Fitzgerald v. County of Modoc

HENSHAW, J.

In its form this is a simple action to quiet title, brought against the county of Modoc and T. F. Dunaway, the complaint alleging title in plaintiff to nine acres of land in the county of Modoc, and asserting that the defendants set up some claim of right or title thereto. The county of Modoc disclaimed. Defendant Dunaway answered, alleging title in himself. The findings declare plaintiff to be the owner of the land, that Dunaway’s claim is without right, and judgment followed accordingly. Defendant Dunaway appeals.

By the evidence it appears that the action is in fact one to enforce a forfeiture upon breach by the grantee, the county of Modoc, of an asserted condition, subsequent, contained in a deed to the land made by plaintiff to the county of Modoc. Preliminarily appellant urges that, such being in fact the nature of the action, wherever plaintiff relies upon a forfeiture he must plead it. We will not pause, however, to enter into a discussion of this, question, since under the circumstances, it is better for all of the litigants that the controversy should be settled upon its merits.

Plaintiff made a deed to the county of Modoc which conveyed by appropriate description the land here in controversy, and contained immediately following the description the fol

[495]

lowing clause: "To be used as and for a county high school ground and premises, for the county of Modoc, state of California.” Evidence is lacking as to whether or not the land was ever used for the indicated purpose, but the breach of the asserted condition subsequent rests upon the fact that admittedly the county of Modoc did convey this land to the defendant Dunaway.

It is fundamental that conditions subsequent tending to restrict and defeat an estate are not favored. They can be created only by apt and appropriate language which

ex proprio vigore

establishes that only a conditional estate was conveyed, and when such a condition is shown to have been created, the rule of construction is that of strictness against the grantor and in favor of the holder of the estate. Generally speaking, the apt and appropriate words evidencing that the grant is on condition subsequent are found in a provision for forfeiture and right of re-entry. "Reciting in a deed that it is in consideration of a certain sum, and that the grantee is to do certain things, is not an estate upon condition, not being in terms upon condition, nor containing a clause of reentry or forfeiture.” (2 Washburn on Real Property, 4, 8 ;