2020 Georgia Code
Title 44 - Property
Chapter 6 - Estates
Article 3 - Estates Granted Upon Conditions
§ 44-6-41. Conditions Precedent and Subsequent Distinguished; Preferred Construction and Remedy

Conditions may be either precedent or subsequent; conditions precedent require performance before the estate shall vest, and conditions subsequent may cause a forfeiture of a vested estate. The law favors conditions to be subsequent rather than precedent and to be remediable by damages rather than by forfeiture.

(Orig. Code 1863, § 2276; Code 1868, § 2269; Code 1873, § 2295; Code 1882, § 2295; Civil Code 1895, § 3137; Civil Code 1910, § 3717; Code 1933, § 85-902.)

- For article discussing problems in construction of instrument conveying gift to a group or class, see 6 Ga. St. B.J. 169 (1969).

ANALYSIS

• General Consideration
• Conditions Precedent
• Conditions Subsequent
• Remedies

General Consideration

Estate vested when immediate or fixed right of enjoyment.

- An estate is vested when there is an immediate right of enjoyment, or a present fixed right of future enjoyment. Lassiter v. Bank of Dawson, 191 Ga. 208, 11 S.E.2d 910 (1940).

Cited in Grantham v. Royal Ins. Co., 34 Ga. App. 415, 130 S.E. 589 (1925); Roberts v. Hardin, 179 Ga. 114, 175 S.E. 362 (1934); Perkins v. Citizens & S. Nat'l Bank, 190 Ga. 29, 8 S.E.2d 28 (1940); Hogan v. Brodgon, 194 Ga. 474, 22 S.E.2d 54 (1942); Mendel v. Pinkard, 108 Ga. App. 128, 132 S.E.2d 217 (1963); Churches Homes for Bus. Girls, Inc. v. Manget Found., Inc., 110 Ga. App. 539, 139 S.E.2d 138 (1964); Raby v. Minshew, 238 Ga. 41, 231 S.E.2d 53 (1976).

Conditions Precedent

Vesting of prior estate dependent upon prescribed event not condition precedent.

- Generally where a prior estate is made to depend upon any prescribed event, and the second estate is to arise upon the determination of that event, the vesting of the prior estate is not to be taken as a condition precedent, but upon its failure the second estate takes effect. Jossey v. Brown, 119 Ga. 758, 47 S.E. 350 (1904).

- Stipulation in an instrument conveying timber, providing for part payment down and the remainder upon entering to cut, does not make payment of the balance a condition precedent to the entering to cut. McRae v. Stillwell, Millen & Co., 111 Ga. 65, 36 S.E. 604, 55 L.R.A. 513 (1900).

Under Georgia law, conditions precedent were disfavored and a contractual provision was interpreted as a condition precedent only if it is clear that the parties intended it to operate that way; because the program agreements did not indicate that the parties intended the monthly billing requirement to be a condition precedent to the company's reimbursement obligation, the court would not treat it as one. Williams Serv. Group v. Nat'l Union Fire Ins. Co., F.3d (11th Cir. Oct. 23, 2012)(Unpublished).

- When a testator directs that his executors shall furnish to his wife a home to be selected by her and to be her property, to be used as a home for herself and his minor children and any other of his children who may desire to reside there, such gift is absolute and unconditional; and failure of the wife to select the home during her life will not defeat the legacy, the right of section of the home not being a condition precedent, the nonperformance of which will defeat the gift. Hilton v. Sherman, 155 Ga. 624, 118 S.E. 356 (1923).

- Lease provision requiring lessor to modify building in accordance with blueprint and city requirements was a covenant, and not words of condition; the remedy for a breach was an action for damages, not a forfeiture of the estate for condition broken. Fulton County v. Collum Properties, Inc., 193 Ga. App. 774, 388 S.E.2d 916 (1989).

Conditions Subsequent

1. Rules of Construction

- Estate for years may be made to terminate upon contingency or condition subsequent. P.H. Snook & Austin Furn. Co. v. Steiner & Emery, 117 Ga. 363, 43 S.E. 775 (1903).

- While it is not always easy to determine whether the condition created by the terms of a conveyance is precedent or subsequent, the general rule is that if the act or condition required does not necessarily precede the vesting of the estate, but may accompany or follow the estate, and if the act may as well be done after as before vesting of the estate, or if from the nature of the act to be performed, it is evidently the intention of the parties that the estate shall vest and the grantee perform the act after taking possession, then the condition is subsequent. Gordon v. Whittle, 206 Ga. 339, 57 S.E.2d 169 (1950).

