Royal v. Aultman-Taylor Co.

• Decision Date: 22 December 1888
• Citation: 116 Ind. 424,19 N.E. 202
• Parties: Royal v. Aultman-Taylor Co. et al.
• Court: Indiana Supreme Court

116 Ind. 424

19 N.E. 202

Royal

v.Aultman-Taylor Co. et al.

Supreme Court of Indiana.

December 22, 1888.

Appeal from circuit court, Fountain county; Joseph M. Rabb, Judge.

Action by Rebecca Royal against the Aultman-Taylor Company, a corporation, and Perry Glascock, sheriff of Fountain county, to restrain the sale of land claimed by plaintiff. From an order sustaining a demurrer to the complaint plaintiff appeals.

J. E. Schoonover and J. McCabe & Son, for appellant. G. W. McDonald, for appellees.

Mitchell, J.

This was an action by Rebecca Royal against the Aultman-Taylor Company, of the state of Ohio, and Perry Glascock, sheriff of Fountain county, to enjoin the defendant from selling certain real estate alleged to belong to the plaintiff.

It appears from the complaint that on the 11th day of November, 1881, the plaintiff was the owner of a tract of land in Fountain county, and that she conveyed it by warranty deed to George W Hyatt on the date above mentioned, subject to certain conditions, which are recited in the deed. The conditions were, in effect, that Hyatt should pay to the grantor the sum of $50 on the 1st day of March of each year, for and during the term of her natural life. It was further stipulated that, in case Hyatt thereafter failed, for the period of three consecutive years, to pay the sum of $50 annually, then the grantor might revoke the conveyance by repaying the amount theretofore paid, and by executing and placing upon record in the recorder's office of Fountain county a written declaration revoking the deed. It was further recited in the deed that, upon the making and recording of such declaration, and the repayment of the money paid, the conveyance was to become null and void, and the title was to revert to the grantor. It is averred that while Hyatt so held the title, the Aultman-Taylor Company recovered a judgment against him, upon which an execution had been issued and placed in the hands of Glascock, as sheriff of Fountain county. It was also averred that the sheriff had levied upon and advertised the land conveyed to Hyatt by the plaintiff, upon the conditions above mentioned, for sale, and that the sale was fixed for the 4th day of April, 1885.

The complaint charged that Hyatt had wholly failed to make any payments, as required by the terms of the deed, and that the plaintiff had demanded of him “more than once a year each year after the date of said deed” that he make payment of the money due her on account of the provisions written in the deed. It is averred further that the plaintiff, on the 16th day of March, 1885, executed and placed upon record a written revocation of the deed to Hyatt, agreeable to the stipulations therein written. A copy of the deed, and the subsequent revocation thereof, are made part of the complaint.

The only question involved in the present appeal relates to the propriety of the ruling of the court below in sustaining a demurrer to the complaint. It is conceded that the deed created in the grantee an estate upon condition subsequent, and that the estate created was liable to be defeated upon the failure of Hyatt to pay according to the condition in the deed. The contention in support of the ruling below is that, inasmuch as by the stipulation in the deed the grantee was required to pay the grantor $50 annually on the 1st day of March, and since it was further stipulated that in case he should fail, for three consecutive years, to make payment, “then the said Rebecca Royal may revoke this deed,” it was therefore necessary, in order to...