle it may be noted that if a deed of land contains a clause prohibiting its use for certain purposes, but without words of "condition" or any provision for re-entry in case of a breach, such clause is not a "condition," but a negative covenant. 7 Ruling Case Law 1087.

While the use of technical words appropriate to the creation of a condition or of an express provision for re-entry and forfeiture is not an absolute prerequisite to the creation of a condition subsequent, the failure to use them, or to use other language, is an important consideration as indicating the absence of an intention that the estate conveyed shall be restricted by such a condition. Generally, the rule is stated to be that the language used in an instrument, in order to create an estate upon condition subsequent, must expressly or by necessary implication reserve a right of re-entry by the creator of the estate or his successors in interest. 19 A. J. 525.

In the determination of the meaning of an indefinite or ambiguous contract, the interpretation placed upon the contract by the parties themselves is to be considered by the court and is entitled to great, if not controlling, influence in ascertaining their understanding of its terms. 12 A. J. 787, 788.

For defendant and respondent the cause was submitted on the brief of Marvin L. Bishop and J. F. Mahoney of Casper, Wyoming and oral argument by Mr. Bishop.

POINTS OF COUNSEL FOR RESPONDENT.

It is a general principle of law that forfeitures are not favored by the courts, especially where the property is used for a public purpose. Also that a condition subsequent is not favored by the courts and is to be strictly construed as they tend to destroy estates rather than create them, and in case of any doubt between a condition and a covenant the courts will construe the language as a covenant. Hasman v. Elk Grove Union High School, 245 P. 464 (Cal.); Booth v. Los Angeles County, 12 P.2d 72 (Cal.); O. T. Johnson Corporation v. Pacific Electric Ry. Co., 65 P.2d 368 (Cal).

It is also a rule of construction, for which no authorities need be cited, that deeds are construed more strongly against the grantor. Conditions defeating or limiting an estate are not viewed with favor. Of course, when the language used clearly and explicitly expresses a condition or defeasance, the court must give it effect unless it violates some well-established legal principle. The grantor having by clear and apt words created a fee-simple estate, his conclusion that the grantee would have no power to sell or convey the property is erroneous. It will not do for the grantor to create the highest estate known to the law, and then, in the same instrument, say to his grantee that he does not possess the right of disposition. The right of alienation is an attribute of ownership. Courts are becoming more and more inclined to give effect to all of the language used in a deed of conveyance, and not to consider the granting clause and the habendum clause as separate and distinct parts with certain legal functions. Without reviewing or attempting to reconcile the many conflicting authorities on this question, we believe the better rule to be that, where there is an irreconcilable conflict between the granting clause and the other parts of the deed, and it is impossible to ascertain with any degree of certainty the intention of the grantor, after consideration of the instrument in its entirety, the estate conveyed by the granting clause will prevail. Palmateer v. Reid, S.Ct. Ore., 254 P. 359.

It may be said that conditions which, if enforced, work a forfeiture of the estate are not favored in the law, and are to be construed strictly and most strongly against the grantor. The intention of the parties, as gleaned from the language used, and the circumstances surrounding the transaction, will ordinarily be the controlling consideration in the interpretation of the conditions of the deed. Berger v. Santa Fe College, 215 P. 825 (N. M.).

Implied conditions subsequent in grants, devises, etc., are not the favorites either of the court of law or equity, but are discouraged by both, as that doctrine is usually invoked for the purpose of securing a forfeiture of the estate. If the instrument will bear any reasonable construction that will defeat the springing of an implied condition subsequent at law as in equity, that construction will be adopted. Estates upon implied conditions subsequent cannot be created by deed, except where the terms of the grant will not admit of any other reasonable construction. Glen Rose Collegiate Institute vs. Glen Rose Independent School District No. 1, 125 S.W. 379 (Ct. Civ. App. Texas.)

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13 practice notes
  • Director, Office of State Lands v. Merbanco, No. 01-261
    • United States
    • United States State Supreme Court of Wyoming
    • 6 Junio 2003
    ...different factual settings and did not address the constitutional provisions in question here. J.M. Carey & Brother v. City of Casper, 66 Wyo. 437, 213 P.2d 263 (1950); State ex rel. Cross v. Board of Land Commissioners, 50 Wyo. 181, 62 P.2d 516 (1936). Interestingly, in interpreting the te......
  • Maher v. City of Casper, Nos. 2457
    • United States
    • United States State Supreme Court of Wyoming
    • 6 Junio 1950
    ...liberally, it must be done reasonably, and we should further bear in mind the rule stated in J. M. Carey & Bro. v. City of Casper, Wyo., 213 P.2d 263, 268, to the effect that: "Omitted facts are to be considered as adverse to the pleader under the general presumption that a party will set f......
  • Department of Labor and Industries v. Mitchell Bros. Truck Line, Inc., No. 27503-1-II.
    • United States
    • Court of Appeals of Washington
    • 27 Septiembre 2002
    ...interest, courts have defined "dispose" to encompass other, more non-traditional, methods. See J.M. Carey & Brother v. City of Casper, 66 Wyo. 437, 213 P.2d 263, 270 (1950) (citing Bullene v. Smith, 73 Mo. 151, 161 (1880)) ("[Disposal] `covers all ... alienations of property ... such as ple......
  • In re Sierra Trading Post, Inc., No. 98-35.
    • United States
    • United States State Supreme Court of Wyoming
    • 22 Febrero 2000
    ...we stated: "Conditions subsequent are not favored in the law and are to be strictly construed. J.M. Carey & Brother v. City of Casper, 66 Wyo. 437, 213 P.2d 263, 268 [1950]. Of course, conditions, like any other provision of a contract, are to be interpreted as the parties must have underst......
  • Request a trial to view additional results
13 cases
  • Director, Office of State Lands v. Merbanco, No. 01-261
    • United States
    • United States State Supreme Court of Wyoming
    • 6 Junio 2003
    ...different factual settings and did not address the constitutional provisions in question here. J.M. Carey & Brother v. City of Casper, 66 Wyo. 437, 213 P.2d 263 (1950); State ex rel. Cross v. Board of Land Commissioners, 50 Wyo. 181, 62 P.2d 516 (1936). Interestingly, in interpreting the te......
  • Maher v. City of Casper, Nos. 2457
    • United States
    • United States State Supreme Court of Wyoming
    • 6 Junio 1950
    ...liberally, it must be done reasonably, and we should further bear in mind the rule stated in J. M. Carey & Bro. v. City of Casper, Wyo., 213 P.2d 263, 268, to the effect that: "Omitted facts are to be considered as adverse to the pleader under the general presumption that a party will set f......
  • Department of Labor and Industries v. Mitchell Bros. Truck Line, Inc., No. 27503-1-II.
    • United States
    • Court of Appeals of Washington
    • 27 Septiembre 2002
    ...interest, courts have defined "dispose" to encompass other, more non-traditional, methods. See J.M. Carey & Brother v. City of Casper, 66 Wyo. 437, 213 P.2d 263, 270 (1950) (citing Bullene v. Smith, 73 Mo. 151, 161 (1880)) ("[Disposal] `covers all ... alienations of property ... such as ple......
  • In re Sierra Trading Post, Inc., No. 98-35.
    • United States
    • United States State Supreme Court of Wyoming
    • 22 Febrero 2000
    ...we stated: "Conditions subsequent are not favored in the law and are to be strictly construed. J.M. Carey & Brother v. City of Casper, 66 Wyo. 437, 213 P.2d 263, 268 [1950]. Of course, conditions, like any other provision of a contract, are to be interpreted as the parties must have underst......
  • Request a trial to view additional results

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