#### J. A. BRITTAIN et al. v. MATILDA TAYLOR et al.

(Filed 17 February, 1915.)

1. Deeds and Conveyances — Conditions Subsequent — Breach—Forfeiture.

Where a conveyance of land, which is made upon consideration of support and maintenance of the grantor for life, expressly provides that “the deed shall be null and void” upon the failure of the grantee to perform the services named therein, the obligation of the grantee to perform them is a condition subsequent which will work a forfeiture upon his failure to do so, and will not be construed as a covenant, for the breach of which damages are alone recoverable, constituting a charge upon the land.

2. Same — Cessation of Estate — Revesting of Estate.

In construing deeds and contracts, that method should be followed, if practicable, which will give effect to every part; and where it thus appears that the grantor has conveyed his land in consideration of support and maintenance for life, as a condition subsequent, upon the performance of which the grantee’s estate is made to depend, and the latter fails to perform the services required, the estate will cease in the grantee and revest in the grantor at his election.

3. Deeds and Conveyances — Conditions Subsequent — Forfeiture—Grantor’s

Possession — Presumptions.

Where a grantor retains possession of the land conveyed upon a condition subsequent, he is presumed to hold for the purpose of enforcing the forfeiture had it occurred, and he then chose so to do; and being already in possession, the question as to the necessity of an entry for the purpose of enforcing the forfeiture for a breach of the condition cannot arise. '

4. Same — Acts of Grantor — Waiver.

The mere silence of a grantor remaining in possession of the lands conveyed by him, after the breach by the' grantee of a condition subsequent, or any indulgence then granted by him to the grantee, will not have the effect of a waiver of his right, when such has not prejudiced the grantee or induced him to do something which will work to his detriment if the forfeiture is enforced, though his acts and conduct may be evidence of an agreement not to take advantage of the forfeiture, or of an affirmation of the continuance of the estate in the grantee.

5. Same — Trials—Questions for Jury — Courts—Matters of Law.

The question as to the waiver of the forfeiture of an estate granted upon a condition subsequent, where there has been a breach thereof, which is generally one of intention, may sometimes be declared as a matter of law, but it is usually an inference of fact for the jury.

6. Deeds and Conveyances — Conditions Subsequent — Actions—Heirs at Law.

The grantor of lands upon a condition subsequent, during his life, and his heirs or privies in blood after his death, may take advantage of the breach of the condition and may bring suit to declare the estate forfeited, and to recover the lands.

7. Deeds and Conveyances — Conditions Subsequent — Breach—Pleadings—Demurrer.

The allegations of the complaint in this action to recover lands for the breach of a condition subsequent, brought by the heirs at law of the *272grantor, imply that the grantor remained in possession during her liie and that the plaintiffs have had the possession since her death, and upon the said allegations, considered as a whole, the Court will not hold, as matter of law, that there had been a waiver by the grantor, or the plaintiffs, her heirs at law, of the breach of the condition subsequent, upon which the conveyance had been made to the ancestor of the defendants, under whom they claim.

Appeal by .defendants from Bond,, J., at October Term, 1914, of BEAUFORT.

This is an action in tbe nature of ejectment to recover tbe land described in tbe complaint, upon tbe theory that tbe ancestor of defendants, Jobn G-. Taylor, bad forfeited bis right and title thereto by reason of bis breach of tbe following stipulation in tbe deed made to him for tbe land by tbe ancestor of tbe plaintiffs, Margaret Taylor: “Tbe said deed is made on this special trust: That tbe said John Gf. Taylor is to 'feed, clothe, and kindly care for tbe said Margaret Taylor all of her natural life,’and should tbe said John Gr. Taylor fail to feed, clothe, and kindly care for tbe said Margaret Taylor, then this deed is to be null and void.” Tbe defendant demurred to tbe complaint, upon tbe ground that tbe stipulation is a covenant and not a condition, for tbe breach of which tbe estate was forfeited and reverted to tbe grantor; that tbe complaint fails to state that Margaret Taylor ever insisted upon tbe breach as a forfeiture, by act or conduct, during her lifetime, or attempted to avail herself of it, and that she bad, therefore, waived tbe same, and no right now exists in her heirs to take advantage of tbe breach, and that for these reasons plaintiffs cannot maintain this action. Tbe demurrer was overruled, and defendants appealed. This fairly states tbe several contentions of tbe defendants.

