Helms v. . Helms , 137 N.C. 206 ( 1904 )

CLARK, C. J., and DOUGLAS, J., dissenting. We directed a rehearing of this case upon the (207) question raised by the defendants' exception to the refusal to submit the issue in regard to the alleged mistake of the parties and draftsman in failing to insert in the deed certain parts of the contract. We have examined the authorities with care, and, with all possible difference to the learned gentlemen of the bar who differ from us, we are unable to see any error in our former decision. The counsel thus clearly state their contention: "Suppose the words alleged to have been omitted were actually in the deed, then we would have the stipulation that the deed is made in consideration of the support during the natural life of the party of the first part by the party of the second part, . . . and it is further understood and agreed between the parties that the above land shall standgood for the support and maintenance of the said Elmira Helms during her natural life, and if the said W. L. Helms fails to support her, then this deed is to be void." This, they say, would clearly express the intention that the support was a condition precedent. We think that the contrary intention is manifest. The consideration is the support — the land is to "stand good," that is, to be charged with the support — and by the failure to support the grantor the deed is to be void. An estate is granted; apt and appropriate words are used for that purpose. The grantee is to do something in the future as the consideration. No words appropriate to making a condition precedent are used — as "if he shall support" or "provided he support" — but "in consideration of the support," that is, his undertaking to support. The charge is made, that is, the land is to "stand good," be liable for, etc. Then follow the words, if inserted, "If he fails to support, this deed is to be void." These are apt words to create a condition subsequent. If no title was to pass, then there was no necessity for declaring that the deed should be void.

(208) In Nicoll v. R. R., 12 N.Y. 121, the deed was made upon the express condition that the grantee should build a railroad track, . . . and the Court said that "This was not a condition precedent, as was argued by plaintiff's counsel, but a condition subsequent. The fee vested at once, subject to being divested on a failure to perform the condition." Marshall, C. J., said: "If the act on which the estate depends does not necessarily precede the vesting of the estate, but may accompany or follow it, if this is to be collected from the whole instrument, the condition is subsequent." The deed is not made to take effect upon the happening of a certain event, but in presenti, and is to be divested by the grantee's failure to perform the condition.

Land was devised "provided a schoolhouse is built." Held, a condition subsequent. Hayden v. Stroghton, 22 Mass. 528. To construe the language as creating a condition precedent would lead to the singular result of postponing the vesting of any title until Elmira Helms died; hence a failure to support her to the last moment of her life would prevent the estate vesting, because the rule is well settled that conditions precedent must be literally and punctually performed. 13 Cyc., 688. We fail to find any authorities supporting the position that such language creates a condition precedent.

While it is true that the intent must control, it is equally true that the intent must be gathered from the whole instrument. The defendants' counsel say, however, that the doctrine that none but the grantor can take advantage of the breach of the condition is no longer law. We find in 13 Cyc., 689, the law laid down as held by the Supreme Court of the United States as late as 1878: "If the condition subsequent is broken, that did not ipso facto produce a reverter of the title. The estate continued in full force until the proper step was taken to consummate the forfeiture. This could be done only by the grantor during his lifetime and after his death by those in privity of (209) blood with him. In the meantime, only the right of action subsisted, and that could not be conveyed so as to vest the right to sue in a stranger." Rush v. R. R., 97 U.S. 613; 1 Jones on Conveyances, 728;Nicoll v. R. R., supra, where the question is discussed and decided. But where a fee simple without a reservation of rents is granted upon a condition subsequent, as in this case, there is no estate remaining in the grantor. There is simply a possibility of reverter, but that is no estate. There is not even a possibility coupled with an interest, but a bare possibility alone. It has been said that such possibilities were assignable in equity; but those were interests of a very different character.Chancellor Kent says: "A court of equity will never lend its aid to divest an estate for the breach of a condition subsequent." 4 Kent Com., 130.

While it is true that contingent interests and choses in action are assignable in equity, and under our Code actions may be brought in the name of the assignee, we find no case holding that a bare possibility of reverter comes within this principle. We have carefully examined the case of Cross v. Carson and notes, 44 Am. Dec., 742, and find nothing therein inconsistent with the trend of authority on the subject.

The petition to rehear must be dismissed.

Petition dismissed.