Stolarick v. Stolarick

363 A.2d 793, 241 Pa. Super. 498, 1976 Pa. Super. LEXIS 2025

• Court: Superior Court of Pennsylvania
• Decided: June 28, 1976
• Docket: 1609
• Status: Published

Opinions

HOFFMAN, Judge:

Appellant brought a petition for declaratory judgment ¹ in the Court of Common Pleas of Luzerne County on August 20, 1974, seeking an interpretation of certain deed provisions. The court below filed a declaration and decree nisi on February 18, 1975, adjudging appellant the owner of an undivided one-half interest in the property and appellees the owners of the other one-half. Appellant contends that the court below erred in holding that appellant’s delay in commencing legal action barred her claim to sole title to the entire fee.

In 1918, appellant’s parents, Steven and Mary Sto-larick, moved to the family farm which is the subject of this dispute. Steven and Mary had ten children: appellant, Michael, John, Andrew, Joseph, Frank, George, Anna, Katherine, and Steven, Jr.

In August, 1923, Steven and Mary conveyed the farm to Michael and John Stolarick by deed which contained the following provisions:

“The said Grantees, Mike Stolarick and John Stolarick, . agree to pay to Steven Stolarick the sum of six dollars on the first day of each month as long as he may live, to furnish him with board and home as long as he may live. To furnish their mother, Mary Stolarick, with a home during her life together with suitable clothing, also the same to their three sisters, Anna, Mary, and Katie Stolarick until they become of full age of 21 years. To Steven Stolarick, Junior, the sum of One Hundred dollars a* the death of father and mother. At the death of Steven and Mary Stolarick the said Mike and John are to pay to their brothers, Andrew, Joseph, Frank and George, to their sisters, Anna, Mary and Katie Solarick, if said sisters are of ages, [sic] if not of ages [sic] to be paid when they are, a sum of money in equal shares not to exceed one-half the value of the within described farm. Should the Grantees, Mike and John Stolarick, default in any of the conditions or payments mentioned in this Deed then this Deed to be void and of no effect and to revert to the Grantors or their estate.”

Steven Stolarick, appellant’s father, died on February 16, 1929. Michael Stolarick, one of the two grantees, died intestate in 1947, and Michael’s interest passed to his mother, Mary. Mary Stolarick died testate on February 11, 1953, leaving all her property to her son Andrew and to appellant. John Stolarick, the other grantee, died on June 11, 1964. His interest in the farm descended to his two sons, John and George, the appellees in this matter. On November 7, 1973, Andrew Stolarick died and, by his will, devised his entire estate to appellant.

On August 21, 1974, appellant filed a petition for declaratory judgment with the Court of Common Pleas of Luzerne County seeking a determination of title to the land under the 1918 deed. At trial on December 17,1974, the court heard testimony from Katherine Stolarick Dis-que, appellant’s 60 year-old sister; Steven Stolarick, Jr., appellant’s 81 year-old brother; Frank Stolarick, appellant’s 73 year-old brother; and appellees, appellant’s nephews j

Katherine Stolarick Disque testified that the deed was executed and delivered in her presence. She stated that Joseph, George, Anna, appellant and she were living on the farm at the time of her father’s death in 1929. Neither grantee lived on the farm; however, Michael, and not John, looked after his semi-invalid mother and his brothers and sisters until his death in 1937. She testified that she did not receive any payments from either of the grantees or their successors in interest when Mary Stolarick died or thereafter, despite the fact that she requested payment from her brother John. According to Katherine after Michael’s death, Andrew and Mary provided for all of their mother’s needs. John lived on the farm from 1931 until several years before his mother’s death but never contributed to the maintenance of the family. John left the farm when he learned that his mother’s will left her entire estate to Andrew and appellant. Finally, Katherine testified that she was unsuccessful in getting either her brother John, or his two sons, appellees, to agree to comply with the provisions of the deed, although several meetings were held to arrange an amicable settlement.

Steven Stolarick, Jr., testified that after his mother’s death he never received the hundred dollars required by the deed although he approached John Stolarick, his brother, four or five times to arrange settlement of the matter, because John was unwilling to agree to a settlement.