Ward & Grimes for plaintiff.

Julius Brown and Albion Dunn for defendant.

Walker, J.,

after stating tbe facts: Tbe stipulation in tbe deed for support and maintenance is not like those found in tbe cases to which tbe learned counsel for defendant has referred in bis brief and argument, such as Helms v. Helms, 135 N. C., 164; McCardle v. Kennedy, 92 Ga., 198 (44 Am. St., 85), and Pownal v. Taylor, 10 Leigh, 172 (34 Am. Dec., 725), where tbe stipulation merely for support and maintenance of tbe grantor, or some one else, with no words of strict condition or forfeiture, was held to be nothing more than a covenant, for tbe breach of which damages could be recovered, and constituted a charge upon tbe land. But this provision is not of that kind, for it is expressly stated in tbe deed that if tbe grantee failed to comply with tbe requirement of support and maintenance, tbe deed should be “null and void.” This is a condition subsequent by its very terms, and also according to tbe *273authorities. In the case relied on by appellant, Helms v. Helms, supra, the provision, held to be merely a covenant, was for support and maintenance, without any words of forfeiture in case it was not complied with, and the defendant sought to reform the deed by inserting those words, but the proof failed to show that they were intended to be inserted therein and were omitted by fraud or mistake, and an issue upon that phase of the case was denied; but this Court added: “If the deed had contained the words suggested, they would have constituted a condition subsequent.” It is said that if something is required by the deed to be done, such as services to be performed, rent to be paid, or divers other undertakings by the grantee, and there be added a conclusion of reentry, or without such clause if it is declared that if the feoffee does or does not do the act forbidden or required of him to be done, “his estate shall cease or be void,” it creates a good condition subsequent. Washburn on Real Property (5 Ed.), pp. 4 and 5; Sheppard’s Touchstone, 125; Moore v. Pitts, 53 N. Y., 85; Schulenberg v. Harriman, 21 Wall. (U. S.), 44. It was so expressly held in Jackson v. Crysler, 1 Johns. Cases (N. Y.), 125. The case of Harwood v. Shoe, 141 N. C., 161, virtually recognizes that the words used here will create a good condition subsequent. An estate or condition expressed in the grant or devise itself is, where the estate granted has a qualification annexed, whereby it shall commence, be enlarged, or defeated upon performance or breach of such qualification or condition, and estates on condition subsequent are de-feasible, if the condition be not performed. 2 Blackstone Comm., 154; Co. Litt., 201. The words which constitute a condition may be various, for in particular words there is no weight, as their operation and effect depend on the sense which they carry. 1 Yes., 147; Wheeler v. Walker, 2 Conn., 196. In the construction of contracts and deeds that method should be followed, if practicable, which will give effect to every part. This rule, like others, has been adopted and applied by the courts for the purpose of ascertaining the intention of the parties, and results from the presumption that words are not employed in making contracts without meaning something. Moore v. Pitts, 53 N. Y., 92. The language of the deed under consideration leaves no doubt as to what the parties intended. It is plain, intelligible, and explicit. The grantor conveyed the estate upon the condition that she should be supported, and provided, in order to coerce its performance, that if the grantor failed to do so the deed should be void and of no effect, which means no more nor less than that the estate should cease in the grantee and revest in her; for if the deed becomes void, the grantee can no longer take under it, and as the estate cannot be in abeyance, it must vest in the grantor. It has been said to be not always easy to determine whether the condition created by the words of a devise or conveyance is precedent or subsequent.' The *274construction must depend upon tbe intention of tbe parties as gathered from tbe instrument and tbe existing facts, since no technical words are necessary to determine tbe question. In Underhill v. S. and W. R. Co., 20 Barbour (N. Y.), 455, tbe Court states as a rule that “if tbe act or condition required does not necessarily precede tbe vesting of tbe estate, but may accompany or follow it, and if tbe act may as well be done after as before tbe vesting of tbe estate, or if from tbe nature of tbe act to be performed, and tbe time required for its performance, it is evidently tbe intention of tbe parties that tbe estate shall vest and tbe grantee perform tbe act after taking possession, then tbe condition is subsequent.” There is this familiar distinction between a condition precedent and a condition subsequent: If tbe condition is precedent, inasmuch as tbe estate does not vest at all until such condition happens, tbe effect of its being unlawful or impossible is that tbe estate dependent on it fails, and tbe grant or devise becomes wholly void; and where a condition precedent consists of several parts united by copulative conjunction, each part must be performed before tbe estate can vest. A condition subsequent, if it has any effect, defeats an estate already vested; but if such condition is impossible or'unlawful at tbe time of creating tbe estate, or becomes impossible by tbe act of tbe feoffor or tbe act of God, it leaves tbe estate an absolute and unconditional one, since it is tbe condition itself that is or becomes void. 2 Wash, on Real Property, pp. 8 and 11. But there is no question made here as to tbe validity of tbe condition in this deed, and it being admitted by tbe demurrer that tbe grantee failed to perform bis obligation to support tbe grantor, tbe estate was forfeited, at tbe election of tbe grantor.

