Voris v. Renshaw

• Decision Date: 30 September 1867
• Citation: 1867 WL 5377,49 Ill. 425
• Parties: SAMUEL VORIS et al.v.WILLIAM RENSHAW, JR.
• Court: Illinois Supreme Court

49 Ill. 425

1867 WL 5377 (Ill.)

SAMUEL VORIS et al.

v.WILLIAM RENSHAW, JR.

Supreme Court of Illinois.

September Term, 1867.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Peoria county; the Hon. SABIN D. PUTERBAUGH, Judge, presiding.

On the 26th day of April, 1850, George Morton, being the owner in fee of block 104 in Morton, Voris & Laviell's Addition to Peoria, conveyed the same to his son, Peter Morton, in consideration of one dollar and natural love and affection, and “upon this express condition, that the said grantee shall not convey the above property, except by lease for a term of years, to any person whomsoever, prior to January 1st, 1861.”

On the 9th of July, 1853, Peter Morton leased the premises to William Renshaw, Jr., for ninety-nine years, and on the same day executed to Renshaw a bond, reciting that he had sold the property to Renshaw for the sum of $10,000, cash in hand paid, and conditioned that Peter should convey the same by deed to Renshaw after Jan. 1st, 1861, and before Jan. 1st, 1862.

Peter Morton died in 1857, intestate, leaving certain heirs at law, and in 1858 Samuel Voris took possession of the premises, claiming under those heirs.

In 1861, Renshaw exhibited his bill in chancery in the circuit court of Peoria county, against the heirs at law of Peter Morton, and Voris, to enforce his rights under his contract of purchase. An answer and cross-bill were filed by Voris.

Such proceedings were had, that in 1867 the cause came on for final hearing, and a decree was entered, that Voris take nothing by his cross-bill, and that the same be dismissed; that Voris should convey to Renshaw all the title to said land which he acquired from the heirs of Peter Morton, deceased, with proper covenants against incumbrances done or suffered by said Voris, and that he surrender the possession of the same on or before the 27th of August, 1867; that defendants pay the costs, and that execution issue therefor; that in case of Voris' failure to make the deed or surrender the possession, the master should make the deed, and the sheriff should put Renshaw into possession.

Voris and his co-defendants thereupon took this appeal, and now insist that the transaction between Renshaw and Peter Morton was in violation of the condition in the deed from George Morton, and that Renshaw acquired no rights thereby; while, on the other hand, Renshaw contends the transaction was not in violation of such condition, and if the condition must be so construed it is void.

Mr. H. M. WEAD and Mr. D. MCCULLOCH, for the appellants, contended,

First, That the condition in the deed from George Morton to Peter Morton, that the latter should not convey until after a specified time, was valid and binding, citing 2 Cruise's Digest, ch. 1, p. 2, Title 13, sec. 1, and sections 9, 15 and 22 of the same chapter; 2 Bacon's Abr. (7th ed.) 130; Doe ex dem. Gill and wife v. Pearson, 6 East, 173; Co. Litt. 223, sec. 361; 1 Wash. on Real Prop. (2d ed.) 470; McWilliams v. Nisby, 2 Serg. & Rawle, 507; Shep. Touch. 131; Gray v. Blanchard, 8 Pick. 283; Blackstone v. Davis, 21 Pick. 42; Jackson v. Schutz, 18 Johns. R. 183; Shackelford v. Hall, 19 Ill. 212.

Second, The lease from Peter Morton to Renshaw for ninety-nine years, and the bond for a conveyance to be made after the time limited, were a violation of that condition. Doe ex dem. Mitcheson v. Carter, 8 Term R. 170; Doe v. Hawke, 2 East, 481.

Mr. T. LYLE DICKEY, for the appellee. If the condition must be construed as contended for by counsel for the appellants, it is void. Greenleaf's Cruise, Title 13, sec. 22; 1 Hilliard on Real Prop., p. 369, ch. 27, sec. 20; Shep. Touch. vol. 1, p. 129, et seq.; Litt. Tenures, book 3, ch. 5, sec. 360; 2 Spence Eq. Jur. 89; Hawley et al. v. Northampton, 8 Mass. 37; Hall v. Tufts, 18 Pick. 455.

But the condition has not been violated. It must receive the most strict interpretation. Cruise, Title 23, ch. 2, sec. 1; 1 Shep. Touch. 133; Lynde v. Hough, 27 Barb. N. Y. 423; Jackson v. Silvernail, 15 Johns. 278; Livingston v. Stickles, 7 Hill, 255; Crusoe v. Bugby, 3 Wils. 234; 2 Wm. Bl. 776; Doe v. Hogg, 4 Dowl. & Ryl. 226.

