23 Wis. 176 | Wis. | 1868
It is claimed by the plaintiff that this condition in the deed is valid, being what in the books is termed a conditional limitation ; that the grant being to a husband and wife, each separately takes a fee in the land subject to be defeated by the other surviving him or her; and further, in case of the wife, the estate to terminate whenever she should cease to live with her husband, not having good cause for divorce; and that, as it appears, from the allegations of the complaint, that the wife has ceased to live with the plaintiff, not having any cause for a divorce from him, the contingency has happened upon which, by the limitations in the deed, the entire estate vests absolutely in the plaintiff. It appears to us that this is a correct view of the effect of the deed. It is admitted, that, in a conveyance of land to husband and wife, they are both seized, during their joint lives, of the entirety; that neither of them can alien so as to bind the other; and that the survivor takes the whole estate. But in this deed there was another event, besides death, which was to determine the estate of the wife; and that was, if the wife-should cease to live with her husband, not having a good cause for a divorce. The interest granted to her was confined to that period, and this was its limitation, both being alive.
There is much subtle learning in the books in regard to the distinction between conditions and limitations in deeds; so much so, that it is sometimes difficult to determine whether the words used are words of condition, making the estate voidable, or words of limitation, making the estate to cease. In Prof. Greehleae’s edition of Cruise on Real Property, title 13, chapter 2, section 64, the author says: “ Lord Core mentions a distinction between a condition that defeats an estate, but requires a re-entry, and a limitation which -determines the estate ipso faeto, without entry. Of the first sort, it has been
“A condition is something inserted for the benefit of the grantor; giving him the power, on default of performance, to destroy the estate if he will, and revest the estate in himself or his heirs. As the law does not presume forfeiture, it requires some express act of the grantor, as evidence of his intent to reclaim the estate, viz., an entry.”
“A limitation is conclusive of the time of continuance, and of the extent of the estate granted, and beyond which it is declared at its creation not to be intended to continue. Conditions render the estate voidable, by entry. Limitations render it void, without entry. If, upon failure of that upon which the estate is made to depend, no matter how expressed in the deed, the, land is to go to a third person, this is a limitation over, and not a condition. Eor if a condition, an entry by the grantor would be necessary; and he might defeat the limitation by neglecting to enter. A limitation is imperative, and is determined by the rules of law. A condition not only depends on the option of the grantor, but is also controlled by equity, if the grantor attempts to make an inequitable use of it. The performance of a condition is excused by the act of God, or of the law, or of the party for whose benefit it was made. A limitation determines the estate absolutely, whatever be its nature.”
See also 11 American Jurist, page 42, for an instructive article on this branch of the law.
Chancellor Kent says: “ A conditional limitation is of a
Now, in the light of these principles, it seems to us clear that the clause in this deed must be regarded as a conditional limitation. The estate was granted to the wife on condition that she should continue to live with her husband, and was to expire and vest in her husband whenever she should cease to live with him, unless she had good cause for a divorce. The vesting of the entire estate in the husband does not depend upon the election of the grantor to enter; but, by force of the condition itself, the land goes to him on the happening of the contingency. Batty v. Hopkins, 6 R. I. 443.
It is said that these conditional limitations were not valid at common law in the old conveyances. “ There appears, however,” says Mr. Butlbe, in his note to Eearne on Eemainders, p. 382, “ some reason to suppose that, though conditional limitations were legally void, they were allowed in the modification of uses while uses remained in their fiduciary state at the common law.” And he adds that “ after the passing of the statute of the 27 of Henry Till, which converted uses from their fiduciary state at the common law into legal estates, it became incumbent on the courts to determine what effect that statute should have in respect to the executory limitations under consideration. When the case was first pressed on the courts, it should seem to have been necessary for them to consider whether the statute executed any modification of property made through the medium of uses which the courts of law
It is said that this condition annexed to the grant was merely nominal, evincing no intention of actual and substantial benefit to the party to whom, or in Whose favor it was to be performed, and should be wholly disregarded, and a failure to perform the same cannot operate as a forfeiture of the lands conveyed subject thereto. Ch. 56, § 46, E. S. 1849. The parties, however, saw fit to insert this condition in the deed, and it is presumably for the advantage of the husband that his wife should continue to live with him. It therefore cannot be disregarded, as suggested.
Eor these reasons we think the complaint stated a good cause of action, and that the demurrer was improperly sustained.
By the Court. — The judgment of the circuit court dismissing the complaint, is reversed, and the cause remanded for further proceedings.