11 Me. 318 | Me. | 1834
The opinion of the Court was delivered in Cumberland, at the term holden by adjournment in August ensuing, by
The deed, upon the construction of which the rights of the parties depend, is very inartificially drawn; but taken altogether, we think it may be deduced as the intention of the parties, that the fee of the land should pass to the grantee, subject to be defeated, if the conditions were not performed, which we must regard as subsequent, and not precedent. Whether a condition is precedent or subsequent, must be determined by the intention of the parties; and not upon technical terms, or upon the collocation of. the words used. 3 Com. Dig. 88; Botham v. The E. I. Comp. 1 T. R. 638; Worseley v. Wood, 6 T. R. 710; Howard v. Turner, 6 Greenl. 106. The stipulation, that the grantee should come into immediate possession, seems to have been introduced for the express purpose of avoiding the construction, that he was to have nothing, until the conditions were performed. He was to have immediate possession, upon the conditions expressed.
It has been urged, that as the heir at law only could enter for condition broken, the object of the grantor in providing for the maintenance of Hannah Butterfield, a stranger, might be defeated ; she having no legal remedy. It is plain that he did not intend that the grantee should have the land, unless he fulfilled the conditions ; and he has in that case made no limitation over in favor of Hannah Butterfield. If the conditions should be construed to be precedent, it would be at the option of the grantee, whether he would perform them or not. If subsequent, and it is for the interest of the grantee to hold the land, which may be presumed, he can be secure of the estate only by affording the maintenance. Whether, if the land should be reclaimed by the heir at law for condition broken, she may not.hold it subject to the support of Hannah Butterfield, regarding the deed in question as a declaration of trust to this effect, we are not called upon to decide.
At common law there could be no feoffment, without livery of seizin ; hence in England, and doubtless also in New- York, deeds not accompanied with this ceremony, can never be regarded as feoffments. It is otherwise in Massachusetts and in Maine. In both States, it is provided by statute, that all deeds or other conveyances of land, signed and sealed by the grantor, having good and lawful right or authority thereunto, shall be valid to pass the same, without any other act or ceremony in the law whatsoever. And it has accordingly been holden, both in Massachusetts and in this State, that a deed may have the effect of a feoffment, if necessary to uphold the lawful intention of the parties. Marshall v. Fisk, 6 Mass. 24 ; Emery v. Chase, 5 Greenl. 232.
Without being satisfied that there is no consideration for this deed, according to the case of Jackson v. Florence, it may be stated that our statute has not made a consideration essential to the conveyance of lands. If purely voluntary, it is good between the parties ; although liable to be defeated in favor of creditors. At common law a feoffment was valid without any consideration,
It appears to us that there is no legal objection to the operation of the deed under our statute, giving it the effect of a feoffment; and we therefore hold, that it did operate to pass a title to the tenant, subject to be defeated by a breach of the conditions mentioned therein.