Formerly, and at common law, it was held that actual entry upon tbe land was necessary, upon tbe idea that as tbe estate was created by a solemn act, viz., a grant and livery of seizin, it must be defeated and restored to tbe grantor by an act equally solemn, under tbe maxim of tbe common law, eo ligamine quo ligatur. If a feudal tenant failed to perform tbe services, bis estate was not defeated until tbe lord bad judgment in a writ of cessavit. If a subject incurs a forfeiture by committing treason, bis estate is not defeated until “office found.” If a feoffment is made on condition and tbe condition be broken, tbe estate continues until it is defeated by tbe entry of tbe feoffor or bis heirs. Coke on Lit., chapter on “Conditions.” But tbe grantor cannot enter or make claim when already in possession. Rollins v. Riley, 44 N. H., 1.

A party, for whose benefit a condition subsequent is attached to a devise of land, being in possession at tbe time of tbe breach, is presumed to bold for tbe purpose of enforcing tbe forfeiture, though be may waive it. “Tbe law will presume that a person who cannot make a formal entry upon the estate of another for condition broken, because be is *275already in possession, intends to bold possession to enforce all bis legal rights, unless there be some indication that such was not bis intention, by which the presumption of law may be rebutted. "When the facts disclosed are inconsistent with a claim to hold for condition broken, the presumption will be rebutted, or the person entitled to make an entry will be considered as having waived a performance of the condition. Forfeitures are not favored by the law; and any acts of the party entitled to cause a forfeiture, clearly inconsistent with a claim to be the owner of the estate by forfeiture, must be regarded as proof that performance of the condition was not intended to be enforced for the purpose of creating a forfeiture.” Andrews v. Senter, 32 Me., 394. When the grantor conveyed his estate, he parted with the seizin, which, under the ancient law, he could only regain by an entry made. But this view has long since ceased to obtain, and any act equivalent to an entry is now considered as sufficient in place of an entry, and numerous cases hold that a posses-sory action may be maintained upon the breach of a condition subsequent without a prior reentry or demand of possession, such an action being equivalent thereto. Bronck v. Gryster, 1 Johns Cases, 125, and the many cases collected in the note to Marsh v. Bloom, 14 L. R. A. (N. S..), p. 1188. In Phelps v. Chesson, 34 N. C., 194, where land was claimed to have been forfeited and to have reverted to the State for nonpayment of taxes, an action was held sufficient without any entry. But if entry were required, a learned text-writer says in regard to it: “If. the grantor is himself in possession of the premises when the breach happens, the estate reverts in him at once without any formal act on his part, and he will be presumed, after the breach, to hold, for the purpose of enforcing a forfeiture, unless he waive the breach, as it is competent for him to do so, and as he may do by his- acts. But to have possession, in such a state of things, work a forfeiture, it must be at the election of the grantor. He is at liberty to waive the breach and thereby save the forfeiture. Where the grantor covenanted to stand seized to his own use for life, and after his death to the use of his son in fee, but upon condition, and the son failed to perform the condition, it was held that the grantor, being in possession, need not make a formal entry, or make a formal claim to the land, to defeat the estate of the son. Still, the entry, to be effectual to work a forfeiture of an estate, must be made with an intention to produce that effect. And where an heir entered after a breach of condition, but declared the title under which he entered'not to be that in favor of which the condition was made, it was held not to avoid the estate of the grantee, though it is not necessary when making such entry to give notice to the feoffee why it is done.” . 2 Wash, on Real Property (5 Ed.), pp. 18 and 19. This does not conflict with the principle that a forfeiture may be saved, though a condition may have been broken, if the party who has *276the right to avail himself of the same waives this right, which he may do by acts as well as by express agreement; but mere silence of, or an indulgence by, the grantor, it has been said, will not have this effect, if it has not prejudiced the grantee or induced him to do something which will work to his detriment if the forfeiture is enforced. 2 Washburn, p. 21, and cases in note 4; White v. Bailey, 23 L. R. A. (N. S.), 232. The acts and conduct of the grantor who asserts a forfeiture may be of such a character as to become evidence of his agreement that he will not take advantage of the breach or forfeiture, and as affirming that the estate which he once granted still continues. 2 Washburn, id. 21. The question of waiver is generally one of intention, which is said to lie at the foundation of the doctrine. It may sometimes be declared as matter of law, but is usually an inference of fact for the jury. 40 Cyc., 261 et seq. It is there said, at p. 263 : “The intention need not necessarily be proved.by express declarations, but may be shown by the acts and conduct of the parties, from which an intention to waive may be reasonably inferred, or even by nonaction on their part. Mere silence at a time when there is no occasion to speak is not a waiver, nor evidence from which waiver may be inferred, especially where such silence is unaccompanied by any act calculated to mislead.” See White v. Bailey, supra. But a condition the breach of which will forfeit an estate, if once dispensed with, is gone forever, and the estate vests absolutely in the grantee. 2 Washburn, p. 21.