Frank Stolarick testified that he never received the payments provided in the deed and that he also attended several family meetings to arrange settlement. He testified that after his brother Michael died John did not provide support for his mother. However, he testified that John received no rent from the farm, from his mother, Andrew, or appellant.

Appellee George Stolarick, John’s son, 33, testified that his father never received profits from operation of the farm and that he had no knowledge of any proposed settlements except for a conference with a lawyer in 1970. He conceded on cross-examination that his father did receive $7 per week from Michael and certain produce from the farm. Appellee John Henry Stolarick, age 35, testified that he did not know whether his father had made the payments required by the deed, that he never made payments on his father’s behalf, and that neither he nor his brother ever did any work on the farm.

At the conclusion of the trial, the court held that appellant owned an undivided one half interest in the farm and appellees owned the other undivided half interest. Further, the court ordered the owners to pay $100 to Steven Stolarick, Jr., or his heirs and to pay within six months a sum of money equal to one-half the present fair market value in equal shares to Andrew, Joseph, Frank, George, and Anna Stolarick, Katherine Stolarick Disque, and appellant, or their heirs. This appeal followed.

To determine legal title in the instant case, we must first define the nature of the legal interests created by the deed of 1918. If the deed creates an estate in fee simple determinable, the estate of the grantees would expire automatically upon the failure of the grantees to comply with the limitations in the deed. Thus, the grantors would have a possibility of reverter. Restatement of Property § 44 (1936); accord, McCall v. Umbenhauer, 270 Pa. 351, 113 A. 423 (1912); Union Canal Co. v. Young, 1 Wheaton 410 (1836). If, on the other hand, the deed conveyed a fee simple subject to a condition subsequent, then upon the non-compliance with the stated condition the grantor or his successor in interest would have the power to terminate the preceding estate. Thus, the grantors would have a right of re-entry. Restatement of Property § 45 (1936); see, Commonwealth v. Koontz, 258 Pa. 64, 101 A. 863 (1917); Bear v. Whisler, 7 Watts 144 (1838). The principal distinction between the two estates is that a right of re-entry requires some action to perfect title by the grantor or his successor, while a reverter vests automatically. Restatement of Property § 57 (1936).

The deed in the instant case is clearly framed in conditional language except for the provision that in the event of non-performance, the deed was to be “null and void” and the farm was to revert to the grantors. “When an otherwise effective conveyance contains a clause which provides that ‘if,’ or ‘upon the condition that,’ or ‘provided that’ a stated event occurs, then the estate created ‘shall be null and void’ or ‘shall revert back,’ a problem in construction is presented as to whether such conveyance creates an estate in fee simple subject to a condition subsequent or an estate in fee simple determinable. Such a conveyance more commonly manifests an intent to create an estate in fee simple subject to a condition subsequent.” Restatement of Property § 45, Comment m. Accord, Pennsylvania Horticultural Society v. Craig, 240 Pa. 137, 87 A. 678 (1913); Watters v. Bredin, 70 Pa. 235 (1871); Pennsylvania R. R. Co. v. Parke, 42 Pa. 31 (1862); McKissick v. Pickle, 16 Pa. 140 (1851); Westenberger v. Reist, 13 Pa. 594 (1850). We hold, therefore, that because there is no evidence of a contrary intent, the deed in the instant case conveyed a fee simple subject to a condition subsequent.

Thus, John and Michael Stolarick held a conditional fee, and the grantors reserved a right of re-entry to themselves and their heirs in the event that the conditions were not performed. When Michael died in 1947, his interest in the conditional fee passed by intestacy to his mother. At the time of the death of Mary Stolarick, the sole surviving grantor, in 1953, therefore, her devisees, appellant and Andrew, had a right of re-entry to the entire fee. Upon Andrew’s death in 1973, his interest was devised to appellant. Thus, at the time the instant suit was brought, appellant held a right of re-entry to the entire fee.

