Huntley v. . McBrayer

Hoke, J. Tbe deed in question by which "William and Jane Henson conveyed tbe property to two of their sons, W. A. and Jason Henson, contained .provision that tbe grantors could retain possession during their natural lives, and stipulation, also, for tbe support of such grantors during such period, operating by way of condition subsequent. Huntley v. McBrayer, 169 N. C., 75; Brittain v. Taylor, 168 N. C., 271; Underhill v. R. R., 20 Barbour, 455. In deeds of this character tbe right of forfeiture by reason of condition broken, until entry or proper claim made, is not regarded as an estate in the grantors, but is only a right of action to- be enforced by proper procedure, and may be destroyed or waived by tbe persons entitled to performance of tbe condition, either by formal deed of release or by conduct. Harwood v. Shoe Co., 141 N. C., 161; Ruch v. Rock Is. Ry., 97 U. S., pp. 693-696; Sharon Iron Co. v. City of Erie, 41 Pa. St., pp. 341-351; Ludlow v. Ry., 12 Barbour, 440; Hubbard v. Hubbard, 97 Mass., 188; Chalker v. Chalker, 1 Conn., 79. In tbe decisions on tbe subject this right of forfeiture or tbe waiver of it has been usually made to depend on the action of tbe grantors or their privies in blood, and it may be that tbe widow in this instance, being one of tbe grantors, comes directly within tbe purview of such cases; but, conceding that tbe mere formal right of reentry, for condition broken, descended to tbe heirs of William Henson, tbe husband and former owner, we see no reason, on tbe facts presented, why, in a case of this kind, a stipulation for support, tbe widow, who on tbe death of her husband bad become alone entitled to tbe benefits of performance, could not formally release her right to tbe grantee and relieve tbe estate entirely of tbe burden. If she bad refused to accept *645 support from tbe grantee, on tender made, or otherwise acted so as to render performance impossible, a forfeiture could not bare been insisted on, and it would seem that such a result would follow from her formal deed. It was intimated on the former appeal in this cause or in a cause between the same parties, 169 N. C., 75, that authority favored such a position, and it was so directly ruled in Tanner v. Van Bibber, 33 Ky., 550, and Andrews v. Lenter, 32 Me., and Berenbroick v. St. Luke's Hospital, 48 N. Y. Supp., 363, affirmed in 153 N. Y., 655, seem to be in recognition of the principle. In 2 Washburn on Real Property (5 Ed.), p. 454 (marginal), it is said: “As a condition subsequent may be excused when its performance becomes impossible by the act of G-od, or by the act of the party for whose benefit it was created, or is prohibited or prevented by act of the law, so it may be waived by the one who has the right to enforce it.” And in Greenleaf’s Cruise on Real Property, p. 498, title, “Estates on Condition,” subsec. 25: “A condition may be excused by the default of the person to whom it is to be performed, as by tender and refusal or by his absence in those cases where his presence is necessary for performance, or by his obstructing or preventing performance,” etc. It is an accepted principle of our jurisprudence that forfeiture of estates are not favored, and that conditions and stipulations providing for them are to be strictly construed. Ludlow v. R. R., 12 Barbour, 440, and Barrie v. Kelley, 47 Mich., 130; and on the facts of this record, it appearing that the widow, the sole beneficiary of this stipulation, had joined with one of the grantees, he having acquired the estate of the other, in conveying the property to a purchaser for full value and with covenants, assuring the quiet enjoyment of the estate, and that the title was free from encumbrances, 'even, if the technical right of reentry has descended to the heirs of William Henson, a case is presented where equity would interfere to prevent an insistence on any such claim. McGinnis v. Knickerbocker Ice Co., 112 Wis., 385, reported in 69 L. R. A., with notes containing further authority in favor of equitable interference. Having held that the joinder of the widow in the deed for full value and with covenants assuring the title should operate as a release of her claim to support, so far as this property is concerned, and relieve the estate of the grantee of liability to forfeiture on that account, it is not necessary to consider and pass upon the question of the statute of limitations. We find no error in the record, and the judgment for defendant is affirmed. No error.