It is unquestionably true that not only the grantor, during his life, but his heirs, or privies in blood, after his death, may take advantage of the breach of a condition subsequent and bring suit for the land or to declare the estate forfeited. Sheppard’s Touchstone, 125; Tiedeman on Real Property, sec. 207; Den ex Dem. Southard v. Central R. Co., 26 N. J. L., 21; Hooper v. Cummings, 45 Me., 359; Avelyn v. Ward, 1 Vesey, Sr., 422; 4 Kent Comm., 127; 2 Cruise Digest,,ch. 2, sec. 49. Ruch v. Rock Island, 97 U. S., at p. 696, held that “If the conditions subsequent were broken, it did not ipso facto1 produce a reversion of the title. The estate continued in full force until the proper step was taken to consummate the forfeiture. This could be done only by the grantor during his lifetime and after his death by those in privity of blood with him.” So it is said: “If the tenant neglected to pay or perform his service, the lord might resume his fief. It is upon this ground that conditions are held to be reserved to the grantor and his heirs only, and he and they alone can avail of the right of resuming the estate for a breach.” Coke Lit., 201a, and Butler’s Note, 84; 2 Washb. (5 Ed.), p. 7. And again, Washburn says, at p. 15, citing Co. Lit:, 214; Sheppard Touch, (fol. ed.), 441, and Crabb on Real Prop., 835 : “If there be a breach of the conditions in law, the lessor or his heirs, or, if he have aliened his estate, his assignee, may avail himself of the right to enter. But of conditions in deed no one but *277be who creates tbe estate or bis bpirs, as, for instance, tbe beirs of a devisor, or, in case of a devise of tbe contingent right, sucb devisee or bis beirs, can take advantage by entering and defeating tbe estate. It is a right which cannot be aliened or assigned, or pass by a grant of tbe reversion at common law.” It is not necessary to decide whether any one other than tbe grantor and bis beirs can take advantage of a forfeiture arising from tbe breach of a condition subsequent, as tbe plaintiffs in this case are tbe beirs of tbe grantor, Margaret Taylor.

There are no allegations in tbe complaint sufficient to show a waiver of tbe breach in failing to support tbe grantor. It would seem to be implied that Margaret Taylor bad been in possession of tbe land during her life, as it is alleged that defendants have bad tbe possession since her death. There is certainly not enough in tbe complaint for us to declare, as matter of law, that she bad waived or abandoned her right to take advantage of tbe forfeiture caused by tbe breach. There is really nothing alleged that shows that she did, and upon tbe meager statement in tbe complaint we would be unwilling to bold that, in law, there bad been a waiver. When tbe answer comes in and tbe facts are developed, under proper issues submitted for tbe purpose, we may see more clearly what are tbe legal rights of tbe parties and declare them accordingly.

There was no error in overruling tbe demurrer and allowing defendants to answer.

No error.