Conditions subsequent are construed strictly, because conditions tend to destroy estates, and the rigorous exaction of the conditions is a species of summum jus, and in many cases hardly reconcilable with conscience. If it is doubtful whether a clause in a deed is a covenant or a condition, the courts will incline against the latter construction, for a covenant is far preferable to the tenant. Doe v. Roe, 39 Ga. 202 (1869).

- Difference between a limitation and a condition subsequent is that in the latter the grantor must reenter, or make a claim in case reentry is impossible or impracticable. In case of a condition at common law, the grantor or the grantor's heirs alone can defeat the estate by entry for condition broken. In a conditional limitation, the estate determines, ipso facto, upon the happening of the event, and goes over at once to the grantor by reverter, or to the person to whom it is limited upon the happening of the contingency. Atlanta Consol. S. Ry. v. Jackson, 108 Ga. 634, 34 S.E. 184 (1899).

- If, upon a strict construction of a deed in its entirety (there being no express words of defeasance), it should be doubtful whether the instrument created an estate upon a condition subsequent, or the words employed imported a covenant, the latter construction should be adopted. Fulford v. Fulford, 225 Ga. 9, 165 S.E.2d 848 (1969).

- When a deed purports to convey a fee simple title and there is no provision in the deed for a forfeiture of the estate or a reversion to the grantor in the event the grantee conveyed the property to another without the consent of the grantee's brothers, restrictive words in the deed are words of covenant and not a condition subsequent. Fulford v. Fulford, 225 Ga. 9, 165 S.E.2d 848 (1969).

- Deed will not be construed as a grant on condition subsequent unless the language used by express terms creates an estate on condition, or unless the intent of the grantor to create a conditional estate is manifest from a reading of the entire instrument. Thompson v. Hart, 133 Ga. 540, 66 S.E. 270 (1909); Self v. Billings, 139 Ga. 400, 77 S.E. 562 (1913); Johnson v. Hobbs, 149 Ga. 587, 101 S.E. 583 (1919); Jones v. Reid, 184 Ga. 764, 193 S.E. 235 (1937); Gordon v. Whittle, 206 Ga. 339, 57 S.E.2d 169 (1950); Fulford v. Fulford, 225 Ga. 9, 165 S.E.2d 848 (1969); DOT v. Knight, 238 Ga. 225, 232 S.E.2d 72 (1977).

Technical words are not required to create condition subsequent. Jones v. Williams, 132 Ga. 782, 64 S.E. 1081 (1909).

- Authorities generally agree that the construction must depend upon the intention of the parties as gathered from the whole instrument; technical rules of construction are to be disregarded when obedience to such rules would defeat the intention of the parties. Mayor of Gainesville v. Brenau College, 150 Ga. 156, 103 S.E. 164 (1920).

No precise technical words are required to create a condition subsequent; and the construction must always be founded upon the intention of the parties as disclosed in the conveyance. Lucas v. Lucas, 171 Ga. 806, 156 S.E. 680 (1931); Rustin v. Butler, 195 Ga. 389, 24 S.E.2d 318 (1943).

Words used may serve as guides to construction. Words of time, such as "so long as," "while," "until," and "during," usually denote limitation. Words of qualification or condition, such as "provided" and "upon condition," are most often used to create conditions subsequent. DOT v. Knight, 238 Ga. 225, 232 S.E.2d 72 (1977).

- Important consideration in determining whether clause is condition subsequent is presence of reentry clause by the grantor or the grantor's heirs. Floyd v. Hoover, 141 Ga. App. 588, 234 S.E.2d 89 (1977).

Words "to make right of way for said road" do not alone create conditional estate. DOT v. Knight, 238 Ga. 225, 232 S.E.2d 72 (1977).

Conditions subsequent in deeds, although not favored, will be enforced by the court when the conditions are clearly created and are not inconsistent with the other terms of the conveyance, and are not rendered impossible by act of God or by subsequent conduct of the grantor. Evans v. Brown, 196 Ga. 364, 27 S.E.2d 300 (1943).

- If condition subsequent exists, mere possibility of reverter which remains is not an estate in land and is not subject to taxation. Moss v. Chappell, 126 Ga. 196, 54 S.E. 968, 11 L.R.A. (n.s.) 398 (1906); Wadley Lumber Co. v. Lott, 130 Ga. 135, 60 S.E. 836 (1908); Mayor of Gainesville v. Brenau College, 150 Ga. 156, 103 S.E. 164 (1920).

