| Me. | Jul 1, 1851
The city of Bangor claims the premises by virtue of a deed from Philip Coombs, Philip H. Coombs and others, dated March 26, 1835, accepted by a vote of the board of aldermen, and of the common council, on April 11, 1835, and recorded Feb. 24, 1836, upon the condition that the premises be inclosed as a common and be kept by the
The tenant derives his title from the levy of certain executions against Philip Coombs and Philip H. Coombs, issued upon judgments rendered in actions against them on certain drafts, all bearing date subsequently to the execution and delivery, and the registration of the deed to the city. And he offered to show, that, at the time of the conveyance of Philip H. Coombs and Philip Coombs to the city, they were actually insolvent, as proof of constructive and legal fraud; and it was at the same time stated by the tenant’s counsel, that they should offer no other evidence of fraud of any description. And they offered to show further, that the bill of exchange for the recovery of which one of the actions was brought that resulted in a judgment, for the satisfaction of which, a levy was made, was the renewal of paper, which originated sometime in the year 1835. The evidence so offered, on being objected to, was excluded.
Assuming that the deed of the tenant’s debtors was a voluntary conveyance, and wholly without consideration, can the tenant avail himself of this fact, to avoid the deed, on proof that these persons, who were grantors therein were insolvent at the time when they executed the deed ? The doctrine of the law is too well settled 'upon this point to need further discussion. This Court gave full consideration to the question in the case of Howe v. Ward, 4 Greenl. 195, and in Clark v. French, 23 Maine, 221, and the principles announced in each have been uniformly adhered to in this State.
But it is insisted, that in one of the judgments the tenant is to be treated as an attaching creditor before the constructive notice to him in the record of the deed to the city, inasmuch as the foundation of that judgment was a draft for paper originating anterior to that time. This draft on which the action was commenced was negotiable, and where such have been taken for a preexisting debt, it has been held in this State and in Massachusetts, that the prior debt was thereby paid.
The condition is manifestly subsequent in its character, and this is admitted by the tenant’s counsel. And “ it is a rule of the common law, that none may take advantage of a condition, but parties and privies in right and representation as heirs, executors, &c., of natural persons, and the successors of politic persons; and that neither privies nor assignees in law, as lords by escheat, nor as grantees of reversions, nor privies in estate, as he to whom a remainder is limited, shall take the benefit of entry or reentry by force of a condition.” 1 Shep. Touch. 149. Chancellor Kent remarks, that “ conditions’ can only be reserved for the grantor and his heirs. A stranger cannot take advantage of the breach of them. There must be an actual entry, for the breach of the condition.” 4 Com. <§, 56; Stearns on Real Actions, 24.
But the counsel for the tenant contends, that as a creditor may take in execution for his debts, among other things, “all rights of entry into land” of his debtor, R. S. c. 94, § 1, the levy upon the premises was effectual to pass the right of entry on the ground of a forfeiture for the breach of the condition in the deed, to the tenant, as a creditor, and his subsequent actual possession has made perfect to him the title in the premises.
The right of entry referred to, in the statute relied upon, is undoubtedly the first and most simple remedy for one, who has been ousted or dispossessed of a freehold. It is for the purpose of revesting an estate, of which the claimant or his ancestor or predecessor has been unlawfully deprived, and is different in some respects from the right or title of entry for a forfeiture on breach of a condition. Jackson on Real Actions,
The statute gives the right to the creditor to levy his execution upon “all rights of entry” in the land of the debtor in the manner mentioned in this chapter. And it is provided in the 18th § of c. 94, “ when an execution is levied on land into which the debtor has or is supposed to have the right of entry, and of which any other person is then seized, the officer shall deliver to the creditor a momentary seizin and possession of the land, so far as to enable the creditor to maintain an action therefor in his own name, and on his own seizin.” It is evident from this section, that the entry before referred to is that entry to which a party who has been dis-seized, or one who succeeds to his place, has a right, in order to regain that possession which has been usurped by one, who had no right to the land.
The statute contains no provision, by which a creditor can, by a levy of his execution upon land conveyed by his debtor in a deed containing a condition subsequent, acquire the rights of the grantor, and claim the estate for a breach of the condition. And it cannot be admitted, that so important a change as that contended for in behalf of the tenant, in the common law, would follow from the provision, that “ all rights of entry into lands” of the debtor may be levied upon by his creditor. On the construction contended for, the right would exist without any remedy expressly provided, by which it could be enforced and made available.
The evidence offered to show, that the tenant’s levies were delayed for the purpose of allowing prior attaching creditors to levy on demands existing previous to the conveyance to the city, and that such creditors did levy upon large portions of the lands of Philip Coombs and Philip H. Coombs, could have no legitimate effect upon the case. We are to look only to the premises on which the tenant made his levy, and determine whether he was a creditor, prior or subsequent to the record of the deed thereof to the city; and the rights of neither party can be affected by such delays and the levies made by other creditors.
It is contended, that the deed to the city is void, because the city was not legally authorized to receive it, coupled with a condition, that the premises should be enclosed as a common. It is denied that the city can make an appropriation to enclose a common. This is a point, which was not raised at the trial, and cannot now with propriety be considered. The city charter and by-laws are not referred to in the case, and we cannot decide, that the city have not the authority to enclose a parcel of land for a city common. But in this question the tenant has no lawful interest, because such a deed is good, until avoided by the grantor himself or by some one privy in estate. Inhabitants of Worcester v. Eaton, 13 Mass. 371" court="Mass." date_filed="1816-09-15" href="https://app.midpage.ai/document/inhabitants-of-worcester-v-eaton-6404494?utm_source=webapp" opinion_id="6404494">13 Mass. 371.
The deeds from Coombs to Orin Favor and thirteen others, were admitted in evidence for the city, against the objection of the tenant, and also the contract executed by Amos M. Roberts and others. The decision of the case against the tenant has been put upon other grounds, than that which would render this evidence material. These documents could have had no effect whatever upon the verdict, as it was directed to be rendered, and the tenant was not injured thereby. Exceptions overruled.
Judgment on the verdict.