Ellis v. Kyger

Black;, J. — This is a suit for the assignment of dower. One of the plaintiffs, Polly Ellis, and her former husband, Isaac Jacobs, on the thirteenth of November, 1859, conveyed to Frederick Billum, in trust for the Pacific railroad, a parcel of land twelve hundred and sixty-seven feet in length by an average width of [605] five hundred feet. The deed recites that it is made “upon the condition that if the Pacific Railroad Company shall not construct the said railroad through said tract, or if, when constructed, they shall not establish a freight and passenger station upon said tract, then the conveyance shall be null and void, but otherwise to remain in full force and effect.’’ Isaac Jacobs died in 1863. The railroad was completed to a point beyond the tract of land in question in 1865. There was evidence, the bill of exceptions recites, tending to show that the company failed to perform the conditions in the deed, and evidence to the contrary effect. In 1869, Asa Whitehead procured deeds from some of the heirs of Jacobs, and in that year built a house upon the lots in question, which was destroyed by fire. Neither Jacobs in his lifetime, nor his heirs, ever .entered ox-made any effort to recover the property for condition broken. In 1878, Coventry, Cockrell and Zoll, who had acquired the title of Whitehead and the other heirs of Jacobs, quit-claimed a part of the premises described in the deed to the trustee of the railroad company, and the company at the same time quit-claimed the residue to them, from whom defendant acquired his title. The trial court gave an instruction that, upon the evidence the .plaintiffs could not recover. That the conditions in the deed for the construction of the railroad through the land therein described, and the establishment of a freight and passenger depot thereon, were conditions subsequent, is too clear to call for the citation of authorities. The trustee became seised of the premises, though the estate in him continued defeasible until the conditions were performed, waived, released, or barred by the statute of limitations, or by estoppel. As no time was fixed within which the conditions were to be performed, the law would allow the company a reasonable time. 2 Wash. Real Prop. [4 Ed.] 1. Since the railroad was completed to a point beyond the land [606] in question, in 1865, a reasonable time lias long since elapsed; and. we must assume, under the instructions given, that the company has failed to perform the stipulations in the deed to the trustee. It is well settled that an action of ejectment may be ■maintained by the grantor or his heirs for condition broken, without any entry or demand of possession. Austin v. Cambridgeport Parish, 21 Pick. 215 ; Plumb v. Tubbs, 41 N. Y. 442; Cowell v. Spring Co., 10 Otto, 55. Our statute with respect to actions of ejectment leads to the same conclusion. R. S., 1879, secs. 2240-47. But it is equally well settled that non-performance of the condition alone does not divest the estate. Performance of the condition may be waived; and the estate ■continues in the grantee after the breach until he, who has a right to insist upon performance, elects to declare .a forfeiture. The estate continues with its original incidents until entry or some act equivalent to it. 4 Kent, 127; 2 Wash. Real Prop. [4 Ed.] 12; 1 Smith’s Lead. Cas. [8 Ed.] 130; 51 Miss. 412; Kennett v. Railroad, 9 Bush, 202; Knight v. Railroad, 70 Mo. 231. The grantee in the deed of trust, . therefore, continued to be the owner of the premises at and after the death of Jacobs, who was not seised at any time after the delivery of the deed. A widow is entitled to be endowed in all the lands of which her husband, or any person to his nse, was seised of an estate of inheritance at any time during the marriage, to which she shall not have relinquished her dower. R. S., 1879, sec. 2186. As the plaintiff here relinquished her dower by deed .duly acknowledged, and her husband did not enter for condition broken, and was, therefore, not seised of the premises in dispute at any time after the delivery of the deed, it would seem to follow that the plaintiff is hot entitled to dower. Washburn says, it is enough that the husband had a seisin in law, with the right to an immediate corporal seisin. If it was not so, it might [607] often, be in the husband’s power, by neglecting to take such seisin, to deprive his wife of her right to dower. 1 Wash. Real Prop. [4 Ed.] 215. But here the husband made no entry, nor was he seised in law. The same author in the same connection says, if, at common law, the husband had not, during coverture, anything more than a mere right of entry or of action to obtain seisin, it would not be sufficient to entitle his widow to dower. The mere right of entry upon lands was not sufficient to give dower. 1 Scrib. on Dower, 243. If the husband dies before entry, in' a case of forfeiture for condition broken, his wife is not dowerable, because he had no seisin, either in fact or law. 4 Kent [13 Ed. J 38. In Thompson v. Thompson, 1 Jones [N. C.] 431, the court said, by way of illustration: “So where one makes a feoffment upon condition, and dies after condition broken, but without revesting his estate by entry, and afterwards the heir enters and revests the estate, the widow is not entitled to dower.” It results from what has been said, both upon principle and authority, that the plaintiff is not entitled to dower in the premises in question. The result would be the same had the heirs of Isaac Jacobs, and not their grantees only, entered for breach of the condition in the deed to Billum. It is further insisted by the appellants that the defendant is estopped from denying plaintiff’s right to dower. This contention is based upon the fact that the defendant’s grantors acquired possession and claim of title, at least, from Whitehead, who made claim and took possession alone under his deeds from the heirs of Isaac Jacobs. The authorities all show that the right to enter for condition broken descended to the heirs of Jacobs, the right not having been exercised by him in his lifetime. But though this be true, it does not follow .that the widow would, for that reason, be entitled to dower. We have seen that she would not be entitled [608] to dower because ber husband was not seised, either in fact or law. There is, therefore, nothing inconsistent between a claim under them, and the claim that the widow should not be endowed. It is urged that the general common law rule, which confined the right to take advantage of the non-performance of a condition subsequent annexed to an estate in fee to the grantor or his heirs, has been modified by onr statutes with respect to conveyances. We do not stop to consider this question, for it cannot affect the result before reached in this case. ' The judgment is, therefore, affirmed. All concur.