Shinn v. Shinn

• Decision Date: 07 June 1889
• Citation: 21 P. 813,42 Kan. 1
• Parties: ABNER SHINN v. ELLA SHINN
• Court: Kansas Supreme Court

21 P. 813

42 Kan. 1

ABNER SHINN v. ELLA SHINN

Supreme Court of Kansas

June 7, 1889

Error from Bourbon District Court.

THIS was an action in the nature of ejectment, and for rents and profits, brought in the district court of Bourbon county on April 2, 1886, by Ella Shinn against Abner Shinn, to recover certain real estate in that county, and for rents and profits. It is admitted that April 17, 1882, and prior thereto, Abner Shinn was the owner of the land in question but on that day he executed and acknowledged the following instrument in writing, and delivered the same to Eugene F Shinn and Ella Shinn, who were then and still are husband and wife. Eugene F. Shinn is the son of Abner Shinn. The aforesaid instrument in writing reads as follows:

"WARRANTY DEED.

"This indenture, made this 17th day of April, 1882, between A Shinn (widower), of Bourbon county, in the state of Kansas of the first part, and Eugene F. Shinn and Ella Shinn, of Bourbon county, in the state of Kansas, of the second part witnesseth, that the said party of the first part, in consideration of the sum of one dollar and natural love and affection, value of premises being $ 3,500, the receipt of which is hereby acknowledged, does by these presents grant, bargain, sell and convey unto the said parties of the second part, their heirs and assigns, all the following-described real estate, situated in the county of Bourbon and state of Kansas, to wit: The west half of the southeast quarter of section eighteen, of township twenty-five, of range twenty-five, containing eighty acres, more or less, according to the government survey, for the purpose of having the entire use and profit of the same, but not to have the right to sell, mortgage or incumber the same in any way for the period of ten years from the date hereof; this grant being for the use of said premises only, and not conveying the fee simple therein for the period of ten years from date; and if the grantees shall mortgage or in any way incumber said premises during said ten years, then this conveyance shall be void, and the premises hereby conveyed shall revert to the grantor; but at the expiration of said ten years the absolute title and fee simple to said premises shall vest in said grantees, if they do not incumber the same, to have and to hold the same after ten years from the date hereof, together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in any wise appertaining, forever. And said A. Shinn, for his heirs, executors, or administrators, does hereby covenant, promise and agree to and with said parties of the second part, that at the delivery of these presents he is lawfully seized in his own right of an absolute and indefeasible estate of inheritance in fee simple, of, and in all and singular, the above-granted and described premises, with the appurtenances; that the same are free, clear, discharged and unincumbered of and from all former and other grants, titles, charges, estates, judgments, taxes, assessments and incumbrances of what nature or kind soever; and that he will warrant and forever defend the same unto said parties of the second part, their heirs and assigns, against the said party of the first part, his heirs, and all and every person or persons whomsoever lawfully claiming or to claim the same.

"In witness whereof, the said party of the first part has hereunto set his hand the day and year first above written.

ABNER SHINN. [Seal.]"

STATE OF KANSAS, BOURBON COUNTY, ss.: Be it remembered, that on this 17th day of April, 1882, before me, the undersigned, a notary public in and for the county and state aforesaid, came Abner Shinn, who is personally known to me to be the same person who executed the within instrument of writing, and such person duly acknowledged the execution of the same.

"In witness whereof, I have hereunto set my hand and affixed my notarial seal, the day and year last above written.

[L. S.]

W. J. BAWDEN, Notary Public.

(Commission expires March 4, 1884.)"

This instrument in writing was filed for record in the office of the register of deeds of Bourbon county on April 24, 1882. On September 24, 1887, this case was tried before the court without a jury, and the court found generally in favor of the plaintiff and against the defendant, and rendered judgment both for the recovery of the land and the rents and profits; and to reverse this judgment, the defendant, as plaintiff in error, brings the case to this court.

Judgment affirmed.

