Sherill v. Sherill

SOMERVILLE, J.

On the undisputed evidence in this case we think and hold that complainants were (entitled to the relief prayed.

The estate granted by Mary J. Swinney and her children to the respondents S. O. and M. A. Sherill, though a vested estate, was expressly subjected to forfeiture in ease the grantees should “fail to carry out any part” of the obligation undertaken by them, viz. the support and care of Mrs. Swinney during the remainder of her life. The estate was therefore one upon condition subsequent.

Such an estate is not divested from the grantee merely by the grantee’s breach of the condition, but continues until “the grantor or his heirs take advantage of the breach of the condition, and make an entry or claim in order to avoid the estate.” 21 Corp. Jur. 930, § 41, and cases cited under note 81. An estate upon condition subsequent has, until defeated by breach and entry, the same qualities and incidents as absolute estates. Memphis, etc., R. Co. v. Neighbors, 51 Miss. 412 ; Warner v. Bennett, 31 Conn. 468 ; 21 Corp. Jur. 930, § 39. But if they are conveyed or devised they pass subject to the condition. Brown v. State, 5 Colo. 496 ; Memphis, etc., R. Co. v. Neighbors, supra; 21 Corp. Jur. 930, § 39. This last proposition is of course elementary, since a grantor can convey no better title than he has, and no condition would be worth the while, if the grantee could-avoid its operation and effect by the simple expedient of alienation before he has breached the condition.

The case of First Nat. Bank v. McIntosh, 201 Ala. 649 , 79 South. 121 , L. R. A. 1918F, 353, is not different from the instant case in any material aspect. It was there held'that the mortgagee of the conditional grantee was chargeable with constructive notice of the condition recited in the recorded deed to his mortgagor, and relief by cancellation was decreed against the vendee and his mortgagee, for the vendee’s breach of the condition.

No question of laches, is presented, and that subject requires no notice here. The decree of the circuit court will be reversed, and a decree will be here rendered, granting to complainants the relief prayed for by the cancellation of the deeds shown as Exhibits A and B to the bill, and of the mortgage shown as Exhibit D to the bill, in so far as they affect the title to the land conveyed to complainants by the deed shown as Exhibit 0 to the bill. The registrar will be directed to make the appropriate entries of cancellation on the face of the records of the instruments ordered canceled.

Reversed and rendered.

ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.