Sheets v. Vandalia Railway Company
| Decision Date | 04 June 1920 |
| Docket Number | 10,235 |
| Citation | 127 N.E. 609,74 Ind.App. 597 |
| Parties | SHEETS ET AL. v. VANDALIA RAILWAY COMPANY |
| Court | Indiana Appellate Court |
Rehearing denied November 17, 1920.
Transfer denied January 7, 1921.
From Marion Superior Court (99,480); Linn D. Hay, Judge.
Action by Thomas R. Sheets and others against the Vandalia Railroad Company. From a judgment for defendant, the plaintiffs appeal.
Affirmed.
Granville W. Browning and Miller & Dowling, for appellants.
Samuel O. Pickens, Charles W. Moores, R. F. Davidson, Owen Pickens and D. P. Williams, for appellee.
This is a suit against appellee in ejectment and to quiet title to the north 150 feet of block 94 in the city of Indianapolis known as "the Terre Haute depot property." The complaint is in four paragraphs, and alleges that on and prior to June, 1849, one William Sheets was the owner in fee simple and in possession of said real estate, and that he on said date conveyed the same by warranty deed to the Terre Haute and Richmond Railroad Company, predecessor of appellee; that the deed conveying said land provided that the same should be used and occupied exclusively for a depot and for no other purpose; that the depot building should be erected on the north part of said premises, and that upon the south part there should be left open a street of sufficient width for all business purposes connected with said road and adjoining property, which street should forever remain open for the use of the public. That part of said deed material for our consideration reads as follows:
It is alleged in the complaint that, while said deed recited a money consideration as having been received by said William Sheets, there was in fact no money or property paid or delivered by the grantee or anyone else as a consideration in whole or in part for said conveyance, but that said recital of a consideration of $ 2,750 was wholly false; that the grantee in said deed entered into immediate possession of said real estate in June, 1849, and built a railroad depot thereon in compliance with the requirements and conditions in said deed, and opened on the south part of said depot a teamway, which teamway remained open for use until sometime in April, 1915, when the appellee tore down and removed said depot building and wholly discontinued the use of said premises as a depot; that the elevated tracks of the Union Railway Company are now located on and over the whole of said land at a height of about sixteen feet above the level of the surrounding property, and which renders it impossible for said property to be used for depot purposes; that, by reason of said elevation and the location of said elevated tracks on said property, said roadway has been destroyed and abandoned, and access by the public to said property rendered impossible.
It is further alleged that the conditions upon which said property was conveyed to appellee's predecessor in title have been broken, and that the title to said property has reverted to and revested in appellants, who are the heirs at law of said William Sheets who died in 1872. A demurrer was sustained to each paragraph of the complaint, and judgment rendered against appellants that they take nothing.
Appellants contend that the deed from William Sheets conveyed said property upon condition that the grantee therein should permanently locate a depot and roadway thereon, and that said property be used exclusively for depot purposes, and said roadway forever maintained as such in connection with said depot. The questions for our consideration are: Does said deed contain a condition subsequent, and, if so, has there been a breach of such condition?
Conditional estates are of two kinds, that is, they are either estates upon condition in deed, or upon condition in law. The most simple form of an estate upon condition in deed is where a man invests another in fee reserving to himself and his heirs a certain rent on condition that if the rent be not paid it shall be lawful for the grantor or his heirs to re-enter. Many of the earlier cases involved leases and estates of this character.
Under the common law there are certain words, which by virtue of themselves make an estate conditional; thus, if a deed be made of certain lands "upon condition" that the grantee do some act, or "provided always" that the grantee do or cause some act to be done, or "so that" the grantee shall do or cause some act to be done, the grantee takes an estate upon condition without any other words being added, because these words in themselves contain a condition that the grantor and his heirs may re-enter. And if the grantee fails to perform the condition, the grantor or his heirs may re-enter. The words, "if it happen" that a thing reserved is not paid or performed, will make an estate conditional when used in a grant from the state or when used in a will, but, when used in a deed of an individual, these words do not make the title in the lands conditional. "But such words" says the court in Rawson v. Uxbridge (1863), 7 Allen (Mass.) 125, 83 Am. Dec. 670,
It is sometimes said that if a deed is made in express terms for a specific purpose, or in consideration of an act to be done or service rendered, it will be interpreted as creating a condition. But this is an exception to the general rule, and is confined to cases where the subject-matter of the grant is in its nature executory; as an annuity to be paid for in services to be rendered or a right or privilege to be enjoyed. In such cases, if the grantee fails to perform the service, or the enjoyment of the right or privilege which formed the consideration of the deed be denied, the grantor will be relieved from the further execution of the grant.
The tendency of the courts is to moderate the rigors of the common law, in respect to the breach of conditions, upon the principle that the court ought to relieve against all forfeitures and penalties, where a compensation can be had. A condition subsequent that will defeat an estate created by a deed must be fairly expressed in the deed itself. The words used must create the condition. The court will not supply it, if the parties fail to express it. The deed must speak for itself. A condition, however, may be created by any words which show a clear and unmistakable intention on the part of the grantor to create an estate on condition, regard being had to the whole of the deed in which they occur. The word "condition" need not necessarily be used, but words importing a condition must be used, or plainly inferred from the instrument, and the existing facts. Sumner v. Darnell (1891), 128 Ind. 38, 27 N.E. 162, 13 L. R. A. 173.
The true rule is that "conditions subsequent, having the effect in case of a breach to defeat estates already vested, are not favored in law, and hence always receive a strict construction." 2 Devlin, Deeds (3d ed.) § 970. A condition subsequent will not be raised by implication from a mere declaration in the deed that the grant is made for a special and particular purpose, without being coupled with words appropriate to make such a condition. In doubtful cases the disposition of the courts is to construe language as creating a trust or covenant rather than a condition. Thompson v. Hart (1909), 133 Ga. 540, 66 S.E. 270; Kilpatrick v. Mayor, etc. (1895), 81 Md. 179, 31 A. 805, 48 Am. St. 509, 511, 27 L. R. A. 643; Ecroyd v. Coggeshall (1898), 21 R.I. 1, 41 A. 260, 79 Am. St. 741; Faith v. Bowles (1897), 86 Md. 13, 37 A. 711, 63 Am. St. 489; Chicago, etc., R. Co. v. Titterington (1892), 84 Tex. 218, 19 S.W. 472, 31 Am. St. 39.
As said by the court in Post v Weil (1889), 115 N.Y. 361, 366, 22 N.E. 145, 5 L. R. A. 422, 12 Am. St. 809: ...
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Sheets v. Vandalia R. Co.
... ... Hay, Judge. Suit in ejectment and to quiet title by Thomas R. Sheets and others against Vandalia Railroad Company. Demurrer to complaint sustained and judgment rendered that plaintiffs take nothing and they appeal. Affirmed. [127 N.E. 610] Granville W. Browning, ... tore down and removed said depot building and wholly discontinued the use of said premises as a depot; that the elevated tracks of the Union Railway Company are now located on and over the whole said land at a height of about 16 feet above the level of the surrounding property, and which renders ... ...