Sioux City & St. Paul Railroad v. Singer

Dickinson, J. This is an action of ejectment. The facts of the case are as follows: The premises consist of parts of two lots in the village of Worth-ington. In 1872 the plaintiff, then the owner of the land, conveyed it by deed, which was then recorded, and which embraced this condition: “This conveyance is made and accepted on the express condition that intoxicating liquors shall never be sold or vended, as a beverage, to be drunk on the premises, and, if the same is so done, habitually, with the knowledge and consent of the owner, this instrument shall be void.” Through several intermediate conveyances the land passed to the defendant Singer in 1883, and ever since that time intoxicating liquors have been habitually sold, to be drank on these premises with his knowledge and consent. Judgment was [305] directed and entered for the defendants, the provisions of 1878 G. S. eh. 45, § 46, being regarded as applicable to and controlling the decision of the case. This section is as follows: “When any conditions annexed to a grant or conveyance of lands are merely nominal, and evince no intention of actual or substantial benefit to the party to whom or in whose favor they are to be performed, they may be wholly disregarded, and a failure to perform the same shall in no case operate as a forfeiture of the lands conveyed subject thereto.” The findings of the court do not show whether or not the plaintiff has, or ever had, any special interest in the enforcement of the condition by reason of its ownership of other lands, or for any other reason. The absence of any finding concerning that matter is explained in the memorandum of the judges, filed with their decision, where it is stated that there was no evidence upon the subject. The language of the above-recited clause in the deed is such that it must be regarded, if valid, as a condition subsequent, the breach of which would work a forfeiture of the estate granted. It is the language of a condition, and not of a covenant. There is no ambiguity or uncertainty in its meaning; no room for construing it to be anything different from what it is declared to be, — a condition upon which the estate is granted. Nor is the condition repugnant to the estate conveyed. The authorities to be hereafter cited are applicable here. See, also, Farnham v. Thompson, 34 Minn. 330, 337, (26 N. W. Rep. 9.) It is well settled that an owner of lands may annex such a condition as this to his conveyance, even of the fee, at least if he has any special and substantial interest in the enforcement of the condition. Plumb v. Tubbs, 41 N. Y. 442; Cowell v. Springs Co., 100 U. S. 55; Smith v. Barrie, 56 Mich. 314, (22 N. W. Rep. 816;) Collins Mfg. Co. v. Marcy, 25 Conn. 242; O'Brien v. Wetherell, 14 Kan. 616; Gray v. Blanchard, 8 Pick. 284; and see Pepin Co. v. Prindle, 61 Wis. 301, (21 N. W. Rep. 254.) Whether such a condition would be deemed void, upon grounds of public policy, if it should appear that the grantor had no such interest, we do not decide. Upon the face of the deed nothing appears which could render void the express condition upon which the conveyance is made [306] and accepted. A grantor may, at least under some circumstances, effectually impose such a condition upon a conveyance of the estate; and it is not necessary, in order to make prima facie valid the condition expressed in the deed, that the deed shall set forth or recite the peculiar facts which may legally justify the grantor in annexing the condition to the grant. On its face the condition is effectual. It attends and qualifies the grant. The estate is conveyed and accepted in terms subject'to it. If this condition is to be avoided, because in the particular case the circumstances of the grantor were not such as to authorize' him to thus restrict or qualify the conveyance of his estate, it can be only upon affirmative proof of the fact relied upon for that purpose. If not thus avoided, the deed must have effect according to its terms, to which the parties have assented. The statute above recited does not, in our opinion, qualify these propositions. Its language is, “when any conditions annexed to a grant or conveyance of lands are merely nominal, and evince no intention of actual or substantial benefit,” etc., they may be disregarded. This has no relation to the subject of the burden of proof, where evidence may be necessary to disclose the fact, but to thefaet itself, either as evinced by the deed, where, upon its face, the condition is obviously of no real beneficial nature, or where, the deed not disclosing the fact to be so, it is made apparent by extraneous proof. The words “evince no intention” mean “evince an absence o/-intention.” It may be apparent, from the very nature of the condition, that it was not intended to confer or reserve any real benefit to the grantor or to any other person. Such, for instance, would be a condition, annexed to the granting of a fee, that the grantee should yearly deliver an ear of corn to the grantor, or render any specified, but unsubstantial, service. To such a case the statute would apply. Again, a condition may be such that proof beyond the deed itself would be necessary to disclose the fact whether the expressed condition was or was not substantially beneficial. We will suppose that the owner of a lot conveys it with the express condition that no building shall be erected on it for a period of ten years. It cannot be said from its terms that this condition was not reasonably intended to be, or that it was not, actually beneficial to the grantor. To such a case, [307] no more being shown, the statute is not applicable. The court cannot declare the condition to be “merely nominal,” and to “evince no intention of actual or substantial benefit.” It requires that the court be further informed as to facts not disclosed by the deed, before it can declare the condition, to which the parties have solemnly agreed, to be of no legal effect. If the grantor should be found to own adjoining lands which were so improved that the erection of a building upon the granted lot would seriously impair their value aifd usefulness, the condition would, without doubt, be valid. On the other hand, the grantee, to defeat the condition, might show that the grantor had no actual or prospective interest in the adjoining premises, was in no manner concerned in them or in their use, and that they were unimproved. He might thus show himself entitled to the benefit of the statute, if, indeed, the statute confers any benefit beyond what the common law would give. We think that the court erred in disregarding the condition, in the absence of any proof that the plaintiff had no special interest in the observance of the condition. We have not overlooked the case of Barrie v. Smith, 47 Mich. 130, (10 N. W. Rep. 168,) but upon this point we must decline to follow it. The condition upon which the estate was originally granted attended it through the several succeeding conveyances. The successive purchasers bought with constructive notice of it. If, by reason of the breach of the condition subsequent, the plaintiff had a right to re-enter, it was not necessary that the common-law ceremony of a re-entry be performed, as a condition precedent to the prosecution of an action to recover the possession of the property. Plumb v. Tubbs, supra; Cornelius v. Ivins, 26 N. J. Law, 376; Ruch v. Rock Island, 97 U. S. 693; Lessee of Rugge v. Ellis, 1 Bay, 107, 111; and see Adams, Eject. 10. Whatever necessity there may have anciently been for such a proceeding, the reason for it ceased with the disappearance of the fictions and devices resorted to, upon which to found the action of ejectment. The appellant asks that, if the judgment be reversed, we direct judgment in its favor upon the findings of the court. We decline to do this, for there may be other questions presented by the case, but [308] not covered by the findings, such as that of acquiescence or waiver, and which the trial court, upon its theory of the case, did not deem it necessary to consider. (Opinion published 51 N. W. Rep. 905.) Judgment reversed.