None of the parties to the instant case disputes the interests created by the deed and subsequently passed by will or intestacy. Further, none of the parties disputes that the holder of a right of re-entry shall perfect his title after a breach of condition subsequent either by peaceable re-entry or by an action at law. Smith v. Glen Alden Coal Co., 347 Pa. 290, 32 A.2d 227 (1943). The right of re-entry in the instant case accrued in 1953 upon the death of Mary Stolarick and the breach of the condition subsequent. At that time, the holders of the right of re-entry, appellant and Andrew, were in possession of the fee, and they remained in possession continuously. As of 1953, therefore, appellant and Andrew held equitable title to the entire fee because their possession was notice to all of their equitable right. Keck v. Van Dyke, 292 Pa. 532, 141 A. 446 (1928). In order to remove any cloud on their title, however, the holders of the right of re-entry would have to commence legal action following the exercise of their right. That is precisely the basis of the instant suit brought by appellant. Ap-pellees’ sole contention is that because appellant was already in possession at the time of the alleged breach, the delay in commencing legal action precludes her from asserting her interest under the doctrines of laches, waiver or estoppel. The lower court held that appellant was precluded by laches from having her title confirmed, despite any equitable rights she may have possessed.

It is well settled that “‘[1] aches will not be imputed to one in peaceable possession of land, for delay in resorting to a court of equity to establish his right to the legal title. The possession is notice to all, of the possessor’s equitable rights, and he need only assert them when he may find occasion to do so.’ White v. Patterson, 139 Pa. 429, 438, 21 A. 360, 361; Master v. Roberts, 244 Pa. 342, 90 A. 734.” Keck v. Van Dyke, supra, 292 Pa. at 537, 141 A. 448. See also Chambers v. Chambers, 406 Pa. 50, 176 A.2d 673 (1962); Allardice v. McCain, 375 Pa. 528, 101 A.2d 385 (1953); Uniontown Savings and Loan Co. v. Alicia Land Co., 338 Pa. 227, 13 A.2d 65 (1940) and cases cited therein; Kutztown Fair Association v. Frey, 183 Pa.Super. 516, 132 A.2d 912 (1957). The dissenting opinion suggests we should ignore this well established rule because appellant was in possession at the time that her right of re-entry accrued. No such exception to the rule exists. A long accepted rule of property should not be ignored absent compelling reasons of public policy or the imperative demands of justice. Smith v. Glen Alden Coal Co., supra. In Allardice v. McCain, supra 375 Pa. at 535, 101 A.2d at 388: . . the plaintiffs were originally in possession under a lease; this type of possession was in subordination to defendants’ title and an unequivocal recognition of it. However, when the agreement of sale was executed by the parties, the plaintiff became the owners in equity and the defendants held the legal title only as security for the purchase price. From that moment on plaintiffs’ possession amounted to the adverse assertion of an equitable right.” The Court held that plaintiffs’ delay in commencing suit to secure legal title did not give rise to laches, even though plaintiffs were in possession prior to the accrual of their right to possession under a claim of title. See also, Uniontown Savings and Loan Co. v. Alicia Land Co., supra. Thus, the burden of prompt action to perfect title to land falls on the party out of possession. If any laches are to be imputed in the instant case, they must be imputed to appellees and their predecessor in title. Appellant cannot be guilty of laches because it is undisputed that she has enjoyed continuous possession from 1943 until the present.

The dissent further contends that appellant may be barred from asserting her right of re-entry by operation of waiver or by estoppel. As the lower court notes, neither waiver nor estoppel were advanced in the proceedings below. Nevertheless, neither theory would sustain the decree of the lower court.

An “ [e]stoppel arises when one by his acts, representations, or admissions, or by his silence when he ought to speak out, intentionally or through culpable negligence induces another to believe certain facts to exist and such other rightfully relies and acts on such belief, so that he will be prejudiced if the former is permitted to deny the existence of such facts.” Tallarico Estate, 425 Pa. 280, 288, 228 A.2d 736, 741 (1967) quoting Northwestern National Bank v. Commonwealth, 345 Pa. 192, 196, 197, 27 A.2d 20 (1942). The elements of estoppel are: (1) misleading words, conduct or silence by the party against whom the estoppel is asserted, (2) unambiguous proof of reasonable reliance on the misrepresentation by the party seeking to assert the estoppel, and (3) no duty of inquiry on the party seeking to assert estoppel. If all the foregoing are present, a court of equity may prevent the party who misled the other from denying his words or conduct. Tallarico Estate, supra.

