Stolarick v. Stolarick ( 1976 )

WATKINS, President Judge

(dissenting).

In August of 1923 Steven Stolarick and Mary Stolarick, his wife, executed a deed conveying certain land situate in Lehman Township, Luzerne County, Pennsylvania, unto Mike Stolarick and John Stolarick, sons of the grantors. This deed was duly recorded on May 23, 1924. The handwritten deed contained the following conditions:

(1) The grantees were obligated to pay Steven Sto-larick the sum of Six dollars per acre per month and to provide him with board and a home as long as he lived.

(2) The grantees were to provide Mary Stolarick with a home and suitable clothing for life.

(3) The grantees were to furnish suitable clothing and a home for their sisters, Anna, Mary and Katie Stolarick, until they became twenty-one years of age.

(4) The grantees were to pay Steven Stolarick, Jr., the sum of One Hundred Dollars upon the death of the grantors.

(5) Upon the death of the grantors, the grantees were to pay their brothers, Andrew, Frank, Joseph and George, and their sisters, Anna, Mary and Katie, in equal shares, a sum of money not to exceed one-half of the value of the farm described in the deed.

(6) In the event that the grantees defaulted in any of the conditions of payment set forth in the deed, then the deed was to be voided and of no effect and the premises was to revert to the grantors.

Steven Stolarick, grantor, died in 1929 while residing on the premises. Mary Stolarick, grantor, died in 1953 while residing on the premises. The sisters of the grantees all resided on the farm until they reached twenty-one years of age. Mary C. Stolarick, appellant, daughter of the grantors, has resided on the premises continuously up to the present date. Mike Stolarick, one of the grantees, died in 1947 which was prior to his mother’s death in 1953, when the fourth and fifth conditions in the deed were to be performed. The interest of Mike in the premises passed to his mother, Mary Stolarick, grantor, under the intestate laws of the Commonwealth.

Mary Stolarick, original grantor, died in 1953 and her interest, which at that time was an undivided one-half, passed under her will unto Andrew Stolarick and Mary Stolarick, the appellant. John Stolarick, one of the original grantees, died on June 11, 1964, leaving his interest by will to John Stolarick and George Stolarick, his sons, the appellees in this action. Andrew Stolarick, brother of Mary, the appellant, died November 7, 1973, devising his estate unto Mary C. Stolarick, the appellant.

Mary C. Stolarick now contends that she is the sole owner of the premises because John Stolarick, one of the original grantees, under whom the appellees claim their interest, failed to perform certain conditions set forth in the original deed and therefore the premises reverted to Mary Stolarick, one of the original grantors, under whom Mary C. Stolarick claims her interest.

The court below held that appellant’s interest in the premises is an undivided one-half and that the appellees also have an undivided one-half interest. The court directed the owners of the premises to make the payments to the other family members as set forth in the deed.¹

Appellees assert that the appellant was guilty of laches because her mother died in 1953 and she did not take action as to the forfeiture of John Stolarick’s interest until 1974. Appellant contends that laches cannot be imputed to one in peaceful possession of land so that this contention falls because Mary C. Stolarick has lived on the premises continuously up until this time. Generally, lach-es will not be imputed to one in peaceful possession of land. Kutztown Fair Association v. Frey, 183 Pa. Super. 516, 132 A.2d 912 (1957), The appellees contend that the policy behind this rule is to protect those in peaceful possession by holding that the exercise of dominion over the land provides notice to all the world of that person’s interest in the premises. In the instant case the rule is not applicable because its reason does not exist. Mary continued to reside in her parents’ residence, a place where she has always resided. Thus her continued habitation did not provide “notice” to anyone as to the purported equitable interest in the land.

Since she lived in the premises since 1943, it must also be noted that she lived there with no interest at all until 1953 when her mother died and she was devised her interest in the land. Therefore, we agree with the appel-lees and the court below that it it hard to see how the appellant’s presence in the premises would provide notice to anyone of her present claim.

It is also true that laches will not be invoked unless some prejudice results to a party because of the delay. Grote Trust, 390 Pa. 261, 135 A.2d 383 (1957). It is apparent that such prejudice resulted to the appellees in the instant case since their father, under whom they claim their interest, died in 1964 and so is not available to testify as to any reasons that might have justified noncompliance with the deed provisions. Since Mary Stolarick, grantor, died in 1953, the appellant had eleven years in which she could have asserted her claim when the said John Stolarick was still alive. Yet she waited until 1974 after the death of Andrew (with whom she shared her interest) who devised his interest to her. Under such circumstances the court below was correct in holding the appellant guilty of laches.

Appellant also claimed that the court below erred when it held the burden to take the necessary steps to effect the reverter was upon the original grantors or upon their estates. Appellant reasons that it is uncontested that certain conditions set forth in the deed were not performed. All the grantor had to do to effectuate the re-verter was to enter into peaceful possession of the land and since appellant was the owner of the land and was an heir of the original grantors, the reverter took place automatically and no further action on the part of the appellant was necessary.

However, the right to assert a forfeiture may be waived by the grantor where the grantor (or as in this case, his heir) actively participates in the acts which constitute the breach of the conditions subsequent. Hitch-ner v. Gustainis, 56 Pa.D. & C. 545 (1946). In this well-reasoned case by a lower court it was held that one claiming the violation of a condition subsequent in building within fifty feet of a road in violation of a deed restriction will be estopped from asserting the reverter where that person took an active part in the construction which violated the deed.

In the instant case the appellant is in an anomalous position in that she “wears two hats”. On the other hand, as the heir of one of the original grantors, she is in a position to benefit from a reverter due to noncompliance with the deed provisions. On the other hand, as the heir of Mike Stolarick, one of the original grantees who predeceased Mary Stolarick, grantor, she inherited the duty to comply with the provisions in the deed herself in 1953 when her mother died. Therefore appellant, in 1953, was presented with two choices, viz, (1) she could comply with the deed provisions and help to make the appropriate payments to the designated persons, thereby defeating any reverter and securing her one-half undivided interest in the premises, or (2) she could refuse to comply with the deed provisions and thereby claim the entire premises as the heir of Mary Stolarick. She chose the latter option but did not begin any legal proceedings asserting her claim until after the death of Andrew Stolarick, co-heir of her mother. Thus by making no attempt to comply with the deed provisions herself she did actually help to bring about the conditions which could result in a reversion of the property to the grantors. As such she did participate in bringing about the conditions which constituted the breach of the condition subsequent and should not be able to benefit from her own wrongdoing.

Under these circumstances we would hold that the court below acted properly and equitably in returning to the deed in order to effectuate its intent which it correctly held to be that both grantees and their heirs were to have an interest in the premises so long as the appropriate payments to the designated persons were made and not that one person, appellant, was to have the entire premises.²

Finally, appellant complained that the court below made findings of fact that were not supported by the record. Specifically, appellant claimed that no evidence was produced showing that the original grantees, John Stolarick and Mike Stolarick, provided support for their parents as provided by the deed. However, the testimony revealed that both grantors resided on the farm until their deaths and had their needs met and that the grantees worked the farm and received no profit from it. In light of this we feel that the court below was justified in finding that the other conditions of the deed were met.

JACOBS and CERCONE, JJ., join in this dissenting opinion..

1 . This court recognizes the distinction between conveyances which provide for the possibility of reverter and cases where an automatic reverter takes place in the event of some occurrence. However, since this issue was not dealt with in the court below, we decline to pass upon its merits now.

2 . It is apparent that the deed in the instant case was actually an attempt by the grantors to devise their property after their death and, as such, was really a type of will.