Thompson v. Hart , 133 Ga. 540 ( 1909 )

Beck, J.

(After stating the foregoing facts.)

As provided in the Civil Code, §3136, “An estate may be granted upon a condition, either express or implied, upon performance or breach of which the estate shall either commence, be enlarged, or defeated.” But section 3971 provides that “Equity seeks always to construe conditions subsequent into covenants, and to relieve against forfeitures, where the rules of construction will allow.” In neither of the deeds which are before us for consideration in the present case do we find any language which necessarily implies an intent of the grantor to create a conditional estate. But in order to sustain the contention of the plaintiffs in this case it is necessary to determine that the language of the clauses in the two deeds, indicating the purpose for which the conveyance was made and the trust created, imports a condition, or that, construing the deeds as a whole, the clauses referred to show a clear and unmistakable intention on the part of the grantors to create an estate on condition. To put sucb a construction as this upon the language employed in the clauses referred to, it seems to us, would be a reversal of the rule laid down in the code section last quoted, and would imply great readiness upon the part of the court to raise conditions subsequent in deeds by inference and argument, when the true rule is that “Conditions subsequent, having the effect in case of a breach to defeat estates already vested, are not favored in law, and hence always receive a strict construction.” 2 Devlin on Deeds, §970. A condition subsequent will not be raised by implication from a declaration in a deed that the grant is made for a special and particular purpose, without being coupled with words appropriate to make such a condition. Kilpatrick v. Mayor of Baltimore, 81 Md. 179 (48 Am. St. R. 511, 27 L. R. A. 643, 31 Atl. 805). ín the ease of Rawson v. School District, 7 Allen (Mass.), 125 (83 Am. D. 672-673), it is said: “A deed will not be construed to create an estate on condition, unless language is used which, according to the rules of law, ex proprio vigore, imports a condition, or the intent of the grantor to make a conditional estate is otherwise clearly and unequivocally indicated. . . In grants from the crown and in devises, a conditional estate may be created by the use of words which declare that it is given or devised for a certain purpose, or with a particular intention, or on payment of a certain sum. But this rule is applicable only to those grants of gifts which are purely voluntar}1-, and where there is no other consideration moving the grantor or donor besides the purpose for which the estate is declared to be created. But such words do not make a condition when used in deeds of private persons. If one makes a foeffment in fee ea intentione, ad ejfectum, ad propositium, and the like, the estate is not conditional, but absolute, notwithstanding: Co. Lit. 204 a; Duke of Norfolk’s Case, Dyer, 138 b; Wood on Conveyancing, 290; Shep. Touch. 123. These words must be conjoined in a deed with others giving a right to reenter or declaring a forfeiture in a specified contingency, or the grant will not be deemed to be conditional.” See also Warvelle on Real Property (3d ed.), 327. The rule here stated and applied has been followed by many other appellate courts in the United States. In the case of Thornton v. Trammell, 39 Ga. 202, Warner, J., delivering the opinion of the court, said: “When a deed was executed and delivered, conveying an unconditional fee-simple title to a tract of land, which contained the following words: ‘It being expressly understood by the parties that the said tract or parcel of land is not to be put to any other use than that of a depot square, and that no business or improvements are to be put on the said tract but that which is immediately connected with the Western and Atlantic Railroad:’ Held, that these words in the deed were words of covenant, and not words of condition, and that the plaintiff’s remedy for a breach thereof was an action thereon for damages, and not a forfeiture of the estate for condition broken.” And, in combating the contention of the plaintiff in error in the case last referred to, the court answered the question, “What is an estate upon condition?” with a definition of an estate on condition given by Blackstone, and which is in the following language: “An estate on condition, expressed in the grant itself, is where an estate is granted, either in fee simple or otherwise, with an express qualification annexed, whereby the estate granted shall either commence, be enlarged, or be defeated, upon performance or breach of such qualification or condition.”

Testing the deeds in this case by the rule laid down in the authorities which we have quoted and cited above, and which might be multiplied, the clauses in the deeds upon which the plaintiffs rely to recover the land involved in this suit do not, directly or by implication, impose a condition upon the grant made in the deeds. And we do not think it is necessary to decide whether, by the clauses in the deeds which we have had under consideration, the property conveyed was restricted to certain uses, as is contended in the second count of the plaintiffs^ declaration. For, even if a restriction is imposed by the language employed in the clauses referred to, the effect of such a restriction, we apprehend, would not be, in case the property were devoted to other uses than that contemplated in the deed, to work a forfeiture of the estate, as in the case of a violation of a condition subsequent, where forfeiture and re-entry are provided for; though it might in some cases be a basis for an action for damages or injunction. No ruling is made in the case of Jackson v. Dougherty County, 99 Ga. 185 (25 S. E. 625), contrary to what we have held above, even if certain language used in the second headnote would seem to indicate that the writer intended a different opinion.

Inasmuch as the right of the plaintiffs in the present case to recover depended upon giving to the two deeds referred to in the statement of facts a construction in accordance with their contention as set forth in the first count of the petition, and a contrary construction of those instruments being the proper one, under the doctrine which we have adhered to in this case, the court did not err in sustaining a general demurrer to the petition.

Judgment affirmed.

All the Justices concur.