J. D. McCleverty, for plaintiff in error:

This case turns entirely upon the force and effect to be given to the deed or instrument under which the plaintiff below, Ella Shinn, claims title. The contention of the plaintiff in error is that it is not a deed, but, at most, a present lease for ten years from its date, upon a condition subsequent not to incumber, and an agreement to convey after ten years upon the same condition. If the circumstances of the transaction are to be considered in construing it, they tend to support this idea. It was a wedding gift from the father to his son. He appears to have had doubts as to the harmony of the proposed union, as is shown by the conditions of this instrument; doubts which, unfortunately, soon became a reality. To guard against this contingency he made his gift conditional.

Whatever may have been the intent, the contract as actually made must control. A grantor has the right to impose such conditions upon the grant as he deems proper, and the grantees, having accepted, must abide by them. They were "not to incumber in any way" the estate granted, and yet they suffered a judgment to be taken against them. This judgment, too, was the joint act of both of these grantees, since the record shows that the judgment was rendered upon the application of Ella Shinn, one of the grantees, and that E. F. Shinn, the other grantee, suffered and permitted it to be taken. Nor can it be claimed that this was inadvertently or blindly done and persisted in, for the record shows that immediately after this judgment for alimony the defendant below notified the plaintiff that he "no longer recognized any rights of Ella Shinn, or her husband E. F. Shinn, in this land." He continued to deny those claims, and Ella Shinn, after waiting until April, 1886, without then or at any other time asking to have this judgment set aside, brought this suit.

This condition, while a condition subsequent as to the term of years, is a condition precedent as to the agreement to convey; but in either event, if violated, the grantees would forfeit their rights. So, also, whether this instrument be construed either as a deed or a lease with an agreement to convey, it must be held that this judgment was a lien upon the title and interest of the grantees, as judgments are made liens upon the real estate of the debtor, (Code, § 419,) and the "phrase 'real estate' includes lands, tenements and hereditaments, and all rights thereto and interest therein, equitable as well as legal." See eighth subdivision of § 1 of the act "concerning the construction of statutes." The supreme court of Iowa, in construing these words, holds that a judgment is a lien upon a lease. (National Bank v. Bennett, 40 Iowa 537.) This is the law of this state also; then this judgment became a lien upon whatever interest or right E. F. Shinn had in this land, and justified the reentry then made by their grantor. That the breach of a condition, whether precedent or subsequent, will avoid a conveyance, has been expressly decided in this state. (O'Brien v. Wetherell, 14 Kan. 467.)

So there can be no doubt of what was intended by this conveyance, and that a breach of the condition should work a forfeiture. Had these parties executed a mortgage, whether for $ 3,000 or for $ 30, it could scarcely be claimed that they had not broken the condition that they were "not to have the right to . . . mortgage." So also, it would seem equally clear that where Ella Shinn demands a judgment which she must know would be a lien and incumbrance upon E. F. Shinn's interest in this land, and he suffers such judgment to be rendered, that the condition was violated which provided that they were "not to have the right to . . . incumber the same in any way, . . . and if the grantees shall . . . in any way incumber said premises during said ten years, then this conveyance shall be void, and the premises hereby conveyed shall revert to the grantor, but at the expiration of said ten years the absolute title in fee simple shall vest in said grantees, if they do not incumber the same."

Certain it is that Ella Shinn could have issued execution upon this judgment and levied it upon and sold her co-grantee's, E. F. Shinn's, interest in this land, and this as effectually as though a mortgage had been given.

By common experience we know that a lease for a term of years is usually upon some condition, as the payment of rent monthly or a covenant not to assign, a violation of which works a forfeiture if demanded or enforced by the lessor, and he may reenter and take possession. (Godfrey v. Black, 39 Kan. 196. See also Nichols v. Eaton, 91 U.S. 716; Lambert v. Haydel, [Mo.] 9 S.W. 789.) But whatever may be the rule as to the validity of such a condition or limitation, when applied to a grant in fee, such conditions have always been held valid when applied to an estate for years, or any estate less than a fee. (Gray's Restraints on Alienation, § 101, and cases cited.) And for a violation thereof the lessor or grantor could reenter, or not, at his option. Hence if the grantor, defendant below, had not exercised his option by his reentry, Ella Shinn could, by issuing execution upon this judgment, have sold out the interest of E. F. Shinn in this...