Hubbard v. Hubbard
97 Mass. 188
Mass.
1867
Check Treatment
Hoar, J.

It was held in this case, when it was before us at a previous term, that the condition in the demandant’s deed to the tenant had been broken, and that the estate was forfeited. On a new trial, the tenant relied upon a waiver of the breach and forfeiture, and we are of opinion that the rulings at the trial were right, and that the defence was maintained.

It is optional with the grantor of an estate upon condition, in case a breach of the condition occurs, whether he will avail himself of the same as a forfeiture of the estate thus granted. To *192do this requires action on his part; and if he is not in possession, usually requires an entry for breach of condition. Until such entry, the grantee holds his estate, liable only tc be defeated, but not actually determined by a forfeiture. Stone v Ellis, 9 Cush. 95. Under our statutes, an action has been held sufficient to indicate the grantor’s intention to avail himself of the breach of condition, without entry. Austin v. Cambridgeport Parish, 21 Pick. 215.

The plaintiff contends that being in possession when the breach of condition occurred, the estate immediately revested in him without entry or other act; and cites in support of this position the case of Lincoln & Kennebeck Bank v. Drummond, 5 Mass. 321. So far as that case is an authority for the doctrine that, where a grantor of an estate on condition is in possession, no entry is necessary to enable him to avail himself of a breach of the condition, it is undoubtedly satisfactory. Where an entry or attempt at entry cannot be made, none can be required. The authority cited by Chief Justice Parsons is Co. Lit. 218, § 350, which is only to the point that the grantor of a reversion upon condition, there being an unexpired tenancy for years, will take the reversion upon breach of condition without entry, although the grantor is not in possession, and has no right to it. It is not therefore a full authority for his statement. But the facts in Lincoln Kennebeck Bank v. Drummond show that the tenant in possession, after the breach of the condition, exercised acts of ownership; and no question of waiver arose in the case.

It is equally well settled that a mere breach of condition will not revest an estate in a grantor upon condition, except at his election ; and that he may waive the breach and forfeiture. Co. Lit. 211, b. Coon v. Brickett, 2 N. H. 163. 1 Shep. Touchstone, 153. Pennant's case, 3 Co. 64.

In the case at bar there was evidence which might well satisfy the jury that there had been such a waiver, and show that it would be highly inequitable for the demandant to insist on the forfeiture. He would not have been entitled to his support from the tenant after the estate had revested ; yet there was *193evidence that he continued to receive it for a considerable period without a suggestion that he should claim the farm as forfeited. If he treated the condition as still subsisting and obligatory upon the tenant, after the alleged breach of it, it would be a sufficient waivei.

The possession of the demandant was not that of an owner of any estate in the premises, nor as claiming title to the land; but with a wholly different purpose; and before he showed or had any intention to possess and hold the estate under and by virtue of the breach of the condition, a distinct waiver of the breach would terminate his right to avail himself of it.

Exceptions overruled.