Construction generally.

- Where there are no express words of defeasance, forfeiture, or reversion, words in a deed will be construed as words of covenant and not words of condition. The remedy for a breach by one having the right to enforce the same is an action for damages and not a forfeiture of the estate for condition broken. Fulford v. Fulford, 225 Ga. 9, 165 S.E.2d 848 (1969); Kitchens v. Atlantic Steel Co., 123 Ga. App. 812, 182 S.E.2d 530 (1971), aff'd, 228 Ga. 708, 187 S.E.2d 824 (1972).

Lease provision requiring lessor to modify building in accordance with blueprint and city requirements was a covenant, and not words of condition; and the remedy for a breach was an action for damages, and not a forfeiture of the estate for condition broken. Fulton County v. Collum Properties, Inc., 193 Ga. App. 774, 388 S.E.2d 916 (1989).

Cited in Grantham v. Royal Ins. Co., 34 Ga. App. 415, 130 S.E. 589, cert. denied, 34 Ga. App. 836 (1925); Hardeman v. Ellis, 162 Ga. 664, 135 S.E. 195 (1926); A.C. Alexander Lumber Co. v. Bagley, 184 Ga. 352, 191 S.E. 446 (1937); Crisp County Lumber Co. v. Bridges, 187 Ga. 484, 200 S.E. 777 (1939); Golden v. National Life & Accident Ins. Co., 189 Ga. 79, 5 S.E.2d 198 (1939); Simpson v. Blanchard, 73 Ga. App. 843, 38 S.E.2d 634 (1946); Churches Homes for Bus. Girls, Inc. v. Manget Found., Inc., 110 Ga. App. 539, 139 S.E.2d 138 (1964); White v. Turbidy, 227 Ga. 825, 183 S.E.2d 363 (1971); Kiser v. Warner Robins Air Park Estates, Inc., 237 Ga. 385, 228 S.E.2d 795 (1976).

Determination of condition precedent or subsequent.

- While it is not always easy to determine whether the condition created by the terms of a conveyance is precedent or subsequent, the general rule is that, if the act or condition required does not necessarily precede the vesting of the estate, but may accompany or follow it, and if the act may as well be done after as before vesting of the estate, or if from the nature of the act to be performed, it is evidently the intention of the parties that the estate shall vest and the grantee perform the act taking possession, then the condition is subsequent. Gordon v. Whittle, 206 Ga. 339, 57 S.E.2d 169 (1950).

If, upon a strict construction of a deed in its entirety (there being no express words of defeasance), it should be doubtful whether the instrument created an estate upon condition subsequent, or the words employed imported covenant, the latter construction should be adopted. Fulford v. Fulford, 225 Ga. 9, 165 S.E.2d 848 (1969).

Where a deed purports to convey a fee simple title and there is no provision in the deed for a forfeiture of the estate or a reversion to the grantor in the event the grantee conveyed the property to another without the consent of his brothers, restrictive words in the deed are words of covenant and not a condition subsequent. Fulford v. Fulford, 225 Ga. 9, 165 S.E.2d 848 (1969).

A deed will not be construed as a grant on condition subsequent unless the language used by express terms creates an estate on condition or unless the intent of the grantor to create a conditional estate is manifest from a reading of the entire instrument. Gordon v. Whittle, 206 Ga. 339, 57 S.E.2d 169 (1950); Fulford v. Fulford, 225 Ga. 9, 165 S.E.2d 848 (1969); Floyd v. Hoover, 141 Ga. App. 588, 234 S.E.2d 89 (1977).

Deed that the grantor, in consideration of payment by grantees of certain indebtedness and of their support and maintenance of him during the remainder of his life, conveyed the described premises, did not create a condition subsequent which, upon the failure of the grantees to support and maintain the grantor, would result in a forfeiture of the estate conveyed, but such language created a covenant binding the grantees therein to perform; upon their failure to perform, if the grantor had been in life, he might have rescinded the contract by restoring to the grantees that part of the consideration represented by the payment of his indebtedness, offset by any profits they might have derived from the conveyance to them. Jones v. Reid, 184 Ga. 764, 193 S.E. 235 (1937).

Provision in deed that title "reverts back to the grantor if the grantee denies grantor her right to live on said property with him as his wife or without him" created a valid condition subsequent, and stipulated in terms that a breach of such condition by the grantee husband would cause the title to revert; and this would give to the grantor wife the right of reentry; however, if performance by the husband of such a condition subsequent was made impossible by acts or conduct on the part of the wife herself, the rule would be otherwise. Turner v. Turner, 186 Ga. 223, 197 S.E. 771 (1938).

Am. Jur. 2d.

- 27 Am. Jur. 2d, Equity, §§ 74-83.

C.J.S.

- 30 C.J.S., Equity, § 56 et seq.

ALR.

- Distinction between condition and covenant in grant of land for church purposes, 7 A.L.R. 1429.

Relief of purchaser against forfeiture of land contract, 40 A.L.R. 182.

Constitutionality of statute relieving against forfeiture of bail or recognizance, 43 A.L.R. 1233.

Continued use of property for burial purposes as a condition subsequent of a conveyance of dedication of land for that purpose, 47 A.L.R. 1174.

Covenant in mining lease to develop property as affected by provisions for delay rental, 67 A.L.R. 221.

Commencement of development within fixed term as extending term of oil and gas lease, 67 A.L.R. 526.

Validity and effect of covenant by lessee, as regards his activities after expiration of lease, 122 A.L.R. 1031.

Execution of new lease as within contemplation of option for extension or renewal of lease, 172 A.L.R. 1205.

Mistake, accident, inadvertence, etc., as ground for relief from termination or forfeiture of oil or gas lease for failure to complete well, commence drilling, or pay rental, strictly on time, 5 A.L.R.2d 993.

Relief against forfeiture of lease for nonpayment of rent, 31 A.L.R.2d 321.

Waiver of, or estoppel to assert, condition subsequent or its breach, 39 A.L.R.2d 1116.

Enforcement of, or waiver of or estoppel to assert, forfeiture clause of lease made or held by cotenants as lessors, 50 A.L.R.2d 1365.