Van Horn v. Mercer

• Decision Date: 05 June 1902
• Citation: 64 N.E. 531,29 Ind.App. 277
• Parties: VAN HORN et al. v. MERCER.
• Court: Indiana Appellate Court

29 Ind.App. 277

64 N.E. 531

VAN HORN et al.

v.MERCER.

Appellate Court of Indiana.

June 5, 1902.

Appeal from circuit court. Allen county; E. O'Rourke, Judge.

Suit by Robert Mercer, as guardian of Phoebe C. Van Horn, against James Van Horn and others. From a judgment for plaintiff, defendants appeal. Reversed.

J. A. Connolly and W. G. Colerick, for appellants. Aiken & Dawson, for appellee.

ROBINSON, J.

April 3, 1893, William Van Horn executed his will, devising to his wife, Phoebe C. Van Horn, all his real and personal property, giving her the “absolute, sole control and management” of all his estate “so long as she may live, or remain my widow.” His will was admitted to probate September 11, 1899.

March 23, 1898, William Van Horn and Phoebe C. Van Horn, “in consideration of eight hundred dollars, to them paid by James Van Horn and Emma Van Horn, the receipt whereof is hereby acknowledged, do grant, bargain, sell and convey to the said James Van Horn and Emma Van Horn, their heirs and assigns forever, the following real estate (giving particular description of land conveyed). *** The grantors, their heirs and assigns, hereby covenant with the grantees, their heirs and assigns, that the title so conveyed is clear, free, and unincumbered; that they are lawfully seised of the premises aforesaid as of a sure and indefeasible estate of inheritance in fee simple, and that they will warrant and defend the same against all claims whatever.” Signed and acknowledged by the grantors. On the same day the grantees signed and acknowledged in duplicate the following: “This indenture witnesseth, that James Van Horn and Emma Van Horn, of the county of Allen and state of Indiana, in consideration of a warranty deed executed to them by William Van Horn and Phoebe C. Van Horn, of the county of Allen and state of Indiana, for the following real estate [land described in deed], now, in consideration of said deed for said described land, said James Van Horn and Emma Van Horn hereby agree to care for and provide for the said William Van Horn and Phoebe C. Van Horn a good and comfortable living during their lifetime; to furnish them with necessary clothing and victuals and all things necessary to render them a comfortable living during their natural life; to pay all expenses of doctor bills; to care for them properly in sickness; and at their decease to have them decently buried; and until said conditions are fully complied with, this agreement shall be a lien on said above-described lands to the full sum of eight hundred dollars.” William Van Horn died April 2, 1898. His widow, by her guardian, avers in the first paragraph of complaint that the grantees have failed to comply with their agreement, and on September 7, 1899, without the knowledge or consent of appellee or his ward, and without making any provision for the support or maintenance of the surviving grantor, deeded the land to one Eigenberg, who had knowledge of the agreement and of the facts, and asks that the deed to the grantees and their deed to Eigenberg be canceled, and for possession. The second paragraph of complaint asks a foreclosure of the lien mentioned in the agreement made by the grantees. There was a trial by the court, and a decree on the first paragraph of the complaint, setting aside and vacating both deeds.

Appellee's complaint is in two paragraphs. The first error assigned is that the first paragraph of the complaint does not state facts sufficient to constitute a cause of action. An assignment relating to a separate paragraph of complaint does not present any question. Carr v. State, 81 Ind. 342;Trammel v. Chipman, 74 Ind. 474;Board v. Tichenor, 129 Ind. 562, 29 N. E. 32; Railroad Co. v. Norman, 17 Ind. App. 355, 46 N. E. 702.

It is agreed that there is no evidence of any demand for the performance of the contract to support the grantor. The condition to be performed was a continuous and fixed duty. Its performance did not depend upon anything to be done by the party entitled to insist upon performance. The grantee knew what was to be done, and there was nothing to be determined by a demand. The legitimate object of a demand is to enable a party to discharge his liability without a suit. From the nature of the duty to be performed the grantee had no right to expect a demand, and could not be injured by the omission to give it. The sale of the land by the grantee must be considered a renunciation of the contract by him. As it was the grantee's duty to perform the condition without any demand, it is not necessary to show that a demand was made before suit brought. Some of the earlier cases seem to hold that there must be a demand of performance of the condition. Cory v. Cory, 86 Ind. 567;Lindsey v. Lindsey, 45 Ind. 552. But the later cases announce the rule as above stated. Richter v. Richter, 111 Ind. 456, 12 N. E. 698;Royal v. Aultman & Taylor Co., 116 Ind. 424, 19 N. E. 202, 2 L. R. A. 526;Cree v. Sherfy, 138 Ind. 354, 37 N. E. 787. It is true the condition may be waived by the party having the right to avail himself of it; yet mere indulgence or silent acquiescence will not amount to a waiver unless some element of estoppel can be invoked. Coal Co. v. Murphy, 101 Ind. 115;Royal v. Aultman & Taylor Co., 116 Ind. 424, 19 N. E. 202, 2 L. R. A. 526. The grantee had voluntarily sold the land without the knowledge or consent of appellee or his ward, and without making any provision for her support. “The grantee having abandoned the land,” said the court in Richter v. Richter, supra, “without sufficient excuse, and without offering to perform a continuous and fixed duty which rested upon him, no demand for performance was necessary in order to entitle the grantor to re-enter.” See, also, Ellis v. Car Works Co., 97 Ind. 247.

The decree of the trial court seems to have been rendered upon the theory that the land was held upon a condition subsequent, and that, there having been a breach of the condition, the estate became forfeited. But there is no evidence in the record of any re-entry made, or of anything having been done equivalent to a re-entry or demand for possession of the land or its reconveyance. A breach of a condition subsequent is not self-operative to devest the grantees' title, because the breach may be waived. It will not of itself work a forfeiture. In Clark v. Holton, 57 Ind. 564, the court said, “It is well settled that, to enable the grantor or his heirs to recover back a tract of hind because of a forfeiture of a condition subsequent, an entry upon, or claim to, the land must be made before the commencement of the action. *** Under our system of jurisprudence, a demand of possession is equivalent to an entry on the premises.” See, also, Ellis v. Car Works Co., 97 Ind. 247; Richter v. Richter, supra. In Manifold v. Jones, 117 Ind. 212, 20 N. E. 124, it was held that a court will not enforce a forfeiture for breach of a condition subsequent unless it is shown that there has been a proper exercise of the right of re-entry. In Preston v. Bosworth, 153 Ind. 458, 55 N. E. 224, 74 Am. St. Rep. 313, suit was brought to recover an estate claimed to have been forfeited by reason of the breach of a condition subsequent. The complaint was held insufficient because it failed to “allege re-entry or its equivalent (that re-entry was prevented and...