99 Mass. 23 | Mass. | 1868
Both parties claim title under B. F. Lindsay. The deed from Holland to Lindsay, of a larger tract including the locus, contained a condition that the grantee should convey the parcel now in controversy to Horace E. Lindsay, or his assigns, in fee simple, “ whenever tendered a like conveyance of the lot to be granted as an equivalent therefor, as mentioned in
A deed of land upon condition subsequent conveys the fee, with all its qualities of transmission. The condition has no effect to limit the title, until it becomes operative to defeat it. Subject to this contingency, the estate will pass by deed or mortgage in the same manner and to the same extent as if no such incident were attached to it. Regarding the provision in Holland’s deed to B. F. Lindsay as a condition merely, the mortgage from B. F. Lindsay would carry the title to the whole estate, subject to the right of defeasance as to the locus. That right is in Holland alone, and therefore cannot be set up by others to defeat his title under the mortgage, even if there had been a breach of the condition, which the case does not find.
The argument of the defendant seeks to give to this provision an effect broader than that which belongs to a condition. It is contended that by it B. F. Lindsay was bound to convey to Horace E. Lindsay, and was entitled to do so and to receive the equivalent; that he was not released from this obligation, nor deprived of this right, by his mortgage to Holland, made subject to that provision ; that he alone was interested in the equivalent to be received, and therefore might waive it, and convey, as
It is unnecessary to determine whether B. F. Lindsay might have conveyed in accordance with the terms of the condition, and thus defeated his mortgage to Holland, pro tanto; or whether the mortgage deprived him of the right and power so to convey without the concurrence of the mortgagee; because, if he had the right to convey in fee simple, after his mortgage to Holland, it could be exercised only in strict conformity with the terms of the condition relating thereto. H. E. Lindsay acquired no rights by virtue of the condition in Holland’s deed to B. F. Lindsay. His rights depended solely upon his personal contract with Holland. The purpose of the condition was to secure the performance of that contract, and protect Holland against his personal liability upon it. For that purpose, and to that extent only, if at all, would the power to convey in fee simple remain in B. F. Lindsay after his mortgage back to Holland. His deed to H. E. Lindsay, whether intended to convey an absolute fee or only the equity, appears to have been made without any reference to the contract for an exchange, and upon other considerations. It does not profess to be given in performance of the condition, nor appear to have been accepted in discharge of the contract between H. E. Lindsay and Holland. It can operate therefore only to convey the equity subject to the mortgage title of Holland which has passed to the plaintiff.
Accordingly the judgment of the superior court in favor of the plaintiff must be affirmed.