39 Barb. 79 | N.Y. Sup. Ct. | 1862
By the Court,
I think that, the defendant Hallenbeck was a competent witness to prove the declarations made by the deceased. In McCray v. McCray, (12 Abb. 1-4,) it was decided that the natural and obvious meaning of the words “representatives of a deceased person,” as they
The declarations of Ezra Spaulding were competent evidence in the case. He was the grantor of the premises in question and a party to the contract embraced in the conveyance. He was an original party to the record and identified in interest with the plaintiffs. (1 Greenl. Ev. § 171.) The admission made by him was against his own interest and tended to establish a sufficient consideration for the deed. The evidence was a part of the res gestee. (1 Greenl. Ev. § 109.) The plaintiffs attempted to prove that the defendant Hallenbeck had failed to fulfill the conditions of the deed. The defendants, to contradict this evidence, introduced the declarations of Spaulding, showing that he was entirely satisfied with his treatment by Hallenbeck. This was an important and a material issue in the case, and the declarations of the party were clearly admissible.
The remaining exceptions relate to the charge of the judge in submitting the case to the jury. The points raised as to the consideration and the validity of the deed from Spaulding and wife to Hallenbeck were fully considered and decided by the general term upon the former appeal, and must therefore be regarded as res adjudicata. (30 Barb. 292.) I shall therefore pass to a consideration of the other objections to the charge. It is insisted that the judge erred in charging the jury that Ezra Spaulding waived the conditions of his deed if he was satisfied.with his treatment and so expressed himself.; that the waiver, if there was any, could only have been up to the time he expressed himself, which was long before he left Hallenbeck; and that the omission to express dissatisfaction did not waive his right to insist upon a strict performance of the contract. I think the charge of the judge was sufficiently restricted, so as to confine it to the time when
It is claimed that the judge erred in charging the jury that a substantial compliance with the contract was sufficient to
There is a class of English cases which would appear to hold that in all cases of forfeiture for a breach of any covenant other than a covenant to pay rent, no relief ought to be granted in equity unless upon the ground of accident, mistake, fraud or surprise, although the breach is capable of a just compensation. (Hill v. Barclay, 16 Ves. 402. 18 id. 56. Reynolds v. Pitt, 19 id. 134.)
It will be observed that the cases cited were actions of ejectment, founded on.a breach of a collateral covenant in the lease, where it would be at least difficult to obtain an adequate compensation in damages, and where the equities appeared to be very much against the defendant. In 16 Vesey, 402, Lord Chancellor Eldon says: “ There is no ground for relieving a tenant whose conduct with reference to his covenant has been gross and ruinous, that the landlord may be placed in the same situation by afterwards putting the premises in sufficient repair.' How can it be ascertained that the subsequent repairs do put the landlord in the same state ?” It was partially on these grounds that equitable relief was refused in the case last cited. But the doctrine sought to be established even in such cases is received with some hesitation in this country. (Story’s Eq. Jur. § 1323. Harris v. Troup, 8 Paige, 425.) A distinction is attempted to be made, and where the condition of forfeiture is merely a security for the non-payment of rent, then it' is to be treated merely as security in the nature of a penalty, and is relievable; but where the forfeiture arose from a breach of any collateral covenant, then courts of equity would not relieve. (Story’s Eq. Jur.
The principle laid down by Lord Eldon, in 16 Vesey, and sustained in the cases referred to, could not be regarded as applicable to the case under advisement, for the condition of the deed in the case at bar was doubtless intended as security in the nature of a penalty, and cannot in any way be considered in the light of a collateral covenant to repair under a lease, where no adequate compensation in damages could be obtained in an action for-a breach of it.
The provision, in the deed from Spaulding and wife, was a condition subsequent; to be performed after its execution and delivery. Eo precise technical words are necessary to make a condition precedent or subsequent. The construction must depend upon the intention of the parties. (3 Cruise’s Dig. 468, tit. 32, ch. 24, § 7. Id. tit. 13, ch. 1, § 10. Blacksmith v. Fellows, 3 Seld. 401.) It may depend upon the order or time in which the conditions are to be performed. (Parmelee and others v. The Oswego and Syracuse R. R. Co., 2 Seld. 74.) If the condition does not necessarily precede the vesting of the estate, but may accompany and follow it, if the act may as well be done after as before the vesting of the estate, the condition is subsequent. (Martin v. Ballou, 13 Barb. 119, 133.) So if from the nature of the act to be performed and the time required for its performance, it is ev
The deed in question is upon the express condition that the grantee shall beep, maintain and support the grantors, and if he fail to do so, according to the manner and condition expressed in the conveyance, it is declared to be void and the premises revert back to the grantors. This condition involves a forfeiture of the premises upon a failure of the grantee to perform, and it is quite apparent that it was intended as a security in the nature of a penalty for its performance. It was a condition subsequent, and upon a failure to fulfill its requirements the grantors had a right to re-enter upon the premises. It presents a case somewhat similar to one where rent is payable, and a right of re-entry is reserved upon its non-payment. If the grantee refused to comply with this
Hogeboom, Peckham and Miller, Justices.]
A new trial should he denied, with costs.