Kuhn v. Jackman , 32 Ohio App. 164 ( 1929 )

An action in ejectment was started in the court below by the plaintiff, Grace J. Kuhn, who claimed title to the property involved herein under and by virtue of a quitclaim deed given to her by her father in 1919, which deed contained a condition subsequent, obligating her to furnish him with food, clothing, and a home, and all necessary care, nursing, and attention required by his age and condition, for and during the remaining period of his natural life, followed by a clause, that, should the grantee refuse, neglect or fail to keep and perform the agreements therein stipulated by her to be performed, then the conveyance should be void and of no effect and the property revert to the grantor, his heirs, and assigns.

The defendant, her brother, Wilbert J. Jackman, filed a cross-petition as a part of his answer, claiming title to this property by virtue of a will of the father, James B. Jackman, which devised this same property to the defendant, and also by reason of a quitclaim deed given by his father to Joseph W. Jackman, trustee, before the acknowledgment of the deed to the plaintiff, attempting to divest himself of title to the property. This trust deed conveyed the property to said trustee to have and to hold, with the appurtenances thereunto belonging, to the said grantee for and during the natural life of the grantor (the father of the parties to this suit), for the uses, purposes, and for the following trust only:

"To receive, collect and draw the rents, issues and profits arising therefrom; to pay the same to the said James B. Jackman; said trustee paying the taxes and repairs during the natural life of James B. Jackman, and for no other purpose whatsoever. That at the death of James B. Jackman, said trust shall terminate and said premises shall pass to, invest and be enjoyed by the said heirs of the said James B. Jackman and their heirs and assigns, and said trustee covenants and agrees that he has no interest in the said property personally, except for the purpose of carrying said trust into effect."

The deed provided further power in the trustee to mortgage said property if it became necessary so to do to cover the living expenses, care and maintenance of the said James B. Jackman.

The defendant further asks that in the event the deed to his sister, the plaintiff, should be found to be a valid deed, and said trust deed void, then and in such event his sister's deed be canceled for the reason that performance thereunder was never made by the plaintiff.

We entertain no doubt but that the trust deed is void and of no effect for two reasons: First, because the use of the words "heirs of the grantor" to designate the parties as grantees of the remainder is ineffectual (18 Corpus Juris, 159); and, second, because of the provisions of Section 8617 of the General Code of Ohio. Hence, we are back to the consideration of this case on the question of the performance under the deed given to the plaintiff.

The evidence makes it clear that, while this deed to plaintiff was recorded, there was never any dominion exercised by her over the property; she did not collect or demand rent from any one therefor; she did not make or pay for any repairs thereon; she did not pay the taxes charged against the property, save and except on one occasion, which was near the date of her father's death.

It is true that her father made his home with her and ate at her table, but she accepted a regular and full compensation for his board in money; his laundry was sent to the laundry, and the bills made out in his name and paid by him; his clothes were purchased and charged to him, and paid for by him. In short, the evidence makes it quite certain that there was no effort upon her part to perform the conditions imposed upon her by this deed. Therefore, unless it is made to appear that the performance of the conditions was waived by the grantor, a decree of cancellation should be decreed. See Pomeroy's Equity Jurisprudence (2d Ed.), Section 2108.

The evidence shows that this grantor was practically blind and almost continually bedridden by physical infirmities for the last four years of his life, and in view of his physical disabilities, which made it almost impossible for him to protest, it cannot be said that the evidence in this case would warrant a finding of waiver upon his part.

Judgment for the defendant.

JUSTICE and CROW, JJ., concur.