Kampman v. Kampman

• Decision Date: 20 March 1911
• Citation: 135 S.W. 905,98 Ark. 328
• Parties: KAMPMAN v. KAMPMAN
• Court: Arkansas Supreme Court

135 S.W. 905

98 Ark. 328

KAMPMAN v. KAMPMAN

Supreme Court of Arkansas

March 20, 1911

Appeal from Arkansas Chancery Court; John M. Elliott, Chancellor reversed.

Decree reversed and cause remanded.

R. D Rasco, for appellant; Manning & Emerson, of counsel on the brief.

1. Equity does not favor forfeitures, and deeds must be strictly construed as against the grantors. "Courts always construe clauses in deeds as covenants rather than conditions, if they can reasonably do so." 2 Washburn on Real Prop. (5 ed.) § 3; Id. § 5; Tiedeman on Real Prop. (2 ed.) § 279; 2 Washburn, Real Prop. (14 ed.) § 7; 25 S.W. 201; 15 Wall. 146; 2 Story's Eq § 1319; 4 Kent's Com. 131; 59 Ark. 405-8.

Conditions subsequent are not favor in law because they tend to destroy estates. 109 Va. 676; 64 S.E. 982; 50 So. 443; 133 Ga. 540; 90 Minn. 352; 152 F. 143; 13 Cyc. 687.

2. A condition subsequent will not defeat an estate, if the condition has been performed by the grantee or waived by the grantor, and waiver may result from acts as well as from agreement. Tiedeman on Real Prop. (2 ed.) § 278; 13 Cyc 708; 75 Ark. 411.

3. The deed does not constitute a condition subsequent, neither does the special clause therein. I Cooley's Blackstone (4 ed.) 154; 4 Kent's Com. (13 ed.) 142; Tiedeman, Real Prop. (2 ed) § 271; Black's Law Dictionary, 246; 6 Am. & Eng. Enc. of L. 500; 8 Cyc. 559; 232 Ill. 594; 4 Cush. 178; 25 S.W. 201; 47 S.E. 415; 64 N.E. 531; 121 S.W. 15; 111 S.W. 1069; Kirby's Dig. § 733.

4. The special clause in the deed is repugnant both to the granting clause and habendum, and is therefore void. 13 Cyc. 683-4-5; 66 S.E. 104; 27 L. R. A. (N. S.) 388, 395; 92 Ark. 324; 82 Ark. 209.

John L. Ingram, for appellee.

Taking into consideration the relationship of the parties, the grantor's age and physical infirmities and the language of the deed, it is plain that the annual payment by grantee to the grantor was a condition of the deed; and this was the real consideration. For failure to pay the grantor had the right to sue for cancellation of the deed. 67 Ark. 265; 86 Ark. 251; 64 S.W. 426; 21 S.W. 283; 12 N.E. 698; 21 N.E. 897.

OPINION

MCCULLOCH, C. J.

The plaintiff, H. J. Kampman, and his wife, Ulferdina Kampman, on August 8, 1907, executed to their son, the defendant, Henry J. Kampman, a deed conveying 40 acres of land situated in Arkansas County, and on July 30, 1909, he instituted this action in the chancery court of that county to cancel the deed, claiming that it expressed on its face a condition subsequent which the defendant had failed to perform. The condition was that the defendant, Henry J. Kampman, "is to pay to the said H. J. Kampman, and wife, Ulferdina Kampman, forty dollars a year as a dowry during their natural lifetime." Plaintiff's wife died before the institution of the suit. The defendant in his answer denied that the deed contained a condition subsequent, or that he had failed or refused to perform all the conditions stated in the deed. He alleged that his father had stated to him from time to time that he need not pay the stipulated amount unless he needed it, and that he had performed services for his father from time to time in value more than equal to the amount stipulated. On final hearing the chancellor entered a decree in favor of the plaintiff, cancelling the deed, and the defendant appealed.

The questions whether the language of the deed was sufficient to create a condition subsequent, and whether the condition expressed therein was void by reason of being repugnant to the granting clause of the deed, are argued by counsel pro and con with much earnestness, but, in the view we shall express on the questions of fact involved, it becomes unnecessary for us to pass upon those questions. We concede for the purpose of disposing of the cause in this opinion, that the deed contained a condition subsequent, and that the condition expressed was not in conflict with the granting clause of the deed so as to render the condition void and unenforceable. It is not amiss, however, to say in this connection, that such conditions are not favored in the law, and must be clearly expressed before they will be enforced. Judge RIDDICK, in delivering the opinion of the court in Bain v. Parker, 77 Ark. 168, 90 S.W. 1000, said: "Conditions subsequent that defeat the estate conveyed by the deed are not favored in law. The words of the deed must clearly show a condition subsequent, or the courts will take it that none was intended; and when the terms of the grant will admit of any other reasonable interpretation, they will not be held to create an estate on condition." It is also well settled that courts of equity so abhor forfeitures that they will not enforce them, leaving the parties to such remedies as they may have at law. If the condition had been broken, as contended by plaintiff, his remedy at law was complete. Little Rock Granite Co. v. Shall, 59 Ark. 405, 27 S.W. 562. But, as the jurisdiction of the chancery court was not questioned below, nor was any motion made to transfer the case to a court of law, that question is deemed to have been waived.

The first question presented in the argument, however, is that the decree shows that evidence was heard which is not in the record. The decree recites that the case was heard by the chancellor upon the pleadings and "the depositions on behalf of the plaintiff and the defendant, and other evidence." The transcript contains only the depositions of the witnesses and the exhibits filed with the complaint, and this is certified by the clerk as all the records and proceedings on file in his office. The certificate of the chancellor, expressed in the recital of the decree, must, of course, control where there is any conflict with the certificate of the clerk. There is no conflict, however, between the two certificates in this instance, as the words "other evidence" are deemed to refer to the exhibits which are found in the record. Beach v. Turpin, 88 Ark. 604, 115 S.W. 404.

This question being out of the way, we are of the opinion that the evidence shows a waiver on the part of the plaintiff of strict performance of the condition expressed in the deed. According to the terms of the deed, the installments were due annually at the end of each year, beginning from the date of the deed, making the first payment due August 8, 1908. There is a sharp conflict between the statements of the two parties, and there is nothing to corroborate either, but, as the chancellor accepted the plaintiff's statement of the facts, we must, under well settled rules, do the same, as it cannot be said that that conclusion is against the preponderance of the evidence. We therefore reach our conclusion upon the version of the transaction given by the plaintiff himself. According to that version, the plaintiff and his son, the defendant, lived near each other from the time the deed was executed until the first demand made for payment of the stipulated amount, which was on June 21,...