7 F. 634 | U.S. Circuit Court for the District of Western North Carolina | 1880
(in response to the arguments of counsel.) I have listened with pleasure, and have been much interested in and benefited by the able and elaborate arguments of the counsel in this case. They have discussed legal questions whieh aro not of frequent occurrence in the courts, and I am pleased to find that they are so familiar with the old learning of the common law.
In determining the questions which I regard as material at this stage of the case, it is not necessary for me to consider and decide many of the intervening points presented in the arguments. These points may become material if the jury should determine the issues of facts to be submitted in favor of the plaintiffs. I am of opinion that part of the plaintiffs, under the grants set forth in the pleadings, acquired a feosimplo interest in the minerals and metals in the lands described, and also the privilege of using said lands, as far as necessary, for the purposes specified in the grant. In England since the act 8 and 9 Yict., and in this state since the act of 1715, freehold interests in lands may be conveyed by a simple deed of grant, and it is not necessary to use livery of seisdn, or deeds with sufficient consideration to operate under the statute of uses. In this state such grant, duly executed and registered, will be valid, and pass a freehold estate in lands, even without a consideration, if it does not
The continuance of the estate conveyed to the grantees, in the grant before us, was dependent upon the performance of the condition subsequent expressed in the grant. By the terms of the condition it was to be performed by the grantees “at their own convenience and time.” As the grantors derived no immediate benefit in consideration of the grant, and were to receive profits only upon the performance of the condition, it was the duty of the grantees to perform the condition subsequent in a reasonable time. What a reasonable time is the law does not accurately define, but leaves that question to be decided by the judge according to the facts and circumstances of a case, as admitted by the pleadings or as ascertained by the finding of a jury. As the evident intention and motives -of the grantors, in executing the grant without any present consideration, were that they might receive continuous profits from the working of the minerals and metals in the lands, the obligation of the grantees was continuous; and if they failed to open the mines, or discontinued to work them when opened, and did not resume operations in a reasonable time, their estate, under the grant, would be forfeited by this breach or non-performance of the condition subsequent contained in the grant.
The doctrines of estates upon condition seem to have been originally derived from the feudal law. A tenant was under obligation to render continuous service, and if he neglected to perform his service the lord could, by a writ of cessavit, obtain possession of the fief, as such continuous service was the consideration for the grant of the estate.
It was insisted, on the part of the plaintiffs, that at the common law the breach of a condition subsequent did not absolutely determine the estate; that a freehold could only be defeated by an entry or claim made on the part of the grantor or his heirs, and until that was done the estate lost none of its original qualities and incidents, and that this right of entry or claim could not be assigned to a stranger to the conveyance. It was also insisted in the argument that,
It is a well-settled rule of the common law that the breach or non-performance of a condition annexed in the grant of a freehold estate does not cause an immediate cesser of the estate without a re-entry or claim by the grantor or his heirs, for the purpose of enforcing a forfeiture, although the grant may contain express words declaring it ipso facto yoid. As a freehold, at the common law, could only be created by the notoriety of livery of seizin, there was needed a corresponding notoriety in order to determine it. This rule was not applicable to estates for years, as they commenced without livery of seizin, and could determine without re-entry. As, under the statutes of uses, devises, and grants, the ceremony of livery of seizin is dispensed with in the creation of freehold estates, it would seem that the ceremony of re-entry for the breach or non-performance of a condition ought to he dispensed with; but the old rule of the common law is still preserved, upon the principle that an estate commenced by a solemn act, viz., a grant, must be defeated by an act equally solemn, upon the maxim of the common law, co ligamine quo ligaiur.
At the common law there is a distinction between a condition that defeats an estate but requires a re-entry, and a limitation or condition in law that determines the estate without entry. Words of limitation circumscribe the continuance of the estate and mark the period which determines it. Under certain conveyances, owing their existence to the statutes to which we have above referred, in which livery of seizin is dispensed with in the creation of freehold estates, a condition may be annexed to such estate, and upon a breach of the same the estate will immediately cease as to the first taker and pass over to a third person, to whom limited, and take effect in possession without entry. It is not necessary for me to consider these doctrines of limitations and conditional limitations, as the terms of the grant before us are in
In our case the grantors remained in possession of the premises from the date of the execution of the grant, and in 1873 alienated the same to the defendant corporation; and it is a question of fact, to be determined by a jury, whether they did any act amounting to a waiver of any breach of condition on the part of the first grantors.
In the books upon the subject of estates upon condition, there are many nice constructions of the courts as to what words make a condition with a clause of re-entry, or without such clause expressed in the deed. This learning has been elaborately presented in the argument, but it is unnecessary for me to consider the question to much extent, as it is well settled that where there are express words in a deed, which of themselves make a condition, (as in this case, “on the following terms and conditions,”) there is no need of
In this case, as it is stated in the pleadings and conceded in the argument that the defendant grantors remained in possession of the premises in controversy, I am of the opinion that they became revested with the estate conveyed if there was a breach of the condition expressed in the grant, unless they did some act which waived the forfeiture occasioned by such breach. Proper issues may be framed to enable the jury to ascertain from the evidence and find by their verdict whether there was a breach of the conditions expressed in the grant, and whether there was a waiver of such breach on the part of the grantors. The court will instruct the jury upon the question of reasonable time in the performance of the conditions.
The jury being empanelled, it was conceded by both parties that the grantees did some work on the premises, in making explorations for minerals and metals, in the year 1854, and had done no work since that time.
The jury, after- the charge of the court, .returned a verdict for the defendants.