Studdard v. Wells
| Decision Date | 05 February 1894 |
| Citation | 25 S.W. 201,120 Mo. 25 |
| Parties | Studdard et al. v. Wells, Executor, et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Platte Circuit Court. -- Hon. J. M. Sandusky, Judge.
Affirmed.
Byron Woodson, Thos. J. Porter and Ben J. Woodson for appellants.
(1) The deed read in evidence, from Charles F. Studdard and Matilda Studdard to Theodore Studdard, is upon conditions. Lindsey v. Lindsey, 45 Ind. 553; Blum v Bush, 49 N.W. 142; Nolan v. Nolan, 78 Mich. 24; Richter v. Richter, 12 N. E. Rep.; Stilwell v Knapper, 69 Ind. 558; Leach v. Leach, 4 Ind 628; Wilson v. Wilson, 86 Ind. 474; Jenkins v. Jenkins, 3 Monroe, 327; Scott's heirs v. Scott, 3 B. Monroe, 2; Cross v. Carson, 8 Blackford, 138; Messersmith v. Messersmith, 22 Mo. 369; Moore v. Wingate, 53 Mo. 398. (2) The word "condition" is not necessary to create a condition; but if it can be gathered from the instrument that an expectation that the duty imposed on the grantor to pay the taxes on the land and support the grantors during their natural lives was the inducement for the conveyance and the performance of such duties was the consideration for it, then it should be construed as upon condition. Wilson v. Wilson, supra; Blum v. Bush, supra; Stilwell v. Knapper, supra; Richter v. Richter, supra. (3) Charles F. Studdard having continued in possession of the land, no formal entry for condition broken was necessary; the fee remained in him. Moore v. Wingate, supra; Bank v. Drummond, 5 Mass. 320; Blum v. Bush, supra; Rollins v. Riley, 44 N.H. 9. (4) The legal title of their ancestor having failed, his heirs can not maintain ejectment for the land; their remedy is in equity. Messersmith v. Messersmith, supra; Moore v. Wingate, supra; Richter v. Richter, supra. But equity will not relieve against a forfeiture in cases like this; such relief is only granted where the covenant or conditions is to pay money. Hill v. Barclay, 19 Vesey, 56; Easterman v. Batchelor, 36 N.H. 141. The condition in this case is precedent. The obvious intention was to rely on a previous performance and not on the remedy for nonperformance. Larimore v. Tyler, 88 Mo. 667.
Wilson & Wilson and J. W. Coburn for respondents.
(1) The statement in the deed following the description of the land to the effect that the grantee, Theodore Studdard, was to support the grantors during their lives and to pay taxes on the land, was not a condition precedent, as it did not provide that the services should be performed before the title should vest. 2 Devlin on Deeds, sec. 964, p. 268. (2) Nor was that statement a condition subsequent since it did not provide for any forfeiture on the failure to perform the services. 2 Devlin on Deeds, sec. 958, p. 263. The provisions for a re-entry is the distinctive characteristic of an estate upon condition. 2 Devlin on Deeds, sec. 974, p. 276. If it is doubtful whether the language imports a condition or a covenant, the latter interpretation is adopted. 6 Am. and Eng. Encyclopedia of Law, p. 902. (3) 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. A deed will not be construed to create an estate upon condition, unless language is used which according to the rules of law, ex proprio vigore, import a condition, or the intent of the grantor to make a conditional estate is otherwise clearly and unequivocally indicated. Conditions are not to be raised readily by inference or argument. 2 Devlin on Deeds, sec. 970, p. 273; 3 Am. and Eng. Encyclopedia of Law, note to page 423; Chapin v. School District, 35 N.H. 445. (4) In all the Missouri cases of this character where the right of forfeiture was recognized the deeds were made upon the express consideration and condition that the services were to be performed. Messersmith v. Messersmith, 22 Mo. 373; Moore v. Wingate, 53 Mo. 398; Clark v. Brookfield, 81 Mo. 503; Towne v. Bowers, 81 Mo. 491.
OPINION
The plaintiffs, who are the widow and three minor children of Theodore Studdard, brought this action of ejectment against the executor of the last will of Charles F. Studdard and against the tenant of said executor, to recover the possession of eighty acres of land in Platte county. The judgment being for the plaintiffs, the defendants sued out this appeal.
On the tenth of February, 1873, Charles F. Studdard and his wife, Matilda, by their deed of that date, conveyed the land in question to their son Theodore. The deed uses the words, "grant, bargain and sell," recites a consideration of $ 3,000, paid by Theodore, and after describing the land, states:
The other evidence discloses the following facts: At the date of this deed, Theodore and his wife resided on the land, and his father and mother, the grantors, resided with them. The mother died a few years thereafter. Theodore married his second wife, she being one of the plaintiffs in this suit, in 1885; and he died in March, 1888. Theodore managed, conducted and carried on the farm until his death; and during all that time cared for and supported his father and also his mother during her lifetime. The plaintiff, the widow of Theodore, continued to reside on the farm for a period of six months after the death of her husband, and during that time supported and cared for the old gentlemen, who was then eighty-six or seven years of age. Differences then arose between them and she left. The weight of evidence is that he became abusive, took charge of the farm and rented it out. In short there is much evidence to the effect that he compelled her to leave. On the other hand there is evidence to the effect that she left of her own volition. He lived two or three years thereafter, during which time she nor her husband's estate furnished him any support.
Theodore paid the taxes on the land from 1873 to 1887. As has been said, Theodore died in March, 1888. On June 10 1889, the old gentleman executed a will, whereby he constituted one of the defendants his executor, and made a disposition of this land different from that...
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