Hawley v. Kafitz

[394]

LORIGAN, J.

The plaintiffs on November 26, 1901, executed to defendant William Kafitz a grant, bargain, and sale deed of a lot in the Electric Railway Homestead Association Tract in the city of Los Angeles for a money consideration of $375. The deed contained the following provision: ‘1 This deed is given by the parties of the first part, and accepted by the second party, upon the express agreement of the second party to build, or cause to be built, upon the said premises within six (6) months from the date hereof a dwelling-house to cost not less than fifteen hundred ($1,500.00) dollars. Said agreement being considered by the parties hereto as part consideration for this conveyance.” No dwelling of any kind was built upon the lot within the six months specified, and subsequent to the expiration of that period plaintiffs brought this action to have the right of defendant in said lot declared forfeited and for a decree requiring a reconveyance to them by defendant of the property. Defendant had judgment, from which plaintiffs appeal, their appeal being accompanied by a bill of exceptions.

The only question arising on this appeal from the judgment is as to the nature of the provision inserted in the deed relative to the building of a house on the lot granted within six months and the correctness of the construction the trial court gave it. As to this provision, it is insisted by plaintiffs that by virtue of its incorporation in the deed an estate on condition subsequent was created, and defendant having failed to perform the condition, his interest in the property was subject to forfeiture at the instance of plaintiffs for nonperformance of the condition. The trial court held that this provision did not create a condition subsequent; that it amounted simply to a personal covenant. We think there can be no question of the accuracy of the construction placed upon it by the court. Conditions subsequent are those which in terms operate upon an estate conveyed and render it liable to be defeated for breach of the conditions. Such conditions are not favored in law because they tend to destroy estates, and no provision in a deed relied on -to create a condition subsequent will be so interpreted if the language of the provision will bear any other reasonable construction. While no precise form of words is necessary to create a condition subsequent, still it must be created by express terms or by clear implication.