Moore v. Sharpe

• Decision Date: 12 July 1909
• Citation: 121 S.W. 341,91 Ark. 407
• Parties: MOORE v. SHARPE
• Court: Arkansas Supreme Court

121 S.W. 341

91 Ark. 407

MOORE v. SHARPE

Supreme Court of Arkansas

July 12, 1909

Appeal from Phillips Circuit Court; Hance N. Hutton, Judge reversed.

Judgment affirmed.

John I Moore, for appellant.

1. The condition in the deed was subsequent and not precedent, and there only remained to the grantor a right of entry upon the breach which cannot be assigned to a third party, and a conveyance to a third party cannot work a forfeiture. 145 F 296, 301; 97 U.S. 693; Tiffany, Mod. Law, Real Prop. § 75; Warvelle, Real Property, 51; Goodwin, Real Property, 39; 21 Wall. 63; 33 F. 693; 50 Ark. 141.

Rose, Hemingway, Cantrell & Loughborough, for appellees.

1. The condition is precedent, and, the railroad never having been built, the estate never vested. 3 Ark. 259; 26 Id. 628; 72 Id. 310; 50 Id. 141; 145 F. 296; 2 Washb. Real Prop. (4th Ed.), 6; Greenleaf's Cruise on Real Prop. tit. 32, c. 25, § 10.

2. The right to take advantage of condition broken passed to the assignees of the grantor. Kirby's Dig., § 736; 14 Ark. 493; 17 Id. 608, 672; 66 Id. 193; 1 Pet. 503; 44 Ark. 153; 16 Pa. St. (4 Harris) 146; 67 N.J.L. 288; 51 A. 781; 56 S.W. 367; 1 Nev. 40, 55; 7 Mo.App. 429; 77 N.W. 530; 37 S.W. 485; 9 Bush, 211; 5 Pick. 528; 10 Id. 206; 21 Id. 215; 147 F. 938; 152 U.S. 453.

3. All lands in this State are declared allodial, and feudal tenures are abolished. Const. Ark., 1868, art. 1, § 24; art. 2, § 28. In all States where livery of seisin is not necessary to convey an estate, a subsequent deed is an act equivalent to an entry. 152 U.S. 453.

4. Ejectment may be maintained without an actual re-entry. This is universally admitted. 1 Tiffany, Real Property, p. 74.

5. The court had no jurisdiction to order a sale of lands in another State. Wharton, Confl. Laws. § 273 et seq.: 47 Ark. 254. The sale was never reported nor confirmed. 23 Ark. 39; 55 Id. 307; 53 Id. 445; 59 Id. 5.

John B. Jones, amicus curial.

1. The condition is precedent, and no title ever vested. 1 Jones, Real Prop. & Conv., § 656; 26 Ark. 617; 4 Kent, Com. § 125; 72 Ark. 310.

2. Re-entry is not necessary upon wild lands, even if the condition was subsequent. Livery of seisin never prevailed in this State. 15 Ark. 585; Const. 1868, art. 11, § 28; Const. 1874, art. 1, § 24. Hence no re-entry required. 14 Johns. 406; 15 Pick. 189; 8 Cr. (U. S.) 8, 9; 2 Cruise, Dig., p. 37; § 37; Ib. § 38; 2 Washb. Real. Pr. (3d Ed.), p. 13, § 16; 8 Allen (Mass.), 598; 134 Mass. 82; 152 U.S. 152. A subsequent conveyance declares a forfeiture. 44 Ark. 153.

Julian Laughlin and Murphy, Coleman & Lewis, amici curiae.

1. The condition in the deed is a condition subsequent. 42 Ark. 347; 50 Id. 141; 28 Id. 54; 77 Id. 168.

2. Right to enter for breach of condition subsequent is not assignable. 1 Jones, Real Prop. § 728; Tiffany, Real Prop. § 75; Warvelle, Real Prop. 51; Goodwin, Real Prop. 38; 97 U.S. 696; 21 Wall. 63; 16 Id. 230; 106 U.S. 368; 139 Id. 676; 6 F. 653; 12 Allen (Mass.), 144; 26 N.J.L. 21; 65 So. C. 256; 48 N.Y.S. 363; 12 Barb. 460; 20 Ga. 563; 31 Conn. 478; 129 Ind. 244; 63 Ill. 204; 159 Id. 215; 34 Me. 324; 40 N.H. 222; 79 Hun 488; 130 N.C. 8; 87 Ala. 641; 14 Kan. 581; 26 N.J. 21; 21 Mo. 282; 53 Mo. 411; 94 Id. 465; 16 Gray (Mass.), 316; 16 Wall. 230; 97 U.S. 696; 106 Id. 360.

3. Kirby's Dig., § 736, does not change the common-law rule. 50 Ark. 141, 150. The right to re-enter is not title, nor an estate nor interest in land. 2 Wash. on Real Prop. § 954; Goodwin, Real Prop. 39; 12 N.Y. 132.

