Richter v. Richter

• Citation: 12 N.E. 698,111 Ind. 456
• Parties: Richter v. Richter and others.
• Decision Date: 29 June 1887
• Court: Supreme Court of Indiana

111 Ind. 456

12 N.E. 698

Richter

v.Richter and others.¹

Supreme Court of Indiana.

June 29, 1887.

Appeal from superior court, Vigo county.

Stinson & Stinson, for appellant. Davis & Davis, for appellees.

Mitchell, J.

This was a suit by Henry G. Richter against George W. Richter and wife to quiet title to a tract of land theretofore alleged to have been conveyed by Henry G. to George W. Richter upon a condition subsequent. The court found the facts specially, which, so far as they are material to be stated, are as follows: On the thirtieth day of July, 1883, Henry G. Richter, being the owner of 50 acres of land in Vigo county, executed a warranty deed therefor in the statutory form to George W. Richter. The consideration mentioned in the deed was $1,000. The only consideration in fact, as the court finds, was that the grantee agreed to support, maintain, and care for the grantor, who was the father of the grantee, during his natural life. Contemporaneously with the execution of the deed, and as a part of the same transaction, the grantee, George W., executed to his father what purports to be a mortgage, which was intended to cover the same land. The purpose of the mortgage, as recited therein, was “to secure the payment, when the same becomes due, of taking care of the said Henry G. Richter during the balance of his natural life, including boarding, lodging, and washing, and it is expressly agreed that the said George W. Richter shall maintain the said Henry G. Richter in a decent and respectable manner, with good wearing apparel, and pay some debts that the said Henry G. Richter now owes; and, at the death of said Henry G. Richter, the said George W. Richter is to bury him in a respectable manner, at his expense, and the said George W. Richter is to move on the place, and stay on the place as long as the said Henry G. Richter shall live, and, in case of sickness, the said George is to furnish the said Henry with medical attendance.” It is found that, concurrently with the execution of the deed and mortgage, George W. took possession of the land, together with the personal property theretofore owned by his father. The personal property was sold, and the proceeds applied to the payment of the father's debts. The son remained in possession from July 30 to October, 1883, meanwhile giving his father proper support and treatment. The father then ordered the son off the place, whereupon the latter left, moving into his own house on a farm near by. In January, 1884, Henry G. Richter made a written demand on George W. for a reconveyance of the land, stating as a cause therefor that the latter had failed to comply with his contract of purchase in relation to the father's support. Suit was brought the day following the demand. Henry G. Richter, the grantor, remained in possession of the land after the removal of George W., being cared for meanwhile partly by his son-in-law and partly by other people. No demand was ever made by Henry G. upon George W. for support or medical attendance. Henry G. Richter was 82 years old, feeble in body and mind, very childish, troublesome, and hard to get along with, all of which was known to his son George W. at the time he entered into the agreement with his father. Upon the foregoing facts the questions for consideration are whether or not the deed was upon a condition subsequent; and, if it was, whether the condition has been broken so as to entitle the grantor to defeat the estate. It will be observed that the special findings make it appear that the sole consideration for the deed was the agreement set forth in the mortgage. The deed, and the instrument alleged to be a mortgage, manifest the entire transaction between the parties. The instruments relating to the same subject-matter, having been executed concurrently as parts of the same transaction, are to be construed together.

Giving full effect to the rule that conditions subsequent, as they “go in destruction and defeasance of estates, are odious in law, and shall be taken strictly,” we are nevertheless constrained to the conclusion that the deed and mortgage, taken together, create an estate in the grantee upon the condition subsequent that the latter shall perform the terms stipulated in the mortgage. True, neither the deed nor the mortgage state in express terms that the estate is granted upon condition, but the word “condition” is not necessary to the creation of an estate upon condition if it plainly appears from the words used that the intent of the parties was to create an estate of that description. Stilwell v. Knapper, 69 Ind. 558. In the construction of deeds, as in construing other writings, courts seek to ascertain and give effect to the real intention of the parties as...