67 Vt. 203 | Vt. | 1894
The intestate and defendant, September 4, 1889, to effectuate a contract then entered into, executed and delivered three written instruments. Over the intestate’s signature, under seal, he executed a warranty deed to the defendant containing the usual covenants, except against a mortgage resting on the premises, and, over his signature, without seal, he executed a bill ol sale of certain personal property to the defendant. Then signed by both was an instrument which reads :
“Whereas, I, Hirarft Norton, of Addison, in the county of Addison, and state of Vermont, have this day given a warranty deed of my home farm, in said Addison, together with a bill of sale of certain articles of personal property to John Perkins, of Crown Point, N. Y., upon the condition that the said John Perkins, his heirs, executors or adminis*210 trators shall furnish me a good support in sickness and health during my natural life, meat, drink, clothing, lodging, spending money, doctors’ bills paid, suitable horse, harness, and buggy or cutter, for me at all times seasonable to drive and use, all of which if well and faithfully done, the said property to vest in and belong to the said John Perkins or his heirs, executors or administrators.”
The writings were on separate papers, but all placed on record in the town clerk’s office. The defendant does not contend that if the writing, expressing the condition, can be read as a part of the deed and contract, the title to the farm ever passed to him, except conditionally, and he admits that the plaintiff can recover in ejectment if he shows that he has. failed to perform the conditions ,• nor does the plaintiff contend that he can recover unless it can be read as a part of the deed and contract.
I. Hence the first contention is, whether the writing expressing the condition can be read as a part of the deed and contract. The three written instruments were made to effectuate one contract and should be read together, unless there is some well established legal principle which forbids it. Only by so reading them can the contract be ascertained. If the condition had been written into the deed, it was the deed of the intestate, or a deed poll. By accepting it, the implied and expressed agreements to be performed by the defendant would not be under seal. Covenant could not be maintained on them. Johnson v. Mtizzey, 45 Vt. 419. In Whitney v. French, 25 Vt. 663, and Graham v. Stevens, 34 Vt. 166, it is held, where the condition to a deed poll is written on its back — in the one unsigned, and in the other signed by the person accepting the deed — that the title passed only conditionally. This was so, not because of any covenant to that effect by the grantee. It was so, because by accepting it he obtained no greater rights than was evidenced by the entire contract. The question is not whether, if, by the deed, the title passed unconditionally to the defendant; a conditional
II. Subsequently, on the trial, the plaintiff conceded that the parties understood that the defendant was to furnish the support upon the premises in contention. The defendant immediately entered upon the execution of the contract. The intestate remained with him, and received the support given until April 12, 1892, with the exception of absences from sometime in June, 18go, to July 4, 1890; from sometime in February, 1891, to sometime in April, 1891 ; and from the last of August, 1891, to November 4, 1891. The intestate spent these absences with his children and friends in the immediate neighborhood. The plaintiff claimed, and gave some evidence which will be considered later, that the absences were occasioned by the failure of the defendant to perform the condition of the contract in 'regard to support. The returns of the intestate were voluntary and uninfluenced, so far as is shown, b}^ the defendant. Immediately on each return the defendant entered upon furnishing the required support, and the intestate received it without protest or reservation. Under these circumstances the defendant requested the court to charge :
‘<The jury are at liberty to infer from the circumstances developed in the evidence, that any breach of the condition, occurring before November 4, 1891, the last time he returned to the defendant’s house, was waived by the intestate. If so waived, it could not be afterwards set up as a forfeiture.”
The court did not,comply with this request in terms, nor in substance. In this we think there was error. By the contract the intestate had no right to call upon the defendant for support, and at the same time claim that no contract requiring him to furnish such support existed between them. The two positions were inconsistent and could not be held by the intestate at the same time, certainly not without protest and notice. He could not, under the contract, call
“If he treated the condition as still subsisting and obligatory upon the tenant, after the alleged breach of it, it would be a sufficient waiver.”
See, also, Crops v. Carson, 8 Black. 138, (44 Am. D. 742, and an extended note collecting and reviewing the authorities). What is held and said in Dunklee v. Adams, Admr., 20 Vt. 424, on the subject of waiver of a forfeiture is not inconsistent with the present holding. The question under consideration in that case was, whether equity would relieve against a forfeiture. There had been a judgment of forfeiture at law. The court, in reply to the contention that acceptance of certain things of minor importance under the contract was a waiver of the forfeiture, said :
“Waiver of the forfeiture would have been a good defence at law, and the judgment is to be taken as conclusive evidence that there had been none at the time it was rendered.”
III. In the earlier part of the trial, against the defendant’s exception, the plaintiff was allowed to put in evidence to show that the defendant did nothing towards the intestate’s support when he was absent from the premises in contro
IV. The defendant also excepted to the refusal of the court to receive in -evidence the certified copy of record made by two justices of the peace for the purpose of impeaching Hiram Winch, a witness produced by the plaintiff. Whether two justices of the peace who, on proper complaint, charging the person in whose possession the property was claimed to be with having stolen it, had issued a warrant to search for the property in the night time, and if the property was found to arrest and bring before them the person charged, have authority under the' law, upon trial, to
V. By his sixth request the defendant asked the court to charge that if the intestate conveyed to the defendant the property in contention, with the fraudulent and deceitful purpose of avoiding his debts, enumerated, the plaintiff could not recover. By the seventh request he asked the court to charge that if the" intestate fraudulently concealed
'Judgment reversed and cause remanded.