Papst v. Hamilton

Opinion — Smith

SMITH, C.

Appeal by the defendants from a judgment for plaintiff on demurrer to the complaint. The complaint alleges the ownership of certain land by the plaintiff, December 8, 1882, and the execution by him of a deed, of that date, to the defendants, and others now deceased, conveying to them, “as joint tenants, with right of survivorship as such, and not as tenants in common,” etc., the land mentioned, “upon the conditions, however, that the premises shall be used solely for the purpose of erecting, furnishing, keeping, and' maintaining thereon an academic or collegiate school for the purpose of educating the young people and students in the higher as well as more common and useful branches of education, and for a residence or residences thereon for the professors or teachers and students of the said institution while engaged in their duties therein, and for no other purpose whatever.” It is alleged in the complaint, “that for more than five years last past the said grantees in the said deed, or their successors, have failed and neglected to use the premises described in the said deed for the purpose, or any of the purposes, above specified as a consideration for the said deed, and have entirely abandoned the said premises,” it being, in effect, admitted that the defendants entered upon the performance of the conditions specified in the deed, and performed all the conditions *633 named for several years. It is also alleged that the plaintiff is in possession of the premises described in the deed. The relief demanded is the cancellation of the deed and the quieting of plaintiff’s title.

The complaint, we think, was sufficient, and the demurrer to it rightly overruled. The language used, both in its technical and popular sense, “ex proprio vigore imports a condition, or the intent of the grantor to make a conditional estate”

(Rawson v. School District No. 5, 7 Allen, 125, and authorities cited); and where this is the case, a clause of re-entry is unnecessary. (4 Kent’s Commentaries, marg. pp. 123, 124.) The complaint alleges a continued failure of the defendants to perform the condition for over five years, and “that they have entirely abandoned the said premises,” and also that the plaintiff is in possession of the premises.

(Hamilton v. Elliott, 5 Serg. & R. 375.) Upon the entry of the plaintiff, he became seised as of his first estate, and the estate of the defendants terminated. (4 Kent’s Commentaries, marg. p. 126.) He was therefore in a position to maintain his action for the cancellation of the deed and the quieting of his title.

(Liebrand v. Otto, 56 Cal. 242;

Parsons v. Smilie, 97 Cal. 647.)

I advise that the judgment be affirmed.

Haynes, C., and Chipman, C., concurred.

For the reasons given in the foregoing opinion the judgment is affirmed. Harrison, J., Van Dyke, J., Garoutte, J.

Hearing in Bank denied.

83 Am. Dec. 670.