Fox v. California Fruit Co.

RICHARDS, J.

This is an appeal from a judgment in favor of the defendants in an action instituted by the plaintiffs as heirs, and by one of them as the administratrix of the estate, of Emily M. Merryfield, deceased, to" enforce" a certain forfeiture clause in a deed made by said Emily M. Merryfield in her lifetime to the defendant, California Fruit Company. The record shows as an undisputed fact that for some years prior to January, 1907, Mrs. Emily M. Merryfield, a widow with five sons and two daughters, had been the owner and in possession of several pieces of property in the county of San Bernardino which were largely planted to orange trees and were quite valuable. She was on the above date about sixty-four years of age, and was somewhat infirm in general health and was gradu

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ally becoming blind. She concluded to convey her said properties to her five sons upon certain conditions subsequent, in order to which conveyance and to carry out its conditions the five sons concluded to organize a corporation, to be known as California Fruit Company, to be composed exclusively of themselves as stockholders., directors, and officers. This they did, and thereupon said several properties were deeded to said corporation. This deed contained a condition subsequent to the effect that as the consideration for the conveyance the grantee agreed to pay to the grantor the sum of $150 monthly in advance as long as she should live, provided that if the said grantee should fail to make any of said monthly payments within ninety days after any of the same should become due and payable during her lifetime, then upon such default the deed should become null and void, and all property and rights thereby conveyed should revert to the grantor, her heirs and assigns, and all right, title, and interest of said grantee should thereupon wholly cease.

The complaint in the action, after setting forth the foregoing facts, alleges that from a time commencing about November 7, 1910, and continuing up to the time of the death of said Emily M. Merryfield in April, 1913, the said California Fruit Company had begun and continued to be quite irregular and delinquent in the matter of making the monthly payments to her in accordance with the requirements of said deed, and that at and prior to the said time of the death of said Emily M. Merryfield a sum upward of one thousand dollars was past due and payable upon its said obligation, and had been so past due and payable for a period of more than ninety days prior to the said date of her death. The complaint also alleges that on the seventh day of November, 1910, the defendant Charles L. Merry-field, who was the eldest son of the said Emily M. Merry-field and'who was also the president of and a large stockholder in the California Fruit Company, induced his said mother to execute and deliver to him a general power of attorney, authorizing him to transact all of her said business, and that on the tenth day of May, 1912, professing to act under the authority of said power of attorney, the said Charles L. Merryfield made and delivered to the California Fruit Company a quitclaim deed of all of the right, title,