Peacock & Hunt Naval Stores Co. v. Brooks Lumber Co. , 96 Ga. 542 ( 1895 )

Lumpkin, Justice.

An estate granted upon a condition may, by a breach thereof, be defeated. If it be a condition precedent, it must be performed before the estate vests. If a condition subsequent, a failure to perform may work a forfeiture of an estate already vested. Code, §§2294, 2295.. The question in the present case is whether or not, upon the breach of a condition subsequent, a forfeiture re-vesting the title will at once result by mere operation of law. This question has been answered in the negative by the decisions of this court in Norris v. Milner et al., 20 Ga. 563, and in Edmondson v. Leach, 56 Ga. 461, as well as in other cases.

The grantor in a deed containing such a condition may, upon its breach, re-enter, if he can do so peaceably; or he may maintain his action for the recovery of the premises, in the event the grantee refuses to yield possession. Until, in one or the other of these ways,, the grantor shall have regained possession, the grantee’s, possession continues to be lawful. The rule above stated is applicable to a lease of realty for a term of years' as well as to a deed of absolute sale. In either case, those holding under the original grantor or lessoiare not, before forfeiture and re-entry, in any better position than the grantor or lessor himself; and of course those holding under the grantee or lessee are entitled to all his legal rights in the premises. The right of reentry must be established either by a voluntary surrender of possession by the person breaking the condition subsequent, or by his due eviction under a judgment at law. The regaining of possession, either total or partial, by mere force is neither lawful nor effectual, for in no sense would such an entry establish- the right of possession.

Applying the above to the facts of the present case, the court erred in denying the injunction.

Judgment reversed.