2. Illustrative Cases

Condition subsequent found.

- Instrument showed that the contract was for a sale of machinery and an interest in land for the purpose of maintaining and operating a gin at the designated location, upon condition subsequent that the location should revert to the owner of the balance of the tract when the buyer should cease to use the tract for such purpose. Doe v. Roe, 39 Ga. 202 (1869); P.H. Snook & Austin Furn. Co. v. Steiner & Emery, 117 Ga. 363, 43 S.E. 775 (1903); Jones v. Williams, 132 Ga. 782, 64 S.E. 1081 (1909); Thompson v. Hart, 133 Ga. 540, 66 S.E. 270 (1909); Lawson v. Georgia S. & F. Ry., 142 Ga. 14, 82 S.E. 233 (1914); Hilton v. Central of Ga. Ry., 146 Ga. 812, 92 S.E. 642 (1917); Davis v. Jones, 153 Ga. 639, 112 S.E. 891 (1922).

Although the words "condition precedent" may be used in a will in connection with a bequest of income, yet when the duty imposed was a continuing one of furnishing the testator's child with a home in a benevolent institution and caring for the child "as comfortably as the facts and circumstances of the case will warrant," when the corpus was given to the institution in remainder, after the death of the child, provided a Christian burial should be given to the child, and when from the entire will it is apparent that the estate was not intended to be left to the legatee upon a condition precedent, properly so called, the title will be construed to have vested, and the condition for support, made in connection with the bequest of the income, will be held to be in the nature of a condition subsequent. Winn v. Tabernacle Infirmary, 135 Ga. 380, 69 S.E. 557, 32 L.R.A. (n.s.) 512 (1910).

Conveyance upon condition that the grantee assume certain indebtedness, and if the grantee fails, to revert, creates a condition subsequent. Mayor of Gainesville v. Brenau College, 150 Ga. 156, 103 S.E. 164 (1920).

Devise of land in fee with a condition subsequent inhibiting alienation to the wife of the devisee or her children directly, or indirectly as by "any legal proceedings or order of court," as the restriction against alienation was limited to one person and her children and did not extend generally to all persons was valid as against the objection that it was repugnant to the estate devised, nor was it void on the ground that it was repugnant to the nature of the estate granted, contrary to law, contrary to public policy, or prevented performance of parental duties. Blevins v. Pittman, 189 Ga. 789, 7 S.E.2d 662 (1940).

When the grantor put into a deed of property for a school the condition that "should the same not be used for school purposes," the title was to revert, there arose a condition subsequent with a right of reentry on abandonment of the property for school uses. Rustin v. Butler, 195 Ga. 389, 24 S.E.2d 318 (1943).

Provision in a deed granting land for a schoolhouse and yard so long as it was used for school purposes creates an estate upon a condition subsequent, upon the breach of which the land would revert to the grantor, the grantor's estate, or heirs. Williams v. Thomas County, 208 Ga. 103, 65 S.E.2d 412 (1951).

- In the case of Moss v. Chappell, 126 Ga. 196, 54 S.E. 968, 11 L.R.A. (n.s.) 398 (1906), it appears that the deed to the railroad company conveying the land in controversy contained this provision: "provided that should said strips of land cease to be used for railroad purposes, it shall revert to the grantors." And it was held that the words created a condition subsequent, a breach of which would work a forfeiture. The deed under consideration in the present case contains no such stipulation. Harrold v. Seaboard Air-Line Ry., 131 Ga. 360, 62 S.E. 326 (1908).

When an owner of land conveys the land to a city, and states in the deed that the land is to be used for a specified purpose, the owner may have such an interest as to prevent the land's sale or diversion from that purpose to others, or perhaps the owner may have an action of covenant. But such language alone does not create a condition subsequent, on breach of which a forfeiture results and the original owner may recover the land. City of Atlanta v. Jones, 135 Ga. 376, 69 S.E. 571 (1910). See also Wadley Lumber Co. v. Lott, 130 Ga. 135, 60 S.E. 836 (1908).

Conveyance by warranty deed to the Board of Education of Stewart County of an acre of land, in consideration of $5.00 to the grantor in hand paid, the land "to be used by said board of education as a public school for whites," with the habendum clause, "to have and to hold the same for the uses aforesaid forever," did not create an estate upon a condition subsequent, or an estate with a conditional limitation; such conveyance does not convey a mere easement, and an implied trust did not arise in favor of the grantor in this deed from the fact that the board of education had discontinued the operation of a school for whites on this lot. Heyward v. Hatfield, 182 Ga. 373, 185 S.E. 519 (1936).

