Jeffery v. Graham , 1884 Tex. LEXIS 128 ( 1884 )

Walker, P. J. Com. App.—

The court did not err in overruling the defendant’s exceptions to the petition, nor in rendering judgment on the merits of the case under the evidence for the plaintiff.

The estate conveyed by the deed was on a condition subsequent. The form or connection in which the condition is made to appear-in the deed is not material, if from the instrument it appears that the intention of the grantor as expressed in it was to convey an estate defeasible on the happening of a condition which he might, lawfully annex to the grant of the title. The conditions which were prescribed were lawful and were not against public policy, and annexed to their non-fulfilment was the express declaration that the deed of conveyance should be null and void, and that the premises conveyed should absolutely revert to the grantor.

Although conditions subsequent in conveyances of land are not viewed with favor, yet where the condition is in its nature executory, it is to be distinguished, in regard to its absoluteness and effect, from those limitations or conditions in a deed which merely stipulate for the doing or not doing of specified things by the grantee for the breach of which no forfeiture of the estate ensues, and the grantor is left to pursue his remedy for it in an action for damages caused thereby.

“ If one makes a feoffment in fee, that the feoffor shall do or nob do such an act, these words do not make the estate conditional, but it is absolute notwithstanding. . . . So if the supposed condition of an executed grant amounts to an agreement on the part of the grantee to do certain things, it will not be held to defeat the estate if be fails to perform. In order that the condition in such case should defeat the estate, the grant must be in its nature executory.” 2 Wash. on Real Prop., 6.

The grantor, in this case, in making this contract with the defendant, had in contemplation the advancement and settlement of a new town, in which other lots or parcels of land owned by him were to be affected in value and salability by the character of improvements made upon, and the manner of use to be made of, the lot sold to the defendant, and such considerations, it may be supposed, entered into the consideration of the transaction in question; and in that sense it may be deemed that the grant made to the defendant was in its nature executory.

We are of opinion that there was no error, and the judgment ought to be affirmed.

Affirmed.

[Opinion adopted April 29, 1884.]