In the instant case, no estoppel arises. Appellees fail to assert that appellant was silent. On the contrary, they admit that appellant and her brothers and sisters attempted to secure amicable compliance with the conditions in the deed. There is an absence of proof of reasonable reliance. Further, because appellant was in possession and because the terms of the deed were so clear, the appellees were under a duty of inquiry. Thus appellant cannot be estopped from asserting that her possession of the land was an exercise of her right to reentry.

The theory of waiver is similarly unavailable to appellees. “ ‘Equity will not lend its aid to one who has slept upon his rights until the original transaction is obscured by lapse of years and death of parties. Kinter v. Commonwealth Trust Co., 274 Pa. 486, 118 A. 392 and where a party having the right to set aside a transaction stands by and sees another dealing with the property in a manner inconsistent with his alleged claim and makes no objection, a . . . [substantial delay] will bar a suit in equity. Brown v. Kemmerer, 214 Pa. 521, 63 A. 822. . . Silver v. Korr, 392 Pa. 26, 29, 139 A.2d 552, 555 (1958), quoting First National Bank v. Lytle Coal Co., 332 Pa. 394, 396, 3 A.2d 350 (1938). For a party to assert waiver of the right of reentry on breach of condition subsequent, the holder of the right of re-entry must acquiesce in the breach, there must be a long delay, and the party asserting waiver must be able to show that valuable improvements were made on the property such that declaration of a forfeiture would be inequitable. Fidelity Insurance, Trust and Safe Deposit Company v. Fridenberg, 175 Pa. 500, 34 A. 848 (1896); Lehigh Coal Co. v. Early, 162 Pa. 338, 29 A. 736 (1894). Appellees testified that neither they nor their father ever made valuable improvements to the land. There is ample testimony by all witnesses to support the conclusion that appellees and their predecessor in title were reminded several times of their obligation under the deed to make the payments which were due when the last grantor died. There was, therefore, no acquiescence by appellant. Delay alone is not sufficient to establish a waiver.

Thus, we conclude that appellant could not be guilty of laches and that appellees have not established either waiver or estoppel. There is no dispute that neither ap-pellees’ father nor appellees made the payments required on the death of the last grantor. We, therefore, confirm sole title in appellant, the holder of the right of reentry.²

In reaching this conclusion, we have given full weight to the findings of fact of the chancellor in the court below. It is “. . . well settled that a chancellor’s conclusions, whether of law or ultimate fact, are no more than his reasoning from the underlying facts and are reviewable, especially where the underlying facts themselves are not in esse but are matters of inference and deduction. Sechler v. Sechler, 403 Pa. 1, 4, 5, 169 A.2d 78; Commonwealth Trust Co., Adm’r v. Szabo, 391 Pa. 272, 276, 277, 138 A.2d 85.” Chambers v. Chambers, supra, 406 Pa. at 56, 176 A.2d at 676. In the instant case, we do not disturb the findings of fact but merely the conclusions deduced therefrom. See Tallarico Estate, supra.

We reverse the decree and remand the cause for proceedings consistent with this opinion.

WATKINS, President Judge, files a dissenting opinion in which JACOBS and CERCONE, JJ., join.

1 . Uniform Declaratory Judgment Act, 1923, June 18, P.L. 840, § 1 et seq., 12 P.S. § 831 et seq. See Guerra v. Galatic, 185 Pa.Super. 385, 137 A.2d 866 (1958).

2 . The lower court also ordered that appellant and appellees make cash payments in accordance with the provisions in the 1918 deed. Because the propriety of this part of the court’s decree was not raised by either party, I would not reach the question.