Bowen v. Bowen, 18 Conn. 535

Bowen v. Bowen

18 Conn. 535 | Conn. | 1847

Hinman, J.

The plaintiff claimed title to the demanded premises, as tenant in common with the other heirs of Elea-zer Bowen, the father of both the parties. The defendant’s title was by deed from his father to him and his brother Anthony, and a subsequent deed from Anthony, of his share or interest in said lands to the defendant. To Eleazer Bowen’s *540deed there was a condition, that it was to be void, unless the should, within a limited time, pay certain sums of money to the other children or said Jhleazer ; among whom was qle sapj Eleazer* s son, Amasa, who was to be paid one hundred dollars. This not having been paid, the plaintiff, as heir of his father, claimed title, on the ground of a forfeiture of the defendant’s title.

Amasa had transferred his claim to the 100 dollars to his brother William ; but the defendant had not been notified of the transfer, and the money had not been paid to William. At the time the money was payable, Amasa was insolvent, and was indebted to the defendant.

On these facts the court instructed the jury, that if no payment or tender of said 100 dollars had been made 4o Amasa, or to William, on or before it became due, then the condition of the deed was broken, and there was a forfeiture incurred.

This instruction was in strict conformity to the condition contained in the deed. But it is said, that the law leans against forfeitures ; and as the plaintiff is a stranger to the condition, having no interest in the money to be paid to Ama- . sa, he is not entitled to a strict performance. The answer to this, is, that the plaintiff, being one of the heirs of the grantor, succeeds to the same rights his father had, and has now the same interest in the performance of the condition, that he would have, if alive. It is true, he has no interest in the money ; but he has an interest in the land, if it is not paid ; and this is sufficient to enable him to assert and maintain his title. The object of the grantor was, to secure the payments mentioned in the condition ; and the plaintiff, representing him, has a right to see that the payments are made. Unless, then, the condition is unlawful, it must be performed, or the defendant must lose his land. We have no doubt the instruction to the jury on this point was correct.

The next question is, whether the verdict is contrary to the evidence, in respect to the entry ; that is to say, whether the entry, proved by Mr. Graves, is such as is required to be made, in order to take advantage of the forfeiture.

The case of Chalker v. Chalker, 1 Conn. R. 79. adopts as the law of this state the ancient common law, that to take advantage of a forfeiture and revest a freehold estate, which is forfeited by the breach of a condition in the grant, there must *541be an actual entry, or claim, by the grantor. The court, in instructing the jury in conformity to this principle, told them, in the language of the Touchstone, (p. 153.) that the entry for this purpose ought to be “ an open and notorious act, equivalent to investiture of land by livery of seisin, that notoriety might be given to the change of title.” The plaintiff insists, that the testimony of Mr. Graves proves such an entry as the law requires ; that though the charge was correct, by the old law, yet all that is meant by an open and notorious entry, is, that it should not be made in private ; that an actual entry, by the owner, or his agent, is sufficient; and that it is not necessary for a party to declare, at the time, quo animo he enters.

It does not seem to be necessary now. that the party should declare at the time, for what purpose he enters. Indeed, it is very doubtful, whether this was ever necessary, though it is so laid down in 1 Wms. Saund. 119. n. 1. Lord Denman, in Doe d. Jones v. Williams, 5 B. Adol. 783. (27 E. C. L. 186. 189, 90.) says : “ If a party enters to claim the premises as his own, it is not necessary for him to say, what particular act, adverse to his interests, he means to defeat.” And Park, J. says, that the authorities cited in support of the note in Mr. Serjeant Williams' Saunders, do not support that proposition. Besides, on a question so purely technical, especially as the whole doctrine of entry rests upon reasons, which, since the practice of creating freehold estates by livery and seisin, has become obsolete, do not seem to have much weight, we should certainly be governed by the more modern and less rigid rule. Still it is admitted, that the charge was strictly correct, according to the ancient authorities ; and the case of Chalker v. Chalker shows, that entry, for the purpose of taking advantage of the breach of a condition, is a thing of substance: it operates an entire change of title, which, up to the time of the entry, remains in the grantee precisely as if no breach of the condition had happened. It is, therefore, an important act, divesting one party of his title, and vesting it in another. An act of this description, so important in its consequences, it would seem, ought to be shown, by satisfactory proof.

Assuming, then, that it is not necessary for the party entering to make a declaration of his object, at the time ; we vet *542think, that this declaration is dispensed with, only because the object may as well be shown in some other way. It is laid down,in 4 Phil. Ev. 282 . (Cow. & Hill’s ed.) that “it is necessary that the entry, to gain seisin, should have been notorious, and made expressly for that purpose.” See also to the same effect Co. Lilt. 245. b., 268. a. If the entry must be made expressly for the purpose of gaining seisin, obviously the purpose must be proved. It may, undoubtedly, be proved, by the act of the party, as well as by his declaration ; but that, in some way, it should be shown, seems to be necessary, by all the authorities. Now, the testimony of Mr. Graves shows, that there was not only an omission to declare that he entered for the purpose of taking advantage of the forfeiture, but that he did not in fact enter for that purpose. It does not appear, that he had any idea that such an entry was necessary. On the contrary, it would seem that he supposed, that his title was perfected, by the breach of the condition in the deed ; and he did not enter for the purpose of revesting the title in himself and the other heirs, but because he had, as he thought, a good title, as a co-tenant. His entering for this special purpose excludes the idea that his object was, to take advantage of the forfeiture. He did not enter in order to gain possession, but in order to show that the defendant denied his right. He does not, therefore, go to the tenant and request him to acknowledge his right, but to the defendant, at his house, not on the land, in order to be sure that his right is denied. Mr. Hilliard, in his law of Real Property, p. 83. ch. 2. pi. 21. states, as the result of all the authorities on this subject, “ that the entry must be made, not by consent, invitation or hospitality of the occupant, as for instance, to remove the goods of the party entering, but with the intent to gain seisin, animo clamandi, and must be accompanied by some act or declaration, showing such intent.” We do not think the evidence of Mr. Graves proves such an entry ; and as without such proof, the plaintiff could not recover, there must be a new trial.

In this opinion the other judges concurred.

New trial to be granted.