Lamb v. Clark

29 Vt. 273 | Vt. | 1857

The opinion of the court was delivered by

Isham, J.

This is a action of ejectment for land in Halifax. The declaration contains two counts, in the first of which the plaintiff counts upon a title in severalty to the whole of the premises, and in the other upon a title to an undivided half. It appears in the case that one Ross Lamb was the owner in fee of these premises, and that in November, 1850, he conveyed the same to his two sisters, Naoini and Priscilla Lamb, in fee. The use of the premises is declared in the habendum of the deed to be to them and their heirs forever, provided they pay and discharge all the just debts of their grantor. It is insisted that under that conveyance, the grantees took an estate in joint tenancy, and that upon the decease of Priscilla Lamb, which took place in March, 1851, the title to the whole premises vested in the plaintiff in severalty, by right of survivorship. Such would be the effect at common law, if a joint tenancy was created by that deed, The Comp. Stat. 382, secs. 2, 3, however, provides that all conveyances made to two or more persons shall be construed to create estates in common and not in joint tenancy unless it be expressed therein that the grantees shall take the land as joint tenants. It is also provided that the act shall not extend to conveyances where from the instrument a trust estate is created. There is certainly in this case no expressed intention to create a joint tenancy, and in no sense can this deed be regarded as a conveyance of these premises in trust. The premises were not conveyed to the grantees to hold in trust for the use and benefit of the grantor or of any other parties, but the use is expressly declared to be for the benefit of the grantees forever. The provision that the grantees shall pay the just debts of their grantor may operate as a defeasance or as a condition subsequent, and their title to the land may be defeated, possibly, by a refusal to pay the debts; but the relation of trustee and cestui que trust is not created by that deed. It is a matter, therefore, of express provision in the statute, that the grantees in thát deed take an estate as tenants in common, and not as joint tenants. In that view of the case it is obvious that this plaintiff cannot recover for the undivided half of this land which was owned by her sister, Priscilla Lamb. It is not pretended that there has been any conveyance of her right to the plaintiff, and as tenant in common the plaintiff cannot claim her interest in the premises by survivorship. It is unnecessary, therefore, in this Case to inquire whether the defendant has obtained a valid title to the undivided half of the land which was owned by Priscilla Lamb under the deed of her administrator, for whether he has such title or not the plaintiff has shown no title to it which will enable her to recover that portion of these premises in this action.

The whole inquiry in the case is therefore resolved into the question whether the plaintiff can recover the undivided half of the premises which were conveyed to her by the deed of Eoss Lamb. The defendant is in'possession of the land and claims a title to that portion of the premises under a deed from the plaintiff to him, by which she conveyed under covenant of warranty an undivided half of the premises, subject to the provision that the defendant shall pay all her just debts and liabilities, and shall, in all respects, through life, give to her a suitable and comfortable support mid maintenance in sickness and in health. If these conditions are not complied with it is provided that the deed shall be void. ’We can entertain no doubt that it was the intention of the parties that the premises were to stand as security for the performance of those conditions and that for their non-performance the plaintiff would be entitled to recover the premises at law in this form of action. The case of Wilder v. Whittemore, 15 Mass. 262, is very similar in this particular to this case, and on this point would seem to be decisive. The condition of that deed was that the mortgagor should maintain and support the demandant and her husband during their respective lives, or the deed should be void. It was held that the demandant had a right to be supported wherever she chose to live, provided they did not create needless expense; and for any neglect to make such provision the premises could be recovered at law.

We think, however, from the facts found by the referee that the plaintiff has failed in showing a breach of any of the conditions of this deed. It is' stated in the report that until the marriage of the •defendant he gave to the plaintiff her support, and discharged the •obligations he had assumed to her satisfaction. In October, 1853, and after the defendant’s marriage, the plaintiff left the’ house of the defendant, saying that she should live with him no longer» The referee has found that this was occasioned by a misunderstanding between the defendant’s wife arid the plaintiff, and that the •difficulty was such as to render their living together destructive to the happiness of both. The misunderstanding was the result, the referee states, of their mutual faults. Without saying whether the plaintiff was justified in leaving the defendant in consequence of that disagreement, or on the ground of the change in the defendant’s relation by marriage, or whether she has a legal right to call for support at any other place when without any fault on the part of the defendant or his family, he offers to give the plaintiff proper support in his house, it is sufficient to observe that if she has that right it is necessary that it should appear in the case that there is on the part of the defendant a wrongful neglect to perform those conditions. The fact is found by the referee that since the plaintiff left the defendant’s house she has never called for or demanded any assistance or support from the defendant nor made any claim to the land or the possession of it until the commencement of this action. If the plaintiff leaves the house of the defendant and desires her support elsewhere, the defendant cannot be said to be in fault for not furnishing her support and maintenance until a request for that purpose has been made, or at least, until he has been notified that she is in need of it.

We think for that reason there has not been such a breach of that condition as will operate as a forfeiture of his interest in the land, neither does the ease show a breach of the condition in the non-payment of the plaintiff’s liabilities. There is no pretence that that ground of complaint exists except in the non-payment of a claim due the defendant’s father, all other debts having been paid by him. In relation to that debt it appears that he has never been called on for payment, nor does it appear that the plaintiff has paid it or in any way been damnified in consequence of it. There has been no refusal to pay the debt by the defendant and for aught that appears the delay was by their mutual understanding.- Under these circumstances we think this action cannot be sustained.

The judgment of county court is affirmed.