We have concluded that the judgment should be affirmed for *Page 216 two reasons, which we shall presently state, but our duty requires us to consider the reasons urged by plaintiff for reversal, and to state why such reasons do not require or justify a reversal. Before taking up the two reasons referred to, we shall consider the other questions discussed.
1. The trial judge signed defendant's proposed findings of fact and conclusions of law. He refused to find as requested by plaintiff's counsel on any of the facts, and likewise refused all his requests for conclusions of law. He also refused to amend any of defendant's findings or conclusions. Plaintiff's counsel are justified in part at least in their criticism of this course; a few of the findings are without any evidential support, some of the conclusions of law would have been more appropriate under the findings of fact and vice versa. But if such findings as have evidential support do support the judgment and are not against the clear weight of the evidence, the judgment should be affirmed. Plaintiff's counsel most seriously criticize the refusal of the court to find that the consideration of the deed from plaintiff to the Terminal company was nominal. From plaintiff's viewpoint, this was an important fact. Numerous cases hold that conditions are not favored in the law, and numerous other cases hold that in case of voluntary conveyances, where the condition furnishes the only consideration, the courts will not hesitate about enforcing conditions or in finding that a conditional estate exists. Plaintiff testified that the consideration was nominal, and no one testified to the contrary. There was no testimony that the value of the 10 lots was more or less than the $1,500 named in the deed. Possibly the trial judge was justified in refusing to find as requested on this subject on the ground that the witness' testimony was a conclusion rather than a statement of fact. But, *Page 217 as we shall presently see, the result would have been the same had plaintiff's requested finding been signed.
Much space is taken in both briefs in the consideration of the question of whether the language used in the instrument before us created a conditional fee, a base fee, a determinable fee — a condition subsequent. In three of our own cases (Hickox v. Railway Co., 78 Mich. 615; Epworth Assembly v.Railway, 236 Mich. 565; County of Oakland v. Mack, 243 Mich. 279), this court has held that a conditional fee was created with the right or possibility of reverter. In two of these cases the conveyances were voluntary, without consideration other than the performance of the condition, and in all of them the right of re-entry for breach of condition was expressly reserved. Numerous cases are called to our attention holding that in the absence of language in the instrument giving the right of re-entry, that the remedy at law is for breach of covenant; that the language is to be treated as establishing a covenant rather than a condition subsequent. Numerous cases to the contrary are also cited. We need not decide the question. For the purposes of this case only, we may assume that plaintiff's contention is correct, i. e., that the language used created a condition subsequent.
2. The trial judge found facts justifying the application of the doctrine of estoppel if such doctrine is available as a defense in an action of ejectment, and held as matter of law, that it was available in such action. The record does not clearly show the dates when all the improvements were made on the premises, but we are persuaded that it does justify the finding that such improvements were made over a long period of years, from 1917 on. One witness testified that the classification yard was built before 1917, and that other extensions have been made *Page 218 since. The proofs show that sheds, loading docks, paving, an oil reservoir, oil distributing system, and other plant facilities have been erected by defendant, some of them on the land in question and others so connected with it that all of such improvements would be of little value if plaintiff recovered the lots here involved; a corner of one of the main buildings erected many years ago rests on a portion of one of the lots. The finding that plaintiff knew or should have known that money was being expended and the improvements were being made by defendant, and that for many years he made no protest and asserted no rights is sustained by the testimony. The rule is thus stated in 3 Thompson on Real Property, § 2053:
"A condition may be waived by acts as well as by express release. If the grantor permits the property to be used in violation of the condition, and especially if he stands by and allows valuable improvements to be made thereon, he will not be allowed to insist upon a forfeiture, and thus acquire the improvements made upon the strength of his acquiescence."
And see Barrie v. Smith, 47 Mich. 130.
Early cases tend to sustain plaintiff's contention that the defense of estoppel is not available in an action of ejectment. But the recent case of Sliwinski v. Gootstein, 234 Mich. 74, definitely commits this court to the contrary rule. This case followed and was sustained by Treat v. Railway, 157 Mich. 320 (133 Am. St. Rep. 347).
3. This brings us to the final reason urged against the right of plaintiff to maintain this action. We have noted that the deed did not by express terms reserve to the grantor the right of re-entry for breach of condition; there had been no notice or claim of forfeiture served on defendant; there had *Page 219 been no re-entry nor had there been any notice or claim of right of re-entry served. In the Treat Case there was reserved the right of re-entry for breach of condition, but the court held (we quote the syllabus):
"Real property conveyed subject to a condition subsequent, whereby title shall revest upon failure to perform the condition, may not be regained by ejectment proceedings without a notice of the particular cause of forfeiture, and of the intention to claim the right, and a reasonable length of time in which to comply."
We quote with approval from Memphis, etc., R. Co. v.Neighbors, 51 Miss. 412, 417. It was there said:
"Subsequent conditions are those which operate upon an estate already vested, and render it liable to be defeated. Under the modern system of conveyancing, the estate of freehold passes to the grantee as completely, as by the deed, as by the ancient formula of livery of seizin, and remains in him, when subject to defeasance, until resumed by the grantor or his heirs for condition broken. The mere nonperformance of the condition does not defeat the estate. It is in the election of him who has a right to its enforcement, to insist upon a forfeiture or raise it. Notwithstanding the breach, the estate abides in the grantee until it is put an end to by entry, or some act by the grantor which is equivalent to it. Until that is done, it loses none of its original qualities or incidents."
The judgment will be affirmed for two reasons: (1) That plaintiff is now estopped from asserting a breach of condition subsequent, and (2) that the suit is prematurely brought.
FEAD, C.J., and NORTH, WIEST, CLARK, McDONALD, POTTER, and SHARPE, JJ., concurred, *Page 220