St. Louis Southwestern Railway Co. v. Curtis

Wood, J., (after stating the facts). 1. Appellant contends that the deed in controversy is an absolute conveyance, and relies upon Bain v. Parker, 77 Ark. 168. In that case the deed was as follows: ■ “The grantors, in consideration of one dollar and the further consideration of the building, equipping and operating a line of railroad, etc., to be completed by January 1, 1899, have granted, bargained, sold and conveyed,” etc. In that case we held that the words “to be completed by January 1, 1899,” when taken in connection with the other provisions of the deed, did not amount to a condition subsequent. We said: “There are no words indicating that the estate should he forfeited if the road was not completed at the date named. These words import nothing more than a covenant, which, upon the acceptance of the deed by the grantee, became binding upon him, and for the breach of which the grantor may recover damages suffered thereby, but the deed remains valid.” The language of the deed under review in that case relied upon as showing a, condition subsequent was entirely different from the clause of the deed now under consideration. In that case the words “to be completed by January 1, 1899,” were not conditions upon which the title was forfeited. As was there said, they only amounted to a covenant to do certain things, but there was nothing to indicate that if the things prescribed were not performed the title in the grantee would be forfeited and would revert to the grantor. But here the provision “when it shall cease to be used as such (section house) the title to the land shall revert,” expresses a condition subsequent, upon the happening of which the title is to revert to the grantor. The words “when it (the section house) shall cease to be used as such” are clearly words expressing a condition, and the words “the title to the land shall revert to and vest in S. H. Curtis,” clearly express the intention of the parties to the deed that the title should revert to and vest in the grantor upon the happening of the condition. Here the undisputed evidence shows that appellant did cease to use the section house as such before it removed the same from the premises, and therefore, under the express terms of the condition, the title reverted to and was vested in the appellee. The qualified or base fee which the appellant had under the deed terminated upon the breach of the condition subsequent. The evidence shows that the condition subsequent was not complied with, and that the estate reverted before appellant moved the house from the land. Upon a breach of the condition subsequent, ipso facto the title reverted and was vested in the appellee, and it was not necessary for the appellee to take possession of the land in order to effect a forfeiture for failure on the part of the appellant to comply with the condition. See Moore v. Sharpe, 91 Ark. 407. The undisputed evidence shows that the appellee did take possession of the land and declare a forfeiture for the condition broken before appellant moved the house. 2. Appellant contends that the house in controversy was not a fixture, and therefore appellant had the right to move the same, without regard to the title to the land. But we ■ are of the opinion that the clearly expressed intention of the parties as gathered from the language of the deed was that the section house should be erected on the land and used as a section house, and this being the very purpose of the deed, the trial court was correct in holding as matter of law, under the language of the instrument, that the section house was a fixture. See Ozark v. Adams, 73 Ark. 227, and cases cited. 3. The house in controversy being a fixture, the evidence was sufficient to sustain the verdict of the jury as to the value thereof. The judgment is therefore correct, and it is affirmed.