4. To forfeit an estate upon condition, there must be re-entry or its equivalent. 97 U.S. 696; 21 Wall. 53, 63; 114 N.W. 459; 55 N.E. 224; 98 F. 281; 42 Ark. 349; 2 Minor's Inst. 362; 147 F. 937-8; 145 F. 296.

MCCULLOCH, C. J. HART, J., dissenting.

OPINION

MCCULLOCH, C. J.

This action was instituted by plaintiffs, Alberta J. Sharpe and Augustine Boice, against J. R. B. Moore in the circuit court of Phillips County to recover possession of forty acres of land situated in that county. The plaintiffs recovered judgment below, and the defendant appealed.

Each party deraigns title from the same source, viz., from Edmund McGehee, who owned the land at the time of his death during the year 1865 under a patent from the State of Arkansas. The plaintiffs claim title to the land under a deed executed in 1881 by the widow and devisees of Edmund McGehee. The defendant claims title under a deed executed in 1873 by the executors, including the widow, of Edmund McGehee, to the St. Louis & Memphis Railroad Company. This deed purported to convey a large body of land, including the tract in controversy, all of which was wild, timbered land, without any clearing or habitation on it. The will of Edmund McGehee conferred no power upon the executors to execute the deed, and it was executed pursuant to an order of a Mississippi court, and no order was made by the Arkansas probate court. It is conceded that on this account the deed was ineffectual as a conveyance of the testator's title, and conveyed nothing except the undivided interest of the widow as one of the devisees under the will. The deed was executed on the condition, expressed therein, that the grantee should build and complete a railroad within three years from the date thereof. Whether this was a condition precedent or subsequent we need not now decide, since, conceding it to have been a condition subsequent, which is essential to the strength of defendant's claim of title under the deed, the conclusion we have reached on another controlling question is adverse to the defendant.

The condition of the deed, treating it as a condition subsequent, was not performed. No considerable amount of work in building the railroad was done, and after the condition was broken the grantor, without re-entering upon the land or by any other overt act declaring a forfeiture, subsequently executed the deed under which plaintiffs claim title. The question we propose to decide is, then, whether or not re-entry upon the land, suit or declaration of forfeiture by the grantor before conveying the land to a third party, was essential in order to effect a forfeiture, and whether any interest or estate was conveyed by the subsequent deed under which the plaintiffs claim title. We pretermit a discussion of the numerous other questions presented and argued in the case.

The doctrine of estates upon condition is of feudal origin, of which system the doctrine of title by livery of seisin formed an essential part, on account of the condition of real property at that time, and the only practical method of conveying it. This was then a doctrine of necessity, for in that day no system of registration of conveyances existed. Indeed, lands were not generally conveyed by writings, and the only practical method of giving notice of a change of title was either by actual delivery of possession or by symbolic delivery in sight of the land.

At common law, the only method whereby a forfeiture could be effected for breach of condition was by re-entry upon the premises or by a public attempt to re-enter, with a declaration of forfeiture. This, too, grew out of the doctrine of livery of seisin, the reason being that the forfeiture for condition broken must be accomplished by acts of equal dignity and notoriety with those which created the condition, viz., delivery, either actual or symbolic. "As by the old common law a freehold could be created only by the ceremony of livery of seisin, the corresponding ceremony of re-entry was necessary in order to determine it, or, as Coke has it, 'an estate of freehold cannot begin nor end without ceremony.'" (1 Jones on Conveyancing in Real Property, § 715.) "The entry, moreover, in the language of the Touchstone, should be 'an open and notorious act, equivalent to investiture of land by livery of seisin, that notoriety might be given to the change of title.' It is not necessary, however, that the party entering should declare at the time for what purpose he enters. The act speaks for itself." (Ib. § 716.)

In his recent work on Real Property, Professor Minor (vol. 1, p. 532), says: "It is an established rule of the common law that if the conditional estate be a freehold the mere occurrence of the event which constitutes the violation of the condition does not defeat the estate, because as a freehold can, at common law, only be created by livery of seisin, there is needed a corresponding notoriety in order to determine it. This corresponding notoriety is the re-entry of the grantor or his heirs. * * * No actual re-entry is necessary to determine an estate for years on condition, 'for, as a term of years may begin without ceremony, so it may end without ceremony'."

It also must be conceded that at common law the right of re-entry for condition broken was not assignable, and could only be exercised by the grantor who created the condition, or by his privies in blood. It could not be exercised by one who was only the grantor's privy in estate. This under the maxim that, in order to discourage maintenance, "nothing which lies in action, entry or re-entry can be granted." The same rule prohibited the conveyance of lands held adversely, or any interest therein. This rule was created under the English statute (32 Henry VIII, chap. 9) against selling pretended titles, and Sir Edward Coke states the reason therefor as follows: "To prevent maintenance, suppression of right, and stirring up of suits; and therefore nothing in action, entry or re-entry can be granted over; for under color thereof pretended titles might be granted to great men whereby right might be trodden down and the weak oppressed, which the common law forbiddeth." Coke on Littleton, 214a.

In many of the States of the American Union this English statute against the sale of...