Legal Memorandum: Enforcement of Forfeiture Conditions

Issue: Will Texas courts enforce a condition in a deed that calls for a forfeiture for failure of a condition subsequent?

Area of Law: Litigation & Procedure, Real Estate Law
Keywords: Forfeiture; Failure of a condition subsequent
Jurisdiction: Texas
Cited Cases: 891 S.W.2d 276; 89 Ind. 375; 727 S.W.2d 586; 267 S.W.2d 781; 138 S.W. 381; 25 S.W.3d 811; 145 S.W.3d 809; 597 S.W.2d 795; 574 S.W.2d 233; 961 S.W.2d 645; 136 S.W. 1053; 304 S.W.2d 400; 75 S.W.3d 606; 221 S.W. 952; 660 S.W.2d 521; 802 S.W.2d 643; 214 S.W.2d 925; 398 S.W.2d 93; 47 S.W. 808; 207 S.W. 937
Cited Statutes: Tex. Civ. Prac. & Rem Code §§ 16.026, § 16.021(1)
Date: 01/01/2005

  In Daggett v. City of Fort Worth, 177 S.W. 222 (Tex. Civ. App.—Amarillo 1915, no writ), Mr. and Mrs. Daggett had conveyed to the city, for nominal consideration, a parcel of property subject to the condition

that said premises shall be used for free school purposes, and that said city of Ft. Worth will erect a suitable schoolhouse or schoolhouses thereon, or the above-described premises shall revert to said E.B. and E.J. Daggett, but we will allow said city of Ft. Worth twelve months from this date to finish said schoolhouse or schoolhouses.

Id. at 222.   The school was erected as required and the plaintiff operated the school for twenty-six years, but the city then discontinued the use of the school upon the erection of a new one in the same ward.  Id.

The Daggett court first considered whether the above-quoted clause constituted a condition subsequent, upon which a forfeiture could be declared for a failure of performance.  Id. at 223 (citing So. Tex. Tele. Co. v. Huntington, 104 Tex. 353, 136 S.W. 1053, 138 S.W. 381 (1911)).  Conditions subsequent, the court noted, must be created by express terms or by clear implication and must be strictly construed.  Id. (citing Huntington).  The Daggett court concluded that the clause under consideration in that case was indeed a condition subsequent, first for the erection of a school building within the requisite period, and also with regard to the requirement that the premises be used for free […]

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