Stewart v. Weaver
| Citation | 264 Ala. 286,87 So.2d 548 |
| Decision Date | 10 May 1956 |
| Docket Number | 3 Div. 743 |
| Parties | Mrs. Carlle STEWART and Leola S. Ogletree v. Arthur WEAVER. |
| Court | Supreme Court of Alabama |
H. C. Rankin, Brewton, for appellants.
Brooks & Garrett, Brewton, for appellee.
Mary Mantel, now deceased, executed and delivered a deed of conveyance of certain real estate to appellee, Arthur Weaver, reserving to herself the life estate. The deed contained the following clause:
'The grantee shall put in a good state of repair the dwelling house located on the * * * property and shall keep the same in a good state of repair; * * * and see that the said property is rented for not less than Twelve Dollars ($12.00) per month during the life of the grantor; in the event that the property should be unrented at any time, or the said grantee shall fail to collect the rent thereon, the grantee is to pay to the * * * grantor the sum of Twelve Dollars ($12.00) per month during such time as the property shall not be rented or such time as the grantee shall not collect the rent.'
An express forfeiture clause followed the above recited conditions.
Mary Mantel, during her lifetime, entered on the probate records of the county an instrument seeking to declare a forfeiture of the conveyance, because allegedly Weaver failed to comply with the above quoted conditions.
By the terms of the deed grantee Weaver was required to perform the conditions only during the lifetime of grantor Mantel. Approximately eight (8) months after the conveyance, Mantel, as stated, attempted to declare or invoke a forfeiture.
This is an appeal from a final decree in which the trial court granted relief to the complainant, Weaver, cancelling the attempted instrument of forfeiture. The relief granted was based on a finding by the trial court of a substantial compliance by the grantee, Weaver, with the conditions subsequent expressed in said deed. Appellants claim title to the property in question under the terms of the will of the grantee, Mary Mantel.
The issue, as framed by the pleadings, was whether or not the grantee had performed the foregoing conditions subsequent contained in the deed.
Appellants, in assignments of error 15, 16 and 17, raise the question of the sufficiency of the evidence to sustain the court's finding. The case was tried by the court ore tenus. His findings, therefore, will not be disturbed unless plainly and palpably wrong. Turner v. Turner, 261 Ala. 129, 73 So.2d 549; McSwean v. McSwean, 204 Ala. 663, 86 So. 646.
Conditions subsequent are not favored in the law and they are strictly construed as they tend to the destruction of estates. Zimmerman Mfg. Co. v. Daffin, 149 Ala. 380, 42 So. 858, 9 L.R.A.,N.S., 663; Seaboard Air Line R. Co. v. Anniston Mfg. Co., 186 Ala. 264, 65 So. 187; 3 Thompson on Real Property, §§ 1957, 1958. 'A substantial performance of the condition discharges it, and it is for the jury to say whether the condition has been in substance performed.' Thompson on Real Property, supra. Yazoo & M. V. R. Co. v. Lakeview Traction Co., 1911, 100 Miss. 281, 56 So. 393, 396; 1 Tiffany Real Property, 335. Nor does the law look with favor upon forfeitures. Yazoo & M. V. R. Co. v. Lakeview Traction Co., supra. And where no time limit is fixed by the deed, the performance of the condition must be within a reasonable time; what amounts to a reasonable time is a question of fact. Seaboard Air Line R. Co. v. Anniston Mfg. Co., supra.
With the above guiding legal principles a review of the evidence will be made.
There was evidence of repairs to the house by appellee prior to and following the grantor's attempted forfeiture. The evidence shows that the grantee spent approximately $100 on repairs and that he received approximately $100 in rent prior to said attempted forfeiture. The evidence shows that the grantor received from the grantee $12 a month from the time of the conveyance until her death. The undisputed evidence shows that the house was continuously rented; the testimony of some of the tenants shows that repairs were made by the appellee. The evidence also shows that the tenants continued to pay rent to the appellee--and this after the grantor instructed them to pay said rent to her. Appellee testified that neither the grantor nor the tenants complained to him that the house was not in good condition. We have not attempted to set out all the evidence. The above recital is sufficient to show that the trial court's findings relative thereto are not plainly and palpably wrong. Appellant takes nothing therefore by assignments of error 14, 16 and 17.
That we may not be committed to a holding outside the scope of the issue in the case at bar, viz., performance vel non of conditions subsequent by the grantee, the following observations are made. The estate (estate upon a condition subsequent) conveyed to the grantee is not divested merely by the grantee's breach of the condition, but continues until "the grantor * * * take[s] advantage of the breach of the condition, and make[s] an entry or claim in order to avoid the estate." Sherill v. Sherill, 211 Ala. 105, 99 So. 838, 839. We pretermit decision of whether the grantor elected to forfeit or elected to refrain from forfeiture, i. e., whether the grantor's method of invoking a forfeiture amounted to an election to forfeit, i. e., a re-entry, or whether the grantor's action in accepting rents until her death and permitting the grantee to make...
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...is harmless because the fact sought had been established prior to this question and was also subsequently established, Stewart v. Weaver, 264 Ala. 286, 87 So.2d 548; Griswold v. Duke, 224 Ala. 402, 140 So. 427. There was not only no ruling by the trial court on the question made the basis o......
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...623. When unrelated assignments of error are argued together and one is without merit, the others will not be considered. Stewart v. Weaver, 264 Ala. 286, 87 So.2d 548; Gulf, M. & O. R. Co. v. Sims, 260 Ala. 258, 69 So.2d 449; 2 A Ala.Dig., Appeal & Error, k736. However, we feel justified i......
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