65 N.J.L. 313 | N.J. | 1900
The opinion of the court was delivered by
Frederick A. Reichard and William Ii. Iiume were seized in fee as tenants in -common of a tract of land in the township of Linden, in the county of Union, containing about one hundred acres. By a deed bearing date March 22d, 1889, they conveyed to the defendant in fee a portion of the said tract, consisting of a strip of about a quarter of a mile in length, for the most part one hundred feet in width, and at the westerly end of the width of about one hundred and eighty feet; containing in all about •five and fifty-two hundredths acres. On the 28th of June, 1893, Reichard granted and conveyed his equal undivided one-half part of the tract to William H. Salter, in which deed
The deed from Reiehard and Hume to the defendant conveyed a fee upon a condition subsequent. Hpon such a conveyance at common law the entire fee passed and nothing remained in the grantor but a right of entry for the breach
In this case the original grantors were tenants in common. Incident to their joint estate was the right of partition, and in the proceeding for partition their interest in the premises was sold by order of the court. Whatever right or interest they had in the premises was transferred and conveyed in this judicial proceeding, and the grantee in the deed of the master acquired their title, and, by force of the statute, all the rights that the original owners had in the premises, including a right of entry. The. railroad company was not a proper or necessary party in the partition suit. It had no interest that could be affected one way or the other by the transfer of the title of the original owners to the purchaser at the master’s sale. There is no infirmity in this respect'in the title of the plaintiff or in his right to maintain this action.
It was also contended by the defendant that ejectment would not lie unless the action was preceded by an actual entry. By the common law the breach of a condition subsequent did not ipso facto produce a reverter of the title; the title in the grantee could only be divested by an actual entry for condition broken. This common law rule is not in force in this state. This court has held that in case of the forfeiture of an estate upon condition an actual entry upon the land is not necessary in order to maintain an action of ejectment. The right to enter—not an actual entry— only is required to sustain the action. Cornelius v. Ivins, supra. In that case Chief Justice Green said: "The practice has been long settled; and as an actual entry on the land is but a formal and unmeaning ceremony, devoid of any practical meaning and unattended by any real advantage,
The deed to the railroad company expresses as the consideration of the grant the covenants and agreements therein contained to be done and performed by the company, its successors and assigns, and the sum of $1,191 paid to the grantors. The fact that this deed expresses a pecuniary consideration does not prevent a recovery for the breach of the condition expressed in it. The estate granted, on whatever consideration the grant was made, was expressly subject to the condition contained in the deed. At common law, upon an entry by the grantor for breach of condition, his entry defeated the livery made on the creation of the estate in the grantee,- and consequently all subsequent estates and remainders dependent thereon were extinguished. 4 Kent Com. 12-7. In Cornelius v. Ivins, 2 Dutcher 376, 384, the deed expressed a pecuniary consideration. It also contained a condition whereby the land should revert to the grantor on the breach of the condition. It was held by this court that a breach of the condition worked a forfeiture of the estate and gave the grantor a right to recover possession, notwithstanding the deed expressed a pecuniary consideration.
The condition on which the estate was granted was subsequent and executory; the estate was executed in the grantee, but the continuance thereof depended upon the breach or performance of the condition to which it was subject. This condition was in tlie affirmative—that the grantee should forthwith from the date of the deed begin to and lay out, make, construct and keep in repair and forever thereafter maintain a double-track railway upon and over the said strip of land, and that the company should make, erect and build within three months after the completion of laying the tracks over the route of the said railway company, and thereafter maintain, a passenger station upon the aforesaid piece of land where the same, at the northwesterly part thereof, is more than one hundred feet wide. It was further provided in the deed that if the company should refuse and neglect to lay, make, construct and keep in repair and thereafter
It appears by the special verdict that the railroad company located the route of its railroad over the premises, and that the entire length of the company’s route is about five and one-half miles, of which about one-quarter of a mile is upon the premises in question. The special verdict certifies that the company, shortly after the conveyance to it, began the construction of a railroad along and over its route, and constructed the same so far as was necessary to run trains over it, on July 1st, 1890 ; that so far as then constructed the road consisted of one continuous track extending from the Central railroad of New Jersey, near Cranford, to the state line on Staten Island Sound, and the second track extending from the Central railroad, near Cranford, to a point near the land of one K., a total distance of about three thousand nine hundred feet. The special verdict further certifies that the roadbed was graded throughout its entire length of sufficient width to admit of the laying of two tracks, except for a distance of about four thousand feet at the easterly terminus, where a trestle was constructed; that double bridges were constructed over the Pennsylvania railroad where the route of the defendant’s railroad crossed the same, and over three small creeks, and that single bridges were constructed over the Long Branch division of the Central railroad, and over South Front street in the city of Elizabeth, and that said road is constructed oira trestle from a point to the west of the Long Branch railroad, all the way to the Arthur Kills bridge; that said trestle is single and the two last-named bridges are in it. The special verdict further certifies that between July 1st, 1890, and December 1st, 1891, the defendant company constructed a second track from the westerly
The material question arises upon this branch of the case whether in this special verdict there is such a finding of a breach of condition as will justify a judgment for the plaintiff. There is no time limited for the performance of the condition on which the conveyance was made. The work of constructing and putting in operation a railroad necessarily requires time, more or less, according to circumstances. Where no time is limited for the performance of a condition which is executory and in the affirmative, such as to do some act or acts or construct works, there the grantee is allowed a reasonable time within which to perform the condition,
The plaintiff is not entitled to judgment on this special verdict, nor should judgment be given for the defendant. In such cases the proper practice is to award a venire de novo. It is so ordered.