26 N.J.L. 376 | N.J. | 1857
delivered the opinion of the court.
This action was brought in the court below, by the defendant in error against Cornelius, to recover possession of a tract of land in the county of Ocean. The lessors of the plaintiff claimed title by devise from their father, Anthony Ivins. The defendant claimed title under a deed from said Anthony Ivins and Sarah, his wife, to Timothy Wiggin and William Hurrey, trustee of Adeline W. Torrey, dated the twenty-first of March, 1842. The validity of the said conveyance from Ivins and wife is not questioned, but the plaintiffs insist that the estate thereby conveyed has been forfeited by a breach of the conditions contained in the deed. Whether such forfeiture has been incurred, is the question submitted for consideration.
The deed conveys a lot of land on Toms river, and a strip of land thirty feet in width extending from said lot across the lands of the grantor, “ the several courses most suitable or available for a rail or tramway,” four miles
The conveyance is declared to be made upon, and subject io, the following conditions, viz.:
1. That the grantees, their heirs or assigns, shall not erect or construct any building upon ihe premises conveyed, except the said rail or tramway and docks and wharves, and a store-house for their accommodation, with the necessary appurtenances.
2. That the grantees, their heirs or assigns, shall not convey the said premises, or any part thereof, without first offering the same to the grantors, their heirs and assigns, and giving to them sixty days5 notice of such intended sale, and permitting them to purchase the lands, with all the improvements thereon, at ten dollars per acre.
3. That if the grantees, their heirs or assigns, should at any time wholly cease to use the said rail or tramway for the purpose of transportation or conveyance, or suffer the same to go entirely out of repair and to become unfit for use, or cease to use the same for transportation or conveyance, for the space of five whole years, that then, or in either of said cases, or on failure of any or either of said conditions, the deed and the estate thereby granted should cease, determine, and become utterly void, and
However inartificial and nntechnical the deed may be in its structure and in many of its provisions, there is no possibility of mistaking the intention of the parties. The design of the conveyance was to vest the land in the grantees for the sole and exclusive purpose of constructing thereon a rail or tramway, with wharves at its termination upon navigable water, and the necessary store-houses and buildings for the convenience of the road in carrying on the business of transportation.
It is equally clear that the stipulations in the deed are not covenants merely, but conditions, the violation of which was designed to effect, and does in terms involve a forfeiture of the estate. There is upon this point no room for the rules of interpretation, to decide whether the clauses of the deed operate as covenants or conditions. Rules of construction can only apply in cases of doubt or of the interference of legal principles.with the plain import of language. Two questions only can arise upon the operation and effect- of these conditions, viz. :
1. Are they or either of them valid ?
. 2. Have they been violated ?
Whatever doubt or difficulty might exist at common law in regard to the first, two conditions, there can be none in regard to the third, which relates to the continued maintenance and use of the road. Though the deed was founded upon a pecuniary consideration, it is obvious that an important inducement to the conveyance was the benefit and advantage to the grantor, derived from the construction and continued use of the -road across and contiguous to his lands. The condition was beneficial to the grantor, and entering into the consideration of, and operating as an inducement for, the grant, it was not unreasonable. If the land was sold by the grantor, and purchased by the grantees for the sole purpose of construct
But it is objected, that if the condition be valid, the right of entry for breach of the condition is limited to the grantee and his heirs, and did not pass by devise to the lessors of the plaintiff. Such was the well-settled rule of the common law recognized and adopted by this court in Southard v. The Central Railroad Co., ante 21.
It was further held in that case, that the act of March 14th, 1851, authorizing the transfer of estates in expectancy (Nix. Dig. 126, § 32,) has altered the rule of the common law. That act authorizes the transfer of a right of entry for condition broken, or other future estate or interest in expectancy, by will or deed executed after the act went into operation. The act, by its terms, took effect
It is further insisted that an actual entry is necessary in order to maintain the action.
As a general rule, it is not neeessary to make an actual entry on land in order to maintain the action of ejectment. The right to enter, not an aetual entry, is requisite to sustain the action. Hylton’s Lessee v. Brown, 1 Wash. C. C. R. 204; Den v. McShane, 1 Green 40; Siglar v. Van Riper, 10 Wend. 414; Lessee of Rugge v. Ellis, 1 Bay. 111; Adams on Eject. 10.
And even where, upon strict common law principles, an entry is necessary, as in case of the forfeiture of an estate upon condition, to complete the title, an actual entry is not necessary to maintain ejectment. Thus in Langhorne v. Merry, 1 Siderfin 223, the court held that an entry should be intended till the contrary is proved. So it has been held, in a series of cases running back for more than a century and a half, that the formal confession of lease, entry, and ouster is sufficient to maintain an ejectment for the recovery of a forfeited estate upon condition broken, and that actual entry is not necessary, except to award a fine. Little v. Heaton, 1 Salk. 259; S. C., 2 Ld. Ray. 750; 1 Vent. 248; Oates v. Brydon, 3 Burr. 1897; Jackson v. Crysler, 1 Johns. Cas. 125; Goodright v. Cator, Douglass 485.
In Chalker v. Chalker, 1 Conn. 79, a different doctrine, as applied to the action of disseisin, used in that state, is main
In this state there is no express adjudication upon the point ; the practice is believed to have been uniformly in ■accordance with the principle maintained in England and New York. In Den v. The Lawrence Church, Spencer 551, no evidence of an entry was offered on the part of the plaintiff. In the more recent ease oi Den v. The Central Railroad Company of New Jersey, ante 13, the point was ■ raised, though not pressed by counsel, that a demand -of possession was necessary; bat the necessity of a formal entry to complete the title was not suggested. 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, there can be no -utility in enforcing it, however strong the technical reasons in its support. In Goodright v. Cator, Lord Mansfield, in delivering the opinion of the court, said, "we look upon it as having been fully settled in 1703, by the opinion of all the judges, upon deliberation and consideration -of all the «cases, that actual entry is only necessary to avoid a fine; and so the practice has been ever since. The reason of the thing is agreeable ■to the practice, for it is absurd to entangle men’s rights in nets of -form without meaning; and an ejectment being a ■mere ■creature of the court, framed for the purpose of bringing the right to an examination, an actual entry can be of no service.”
The judgment must be affirmed.
«Cited m McKelway v. Seymour, 5 Dutch. 332.