Deed that the grantor, in consideration of payment by the grantees of a certain indebtedness and of their support and maintenance of the grantor during the remainder of the grantor's life, conveyed the described premises, but did not create a condition subsequent which, upon failure of the grantees to support and maintain the grantor, would result in a forfeiture of the estate conveyed, but such language created a covenant binding the grantees therein to perform; upon their failure to perform, if the grantor had been in life, the grantor might have rescinded the contract by restoring to the grantees that part of the consideration represented by the payment of the indebtedness, offset by any profits they might have derived from the conveyance to them. Jones v. Reid, 184 Ga. 764, 193 S.E. 235 (1937).

When the deed did not expressly state a condition that the breach thereof should cause forfeiture of the estate granted, the clause as to providing a home and necessaries of life for the grantor might, by acceptance of the deed and entry of possession thereunder, become binding upon the grantee as a covenant, but the deed did not create a condition subsequent, the breach of which would cause a forfeiture or termination of title conveyed by the deed. Arrington v. Arrington, 189 Ga. 725, 7 S.E.2d 665 (1940).

When a deed in consideration of $10.00 was executed by a corporation and delivered, purporting to convey fee simple title to a tract of land, which deed contained an agreement that the property "will be used for county school purposes only, and should this provision be violated, the grantor herein shall have the right to purchase the above property for $2,000.00," this clause did not create a conditional estate dependent upon a condition subsequent. Gearhart v. West Lumber Co., 212 Ga. 25, 90 S.E.2d 10 (1955).

Forfeitures are not favored. Goss v. Finger, 28 Ga. App. 410, 111 S.E. 212 (1922).

Forfeitures are abhorred in equity and are favored in law, and provisions for forfeitures are regarded with disfavor and construed with strictness, when applied to contracts and the forfeiture relates to a matter admitting of compensation or restoration. When adequate compensation can be made, the law in many cases and equity in all cases discharges the forfeiture upon such compensation being made. The law inclines to remedy breach of condition by damages rather than by forfeiture. Hays v. Jordan & Co., 85 Ga. 741, 11 S.E. 833, 9 L.R.A. 373 (1890).

Law does not incline to construe conditions or covenants so as to work a forfeiture. City of Atlanta v. Jones, 135 Ga. 376, 69 S.E. 571 (1910).

Forfeiture provisions in contracts are not favored, and the law inclines to construe such conditions as remediable by damages rather than by forfeiture. J.G.T., Inc. v. Brunswick Corp., 119 Ga. App. 719, 168 S.E.2d 847 (1969).

Courts of equity have struggled hard to construe conditions subsequent into covenants, and send the party aggrieved to law to get the party's damages for the nonperformance. Taylor v. Sutton, 15 Ga. 103, 60 Am. Dec. 682 (1854).

- In leases of lands for mining purposes, when the rent reserved is a royalty, the courts do not hesitate, but look with favor upon provisions for forfeiture for nonexploitation. Such a covenant is a condition, the breach of which works a forfeiture. Duncan v. Campbell, 154 Ga. 824, 115 S.E. 651 (1923).

Equity seeks to relieve against forfeitures when rules of construction will allow. Kiser v. Warner Robins Air Park Estates, Inc., 237 Ga. 385, 228 S.E.2d 795 (1976).

- If parties desire that a forfeiture shall result, or that an estate shall terminate because of breach of covenant or failure to use property for the purpose mentioned in the deed, the parties should so state. City of Atlanta v. Jones, 135 Ga. 376, 69 S.E. 571 (1910).

- Law inclines to construe conditions subsequent so as to render their breach remediable in damages rather than by forfeiture, but when the plain words of the grant declare that a breach of the condition shall defeat the estate granted, there is no room for construction. Jones v. Williams, 132 Ga. 782, 64 S.E. 1081 (1909).

It is true that the law inclines to construe conditions to be subsequent rather than precedent, and to be remediable by damages rather than by forfeiture. But when the parties expressly stipulate for forfeiture for breach of covenant, and when precise compensation cannot be made for such breach, the forfeiture will be enforced. While equity generally abhors a forfeiture, it does not do so when the forfeiture is equitable and just, and when the enforcement of the forfeiture is the only means of protecting the landowner against the laches of the lessee, and when the lease is of no value to the landowner until developed. Duncan v. Campbell, 154 Ga. 824, 115 S.E. 651 (1923).

