This is an action by appellee against appellant and two other persons to quiet his title to certain real estate. The complaint is in two paragraphs. The first is in the usual form for such an action, with certain • allegations as to the basis of the claims made by the defendants thereto. The second, in addition to the general allegations of ownership and adverse claims contained in the first, alleges that he has been compelled to expend the sum of $400 in payment of taxes and special assessments, which have accrued against said real estate, the interest on a certain mortgage thereon, and in making necessary repairs to the dwelling house on the same, one-half of all which should
1,2. Appellee seeks to avoid a consideration of the appeal on its merits by suggesting certain alleged defects in the record, which are based in part on the following facts: The judgment is against three defendants, but' only one filed a motion for a new trial, designated in the introductory part thereof as “the defendant.” The name of the signature -to such motion is followed by the words, “Attorney for Plaintiff.” It appears, however, that appellant is the only defendant named in the caption of such motion, and we will, therefore, assume that the words, “the defendant” in the introductory part thereof refer to the defendant there named. It. also appears that the person, whose name is subscribed to said motion as an attorney, was the sole counsel of record for appellant in the trial court,
Appellant contends that the decision of the court is not sustained by sufficient evidence and is contrary to law. The following appear as undisputed facts in this case: On April 17, 1914, one Mary B. Mitchell conveyed' the real estate in question to appellee and one Mattie Price, by deed with covenants of warranty, subject to a life estate in herself, and to an agreement on the part of the grantees that they would assume and pay a certain mortgage lien on said real estate in the sum of $900, as the purchase price thereof, and would pay, as they became due, all taxes and assessments which might become a lien on said real estate during the life of the grantor, and would also keep the house thereon in good repair. At the time said deed was executed the grantor and grantees named therein entered into a written agreement with reference to said real estate, which, after reciting the execution of said deed and the existence of said mortgage, provides as follows: “It is also mutually agreed by and between the grantor and the grantees, and it is mutually agreed by and between the grantees, that they and each ,of the grantees are to pay and discharge said mortgage debt as soon as possible or within a reasonable time not to exceed ten years. Each of the grantees paying one-half of said mortgage debt, and all taxes and assessments within said time as hereinbefore stipulated. Then and in that event the party so refusing to pay the one-half of said indebted
3,4. The deed and contract in question, having reference to the same subject matter, and having been executed at the same time, will be construed together. Since the judgment in this case can only be sustained by giving effect to the provision for a forfeiture in the contract, it would be well to note, as a guide for our construction of such provision, that conditions subsequent are not favored in law, and are therefore strictly construed. Elkhart, etc., Co. v. Ellis (1888), 113 Ind. 215, 15 N. E. 249; Sumner v. Darnell (1891), 128 Ind. 38, 27 N. E. 162, 13 L. R. A. 173; Brady v. Gregory (1912), 49 Ind. App. 355, 97 N. E. 452; Taylor v. Campbell (1912), 50 Ind. App. 515, 98 N. E. 657; Sheets v. Vandalia R. Co. (1920), 74 Ind.
5. Directing our attention to the contract under consideration, we observe that two things must concur before a forfeiture can be asserted thereunder, viz.: a failure on the part of one to pay the one-half of said indebtedness, and the payment of the same by the other. It is an undisputed fact in this case that the mortgage indebtedness of $900 mentioned in the deed and contract has never been paid. Its payment is one of the principal conditions imposed in order to acquire the right to assert a forfeiture. Therefore we need not consider the extent to which appellant has failed to pay any other amounts, as appellee, by failing to pay said mortgage indebtedness, has failed to qualify himself for an exercise of the right of forfeiture. The contract does not provide that the failure on the part of one to pay any portion of the amounts assumed, and the payment of such portion by the other will confer the right of forfeiture, and in the absence of suclj provision we cannot so hold. To do so would be to violate the rule stated above, by giving a liberal rather than a strict construction to the language used, in order to enable appellee to exercise a right of forfeiture. Appellee may be fully protected in any amount he has paid as alleged, in excess of the one-half for which he is primarily liable, and this is all he has a right to ask under the evidence, as we construe the contract. We conclude that the decision of the court is not sustained by the evidence. Judgment reversed with instructions to sustain appellant’s motion for a new trial and for further proceedings consistent with this opinion.