Terry v. Taylor

• Citation: 220 S.W. 42,143 Ark. 208
• Decision Date: 05 April 1920
• Docket Number: 304
• Parties: TERRY v. TAYLOR
• Court: Supreme Court of Arkansas

220 S.W. 42

143 Ark. 208

TERRY v. TAYLOR

No. 304

Supreme Court of Arkansas

April 5, 1920

Appeal from St. Francis Chancery Court; A. L. Hutchins, Chancellor affirmed.

Decree affirmed.

Mann Bussey & Mann, for appellant.

Under the deed from Terry to Mrs. Taylor a condition precedent was created and appellee only took a life estate in the Casteel place. The condition precedent in the deed was never performed. 18 C. J. 354; 28 Ark. 48; 78 Id. 350. The words "legal heirs" as used in the will is held to mean legal representatives. 5 Words and Phrases, p. 4064.

Walter Gorman, for appellee.

1. The demurrer admits the truth of all the allegations of the complaint and answer, and the allegations show no interest or title in the appellants. The granting clause, followed by a description of the lands, conveyed the fee simple title, and the language following the description was ineffective to limit or restrict the estate, conveyed. 82 Ark. 209; 78 Id. 230.

2. The failure of appellants to act for a period of more than 14 years after executing the deed and placing the grantee in possession was a waiver of any right the grantor had to recover the property. 1 A. & Eng. Enc. 1067, and note 3 to § 568; 29 Ind.App. 277.

3. The breach of the condition does not operate ipso facto to revest the estate in the grantors. The title conveyed would not become void but voidable only at the election of the grantors on their heirs. 74 Conn. 630; 92 Am. St. 240.

4. The clause in Terry's deed, if a condition at all, is a condition subsequent. 2 Wash. on Real Prop. (6 ed.) §§ 941, 1601; Tiedman on Real Prop. 273. The Terry deed does not create a condition but vested the title. 1 A. & E. Enc. Supplement, p. 1065, notes 7, 8 and 10.

5. Under the Hughes will plaintiff acquired the title in fee to the Casteel place. Kirby's Digest, § 735; 211 S.W 183; 58 Ark. 303; 115 Id. 558; 2 L. R. A. 455, and notes.

OPINION

MCCULLOCH, C. J.

On August 6, 1904, appellee, Mrs. Lorena Taylor, made an exchange with J. B. Terry of a farm in St. Francis County known as the Casteel Place, which she held by devise under the last will and testament of E. C. Hughes, deceased, for certain property involved in this litigation, then owned by Terry. The parties executed deeds to each other for the several properties thus exchanged. The deed of appellee to Terry was in absolute form, conveying the Casteel place in fee simple, without restriction or condition. The granting clause in the deed of Terry to appellee read that the grantors "in consideration of an exchange of properties, Mrs. Lorena Taylor this day conveying to us, or one or more of us, what is known as the Casteel farm, near Linden in the southern part of St. Francis County, Arkansas, do hereby conditionally grant, bargain, sell and convey unto the said Lorena Taylor and unto her heirs and assigns forever, the following lands," etc. Here follows the description of the property conveyed and then follows a clause which reads thus: "The title here conditionally granted to become absolute in the grantee, when it shall be established that she acquired a good title in fee in the Casteel place under the will of the late E. C. Hughes. The possession of the property herein granted reserved until September 1, 1904." Then follows the habendum clause in ordinary form and also covenants of warranty of title and relinquishment of dower by Terry's wife.

The clause of the last will of E. C. Hughes under which appellee claims title to the Casteel place reads as follows:

"The balance of my personal property and all my real estate, consisting of the Linden farm, Jones place, the Casteel place, all in St. Francis County, Arkansas, I give to Lorena Utley during her life, at her death to be equally divided between her brothers and sisters, I mean her legal heirs."

J. B. Terry died in the year 1913, and the present litigation arose in the year 1919 between Terry's heirs and their grantee on the one side, and appellee on the other side, in which it is claimed by the former that there had been no performance of the condition expressed in the deed of Terry to appellee, and that in consequence thereof appellee's right to hold the property conveyed to her by Terry had failed.

The contention of appellants, as we understand it, is that appellee took only a life estate in the Casteel place under the last will of E. C. Hughes, and that "a good title in fee" had not been established within the meaning of the condition expressed in the deed of Terry to appellee; that the deed of Terry to appellee expressed a condition precedent, which was never performed, and that no title passed, or that, if it expressed a condition subsequent, the condition had been broken by nonperformance.

We find it unnecessary to determine whether appellee took title in fee simple under the will of Hughes or merely took a life estate. This question has never been judicially determined so far as it appears from the present record; and, as the rights of persons not privy to the present record are involved, we refrain from passing upon that question. It is, of course, undisputed that appellee took at least a life estate in the Casteel place, if no more.

The first question to be determined is the nature of the condition expressed in the deed of Terry to appellee, whether a condition precedent or subsequent. This is to be determined by an ascertainment of the real intention of the parties as indicated by the language used. In an early case it was said by this court that "the question whether they are the one or the other is to be determined by the intention and meaning of the parties as it appears on the instrument, and by the application of common sense to each particular case; to which intention, when once discovered all...