Gillis v. Bailey

17 N.H. 18 | Superior Court of New Hampshire | 1845

Parker, C. J.

We are clearly of opinion that the building erected by the defendant, and the addition after-wards made to it by him, were in violation of the condition in the deed to Gay, under which the defendant held his title, and by which, therefore, he was bound. The original building contained substantially three separate tenements, and the addition to it contained three more. It seems clear that the whole was expressly designed for the occupation of six families, and that the expedient of constructing doors, so that there could be a communication from one tenement to another, through all parts of the building, was an unmistakable attempt to evade the force and effect of the condition by a mere subterfuge. The building is substantially a block of six houses, and a jury must have so found.

The condition being broken, the grantors were entitled to enter for the breach, and there is no question made that the notice and the entry were regular, if there was a breach.

But'the defendant maintains his position that the plaintiff has no right, because the lease to him was executed by Read without any sufficient authority. It is not material to inquire whether Read had, by virtue of his authority as agent, power to make leases of the lands of the company, in the manner in which he has made them before this transaction. If that were admitted, the power eould not extend to this case. The evidence that it was a .part of the authority of the agent, being derived, not from any express words, but from the exercise of the power, with the knowledge and approbation of the corporation, as if it were authorized, the power must be regarded as limited to the description of cases in which it had been exercised, and which serve to prove its existence; and it could not therefore be deemed to extend to cases dissimilar in their character. Such evidence could not sustain an inference that the power extended to cases like the present, because here the land was held adversely under a title from the corporation itself. The general authority of the agent could not authorize him to interfere with the tenants of land which the corporation had sold, to judge whether the condition upon which it was held had been performed, and to enter to enforce a forfeiture of the possession, upon a supposed breach. This appears to have been understood. A special authority was conferred upon the agent, and we must look to this for his powers. It appears that he was authorized to give notice, and to take possession of buildings which had been erected in violation of the conditions, and to hold for the corporation. JBut we find nothing in the vote conferring a power to make a lease, in order that the lessee might bring ejectment to try the title, and such a power cannot be regarded as incidental to an authority to enter and hold. "When, “upon the entry, the tenant refused to give up the possession, the corporation had a right of action, but the agent had no further power except to hold, and remove the tenant, if he could do so peaceably.

There may he another question, to wit: whether the corporation has ratified this lease, so that it can be made available in support of this action. The case finds that the lease was made to enable the plaintiff to bring this suit. It may be supposed, therefore, that the action is broughtfor the benefit of the company. Assuming, — which certainly does not distinctly appear,— that the suit is brought or prosecuted by the corporation, in the name of the plaintiff as lessee, to try the title, can this operate as a ratification which will relate back, and render this a good lease to sustain the suit ? If the defendant has ousted the . plaintiff, as alleged, it was before the action was instituted. It is apparent that the suit itself cannot make the defendant a wrong-doer as regards the plaintiff, for .matter which , occurred prior to the institution of the suit, unless it renders the lease valid as of a time anteripr to the act which is regarded as wrongful. But this it cannot do. The plaintiff had no title up to the time when the suit was commenced, and of course the defendant had not ousted him up to that time. The commencement of the suit cannot, as a ratification of the lease, give him a title, and make the acts of the defendant a previous ouster, by relation back to the time when the lease was executed.

Verdict set aside.