ROSS v. SANDERSON

ROSS v. SANDERSON
1917 OK 57
162 P. 709
63 Okla. 73
Case Number: 6888
Decided: 01/09/1917
Supreme Court of Oklahoma

ROSS et al.
v.
SANDERSON.

Syllabus

¶0 1. Equity--Breach of Condition Subsequent--Quieting Title. Notwithstanding its abhorrence of forfeitures, a court of equity will take jurisdiction, not to declare a forfeiture, but to quiet a title already forfeited for nonperformance of a condition subsequent, when the plain language of the instrument shows that it was the purpose of the parties to declare that a breach should operate as a forfeiture.
2. Deeds-- Condition Subsequent--Effect. Where a condition subsequent is raised by apt and sufficient words, the estate conveyed remains defeasible until the condition be performed, destroyed, or barred by the statute of limitation, or by estoppel.
3. Same--Breach of Condition--Action-- Prerequisites. By the weight of authority, an action may be maintained, possessory or otherwise, upon the breach of a condition subsequent, without re-entry, demand, or possession, or notice of forfeiture; the commencement of an action being deemed equivalent thereto.
4. Same--Waiver of Breach. Generally, the breach of a condition subsequent may be waived by acts showing an intention to continue the estate in the grantee, but no waiver is occasioned by mere indulgence, or mere silent acquiescence, where it does not appear that the grantee understood there was a waiver, or that he relied thereon in proceeding to do the act claimed to operate as a forfeiture.
5. Quieting Title--Condition Subsequent--Forfeit-- Judgment. Record examined, and held that, in view of the purpose of the forfeiture clause and the facts and circumstances of the case, the portion of the judgment which requires the defendant to replace upon the lots the build. ing, the erection of which breached the condition subsequent, which was removed therefrom during the pendency of the suit, or pay the plaintiff the value thereof, is inequitable and should be set aside.

A. J. Biddison and Harry Campbell, for plaintiffs in error.
Davidson & Williams, for defendant in error.

KANE, J.

¶1 This was a suit in equity commenced by the defendant in error, plaintiff below, against the plaintiffs in error, defendants below, for the purpose of quieting a title forfeited for nonperformance of a condition subsequent contained in a deed. Upon trial to the court there was a decree in favor of the plaintiff, to reverse which this proceeding in error was commenced. Hereafter the parties will be designated "plaintiff" and "defendants," respectively, as they appeared in the court below. It seems that the plaintiff was the owner of certain lands which he platted into all addition to the city of Tulsa, known as "Beuna Vista Park addition." The lots in question, together with a large number of other lots in the same addition, were conveyed by the plaintiff by quitclaim deed to J. Fred Dee for a stated money consideration of one dollar, subject, however, to the following conditions and restrictions:

"All buildings erected on above described lets to have a foundation not less than 20x30 feet in size; studding on said building not to be less than 16 feet high, and no house erected on said lots to cost less than two thousand dollars, and that no building shall be erected on said lots to be nearer than 25 feet from front lot line, without the consent of grantor in writing. Any violations of the foregoing conditions and restrictions by the grantee, his heirs or assigns, shall work a forfeiture to all title in and to said lots and that the above conditions and restrictions shall extend to and are hereby made obligatory upon the party of the second part, his heirs and assigns forever, together with all and singular the hereditaments and appurtenances thereunto belonging."

¶2 The deed containing this restriction was duly recorded in the proper office; and thereafter Dee conveyed the lots in controversy herein to H., who breached the condition subsequent, by nonobservance of its terms as to certain buildings which he erected on the lots. Thereafter the lots were conveyed by H. to these defendants, who were the owners at the time this suit was commenced, some four years after the condition subsequent had been breached. Counsel for defendants summarize their grounds for reversal substantially as follows. (1) A court of equity will not interfere on behalf of a party entitled thereto for the purpose of enforcing a forfeiture. (2) That defendant in error Sanderson by his conduct estopped himself from enforcing said forfeiture. (3) Defendants in error claimed that the plaintiffs in error had violated the building restrictions in the deed by having a house on the lots of smaller dimensions than those required by the deed, and the defendants in error did not claim to be in possession of the lots, nor did they claim to have ever made any re-entry or demand for possession of the lots; and equity will not grant them relief while they are out of possession and until they have made re-entry or done some act equivalent thereto. It is true that conditions subsequent working a forfeiture of the estate conveyed should be strictly construed, as such conditions are not favored in either law or equity. But, notwithstanding its abhorrence of forfeitures, a court of equity will take jurisdiction, not to declare a forfeiture, but to quiet a title already forfeited for nonperformance of a condition subsequent, when the plain language of the instrument shows that it was the purpose of the parties to declare that a breach should operate as a forfeiture. Shannon v. Long, 180 Ala. 128, 60 So. 273; Quatman v. McCray, 128 Cal. 285,

"The weight of authority, however, * * * seems to be that an action may * * * be maintained, possessory or otherwise, upon the breach of a condition subsequent, without a re-entry, demand of possession, or notice of forfeiture; the commencement of an action being deemed equivalent thereto."

¶3 The following authorities are in point to the same effect: Union P. R. Co. v. Cook, 98 F. 281, 39 C. C. A. 86; Ritchie v. Kansas, N. & D. R. Co., 55 Kan. 36,

¶4 With the modification above suggested, the judgment of the court below will be affirmed.

¶5 All the Justices concur.