Condition subsequent, with right of reentry, and forfeiture of the estate conveyed to the grantee, is not void because it could work a forfeiture. If a valid limitation imposed against alienation is interwoven with, so as to constitute a part of, the grant itself, the grant will be treated as a defeasible estate, and upon the inhibition being violated, the estate conveyed is forfeited and terminates. Floyd v. Hoover, 141 Ga. App. 588, 234 S.E.2d 89 (1977).

- When land is conveyed to be used for a certain purpose, with a clause of forfeiture if it cease to be used for the object specified, the whole estate does not cease if the land is permitted to be put to a minor use, provided that in the main the land is used for the purpose for which the land was conveyed. Lawson v. Georgia S. & F. Ry., 142 Ga. 14, 82 S.E. 233 (1914); Hilton v. Central of Ga. Ry., 146 Ga. 812, 92 S.E. 642 (1917).

- Breach of a condition subsequent in a deed does not, of itself alone, defeat the grantee's estate nor revest title in the grantor until after entry or recovery in an action brought by him or his heirs; and the same rule is applicable in case of the lease of realty for a term of years. Peacock & Hunt Naval Stores Co. v. Brooks Lumber Co., 96 Ga. 542, 23 S.E. 835 (1895).

When a conveyance of land is made upon a condition subsequent, the fee remains in the grantee until a breach of condition and a reentry by the grantor. Wadley Lumber Co. v. Lott, 130 Ga. 135, 60 S.E. 836 (1908).

- As was said in Moss v. Chappell, 126 Ga. 196, 54 S.E. 968, 11 L.R.A. (n.s.) 398 (1906), "forfeitures resulting from the breach of a condition may be expressly released, or may be the subject of a waiver, and a waiver may result from circumstances, as well as express language to that effect." All this is well settled, and when the release or waiver extends to the whole forfeiture, all benefit to be derived from the forfeiture is gone. Jones v. Williams, 132 Ga. 782, 64 S.E. 1081 (1909); Wilkes v. Groover, 138 Ga. 407, 75 S.E. 353 (1912).

- When there are no express words of defeasance, forfeiture, or reversion, words in a deed will be construed as words of covenant and not words of condition. The remedy for a breach by one having the right to enforce the same is an action for damages and not a forfeiture of the estate for condition broken. Fulford v. Fulford, 225 Ga. 9, 165 S.E.2d 848 (1969).

- When the consideration recited in a deed is "one dollar, furnishing grantor a home, food, medicine, doctor's bills, hospital bills, burial expenses, and all the other necessities of life during grantor's lifetime," and the grantee has failed and refused to furnish the grantor the specified items, ordinarily the remedy of the grantor is an action for damages. Dumas v. Dumas, 205 Ga. 238, 52 S.E.2d 845 (1949).

When the consideration of a deed is a promise by the grantee to support the grantor and the grantee breaches the contract, ordinarily the remedy of the grantor would be an action for damages. Dillard v. Brannan, 217 Ga. 179, 121 S.E.2d 768 (1961).

- Forfeitures are abhorred in equity and are never favored in law, and a contract will not be construed so as to work a forfeiture, unless the terms of the contract plainly require such construction. It is not at all likely that the parties to this contract intended that the land conveyed, which according to the evidence was worth several times the amount of the debt, should vest absolutely in the creditor upon the failure to pay the debt on the day the debt fell due; and the terms of the contract do not make it clear that they so intended. McDaniel v. Gray & Co., 69 Ga. 433 (1882); Chapman v. Ayer, 95 Ga. 581, 23 S.E. 131 (1895).

Deed executed partly upon a consideration to support the grantor during the remainder of the grantor's life, without apt or proper words to create a condition a breach of which would render the estate defeasible at the grantor's election, passes title to the grantees, and in such a case, upon failure of the grantees to support and maintain the grantor as provided, there would be no forfeiture of the estate conveyed, but a right of action in the grantor for a breach of covenant. Jones v. Reid, 184 Ga. 764, 193 S.E. 235 (1937).

OPINIONS OF THE ATTORNEY GENERAL

Conveyance providing title reverts should stated purposes cease gives grantee fee on condition subsequent.

- Conveyance of land which provides that it is for stated purposes, and that should it cease to be used for such purposes the title is to revert back, gives the grantee a fee on condition subsequent, and upon breach thereof, the grantor has a right of reentry; this right of reentry can also be asserted against the state as grantee. 1958-59 Op. Att'y Gen. p. 281.