Again, the clause in the deed from George Morton to Peter Morton, of April 26, 1850, is a condition and not a limitation of the estate. See Wendell's Blackstone's Com. 2d book, p. 155, top p. 154, ch. x,--and therefore a breach of the condition does not ipso facto terminate the estate granted by George Morton to Peter Morton, but the estate continues until George Morton shall declare the forfeiture. This he has never done, and the right to do so is personal and not transferable, and Voris has no power or authority to make such declaration. Shep. Touch. vol. 1, pp. 149, 153, top pp. 184, 278; Nicoll v. N. Y. & E. R. R. Co., 12 Barb. N. Y. 460; Underhill v. Sar. & Wash. R. R. Co., 20 Barb. N. Y. 455.

Mr. JUSTICE WALKER delivered the opinion of the Court:

There is no dispute that George Morton was the owner of the block of ground in controversy, and that he, on the 26th day of April, 1850, executed a conveyance of the same to his son Peter. The consideration expressed in the deed was one dollar and natural love and affection. But the deed contained this clause: “To have and to hold the premises with the appurtenances, unto the said party of the second part, and his heirs and assigns forever, upon the express condition, however, that the said party of the second part shall not convey the above described property, except by lease for a term of years, to any person whomsoever, prior to the 1st day of January, 1861.”

It appears that on the 1st day of March, 1851, Peter Morton leased the property to B. C. Harris for the term of ten years, reserving an annual rent of fifteen dollars. Again, on the 9th day of July, 1853, he executed another lease on the same premises to appellee for the term of ninety-nine years, reserving a yearly rent of one dollar, and on the same day he also executed to him a bond for a conveyance of the premises in fee between the 1st days of January, 1861 and 1862, and received from appellee $10,000 as the purchase money. The bond and lease were duly recorded in the proper office, on the 13th day of July, 1853.

On the 2d day of November, 1853, Harris' interest in the premises was sold under an execution against him, and was purchased by appellee, and he received a deed for the same from the sheriff. On the 6th day of November, 1854, Harris assigned his lease to George Morton. Peter Morton died in the year 1857, unmarried, without children or descendants of children, and intestate. Samuel Voris subsequently obtained deeds for the conveyance of the premises from all of the heirs at law of Peter Morton, between the 20th day of August, 1858, and the 18th day of November, 1859, all of which were duly recorded prior to the 6th day of January, 1860. He also took possession of the premises in 1858, and has occupied them ever since, claiming to be the owner.

The case having been heard in the court below, the relief sought was denied and a decree rendered dismissing the bill, from which an appeal was prosecuted to this court, and the decree reversed and the cause remanded for further proceedings. The cause was again tried upon substantially the same proofs, and a decree was rendered in favor of complainant, granting the relief prayed, from which the defendants below prosecute an appeal and ask a reversal.

Inasmuch as the lease from Peter Morton to Harris expired before these proceedings were commenced, it is not in the case, and can have no bearing on the conclusion at which we have arrived. The only question we propose to reconsider is the same that was presented and discussed when the case was previously before the court, and that is, whether the lease for ninety-nine years, and the bond for a conveyance, executed by Peter Morton to appellee, were in violation of the condition annexed to the conveyance from George to Peter Morton. Other questions are raised and discussed in the elaborate and very able argument filed by appellants, but after a full, careful and thorough examination of the case, in the light of the arguments and authorities cited, we deem it unnecessary to discuss any other question. And after the most mature reflection we have been able to bestow upon the case, we have arrived at the same conclusion that was announced when the case was previously before the court, but for different reasons from those then assigned.

Admitting that the condition is not repugnant to the estate, and is valid and binding, still the question is presented, whether, by executing the lease for ninety-nine years, and the bond for a conveyance after the time should expire, within which Peter Morton was prohibited from alienating, worked a forfeiture of the estate conveyed to Peter by the deed containing the condition. Conditions subsequent are not favored in law, and are construed strictly, because they tend to destroy estates; and a rigorous exaction of them is a species of summum jus, and in many cases hardly reconcilable with conscience. 4 Kent Com. 129. And as illustrating the rule, we find that it has been held, that where the condition is personal to the grantee, as that he shall not sell without leave, the executors of the lessee not being named in the condition, may sell without incurring a breach. Dyer, 65; Moore, 11.

In Shep. Touchstone, vol. 1, p. 133, it is said:

“It is a general rule, that such conditions annexed to estates as go in defeasance and tend to the destruction of the estate, being odious to the law, are taken strictly, and shall not be extended beyond their words, unless it be in some special cases. And therefore, if a lease be made, on condition that if such a thing be not done, the lessor (without any words of heirs, executors, & c.,) shall re-enter and avoid it,--in this case regularly the heirs, executors, &c., shall not take advantage of this condition. So, if one make a lease for years of a house, on condition...