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Preston v. Bosworth

Preston v. Bosworth, 153 Ind. 458 (1899)
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Court
Indiana Supreme Court · State Highest Courts
Decided
November 16, 1899
Docket
No. 19,132
Judges
Baker
Citations
153 Ind. 458
Disposition
Reversed.
Headnotes
Deeds.— Condition Subsequent.— Forfeiture.— Pleading. — A complaint in an action by grantor to recover the title to real estate alleged to have been forfeited by reason of the breach of a condition subsequent contained in the deed is insufficient, where it fails to allege reentry, or that reentry was prevented and that possession was demanded and refused.
Summary
From the Madison Circuit Court.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Baker

Text extracted by OCR from a scanned original; check the original for exact wording.

Baker, J.

Suit by appellee to recover an estate, claimed to have been forfeited by appellants by reason of the breach of a condition subsequent. Demurrer to complaint overruled. Trial and judgment for appellee. Motion for a new trial overruled.

The facts pleaded in the complaint are these: On May 19, 1892, appellee owned certain land in Madison county. On that day he executed to appellants a warranty deed of the., land. His wife, who has since died, joined in the conveyance. The statutory form for a warranty deed was used. Following the description of the land, appears this condition: “This conveyance is made to the grantees to enable them to *459 open and operate a well tliereon for medicinal water, gas or oil; and, if said wéll shall be at any time abandoned, the title shall at once revert to and vest in the grantors as heretofore held by them; and, as long as said well shall be used, the grantors shall have the privilege of taking water therefrom for the use of himself and family, but not for using oil or gas therefrom.” Appellants properly constructed a well to a proper depth, but failed to find medicinal water, gas, or oil. About September 1, 1892, appellants abandoned the well and land, gave up their intention to establish a well or to use the land, removed from this State, and have done nothing since towards improving the well or the land.

A breach of the condition subsequent is pleaded. But a breach does not complete a forfeiture. A breach may be waived, and is not, therefore, self-operative to devest the grantee’s title. If not waived, a breach may be made the occasion of reentry and enforcement of forfeiture. A complaint must exhibit a complete right of action. Eor failure to allege reentry, or its equivalent (that reentry was prevented and that possession was demanded and refused), this complaint is deficient. Schuff v. Ransom, 79 Ind. 458 ; Cory v. Cory, 86 Ind. 567 ; Ellis v. Elkhart, etc., Co., 97 Ind. 247 ; Elkhart, etc., Co. v. Ellis, 113 Ind. 215 ; Manifold v. Jones, 117 Ind. 212 .

As a new trial can not be had upon this complaint, it is unnecessary to consider the grounds of the motion.

Judgment reversed, with directions to sustain the demurrer to the complaint.

How later courts describe this case

Explanatory parentheticals written by citing courts — 1 in all; the most informative distinct ones are shown.

Cited by 11 cases

View all citing references →
1900: 11902: 11903: 11904: 11912: 11920: 21924: 11947: 11957: 12015: 119002026peak 1920 · 2

Relies on it most ⓘ

  1. Van Horn v. Mercer64 N.E. 531 (Ind. Ct. App. 1902)
  2. Gadbury v. Ohio & Indiana Consolidated Natural & Illuminating Gas Co.62 L.R.A. 895 (Ind. 1903)
  3. Sheets v. Vandalia Railway Co.127 N.E. 609 (Ind. Ct. App. 1920)
  4. Pence v. Tidewater Townsite Corp.103 S.E. 694 (Va. 1920)
  5. East Tennessee & W. N. C. R. v. Gouge203 S.W.2d 170 (Tenn. Ct. App. 1947)
  6. Brady v. Gregory97 N.E. 452 (Ind. Ct. App. 1912)

Most recent

  1. Memmer v. United States122 Fed. Cl. 350 (Fed. Cl. 2015)
  2. Tibbetts v. KRALL145 N.E.2d 577 (Ind. Ct. App. 1957)
  3. East Tennessee & W. N. C. R. v. Gouge203 S.W.2d 170 (Tenn. Ct. App. 1947)
  4. Ralston v. Hatfield143 N.E. 887 (Ind. Ct. App. 1924)
  5. Pence v. Tidewater Townsite Corp.103 S.E. 694 (Va. 1920)
  6. Sheets v. Vandalia Railway Co.127 N.E. 609 (Ind. Ct. App. 1920)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 5

DepthCaseCited by
Elkhart Car Works Co. v. Ellis, 15 N.E. 249 (Ind. 1888) 24
Schuff v. Ransom, 79 Ind. 458 (1881) 22
Ellis v. Elkhart Car Works Co., 97 Ind. 247 (1884) 13
Cory v. Cory, 86 Ind. 567 (1882) 11
Manifold v. Jones, 20 N.E. 124 (Ind. 1889) 5

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