Appeal, No. 140 | Pa. | Jul 11, 1894
Opinion by
This was an action of ejectment for breach of a condition in a deed. In 1870 the plaintiff granted the land in fee to David Maxey, who in 1874 conveyed to the defendant. The habendum of the first deed contained the following: “ Subject nevertheless to the condition that no spirituous or other intoxicating drinks shall be sold or vended on the premises.”
Upon the trial in 1893 the defendant offered to prove that liquor had been sold on the premises under license continuously since 1879, with notice to the plaintiff through its real estate agent who had signed the receipt to the deed, and that counsel of the company appeared in court to object to the license ; and that permanent and valuable improvements had been made without notice from the plaintiff of any forfeiture. This offer was rejected on the ground that nothing less than twenty-one years’ sale of liquor on the premises would bar the plaintiff of its right to forfeit the title under the condition, and the jury was instructed to find for the plaintiff.
The right of re-entry might have been enforced upon breach of the condition in the deed, if done at once or within a reasonable time ; but the condition being a condition subsequent, if the breach was acquiesced in by the grantor and valuable improvements made, a forfeiture of the estate should not, after long delay, be permitted. “ Courts of law always lean against a forfeiture, and it is the province of a court of equity to relieve against it: ” Newman v. Rutter,-8 Watts, 55. This is peculiarly a case for the application of equitable principles. The plaintiff had a right to the strict enforcement of the condition, but if with knowledge and without objection it stood by for eleven years while improvements were made to adapt the property to the forbidden use, equity will not permit a forfeiture of the estate, but leave it to its other remedies. If
The first and second assignments of error are sustained, and the judgment is reversed and a venire de novo awarded.