Warner v. Bennett, 31 Conn. 468

Warner v. Bennett

31 Conn. 468 | Conn. | 1863

Sanford, J.

In our opinion the conveyance from Tomlin-son to Bennett and others was of a fee simple estate upon condition expressed in the deed. The instrument is a common deed of bargain and sale to the grantees, their heirs and assigns forever, for certain uses specified in the deed, which contains the following clause : “ The conditions of the within deed are such that whenever the within named premises shall be converted to any other use than those named within, and the within grantees shall knowingly persist in the use thereof for any purpose whatever except such as are described in said within deed, the said grantees forfeit the right herein conveyed to the within described premises, upon the grantor paying to the said Hatch and Bennett and other stockholders the appraised value of such buildings as may be thereon standing.”

Blackstone says, estates upon condition “ are such whose existence depends upon the happening or not happening of some uncertain event whereby the estate may be originally created or enlarged, or finally defeated.” 2 Bla. Com., 151. Littleton says, “ it is called an estate upon condition because that the estate of the feofee is defeasible if the condition be not performed.” Sec. 325. “ A condition is created by inserting the very word ; condition ’ or ‘ on condition ’ in the agreement.” 1 Bouvier’s Inst., 285. Conditions are precedent or subsequent. “ Precedent are such as must happen or be performed before the estate can vest or be enlarged. Subsequent are such by the failure or nonperformance of which an estate already vested may be defeated.” 2 Bla. Com., 154. In the case of a condition “ the estate or thing is given absolutely without limitation, but the title is subject to be divested by the happening or not happening of an uncertain event. Where on the contrary the thing or estate is granted or given until an event shall have arrived, and not generally with a liability to be defeated by the happening of the event, the estate is said to "be given or granted subject to a limitation.” 2 Bouvier’s Inst., 275 ; 2 Bla. Com., 155.

In the case before us the estate vested in the grantees upon the delivery of the deed, to have and to hold to them, their *476heirs and assigns, not until they should convert the property to other uses than those specified in the deed, nor so long as they should continue to use it for the purposes specified, but forever; with a proviso or condition expressed in the deed, that if they should convert the property to other uses they should forfeit their estate. The words employed are most appropriate and apt to make an express condition in deed. They are “ the conditions of the within deed are such,” &c. And in Mary Portington’s case, 10 Coke, 41 a, it is said that “ express words of condition shall not be taken for a limita- ' tion.” It has indeed been held that they may be so taken where the estate is limited over to a third person upon the breach or non-performance of the condition, (Lady Anne Fry's case, 1 Inst., 202,) but there is no such limitation over in the case before us. So when it is said that “ whenever the within named premises shall be converted to any other use,” &c., “ the grantees forfeit the right herein conveyed,” it is clearly indicated that the estate thus forfeited by the misappropriation is to be eut otf before the time originally contemplated for its termination by the parties.

But it is said that by the terms of the instrument the forfeiture depends not merely upon the misappropriation of the property by the grantees, but also upon the grantor’s payment of the appraised value of the building. Suppose it is so, how can that affect the question whether this is a condition in deed or a limitation ? No matter how many events the forfeiture depends upon, nor how many individuals must act in producing them, when all those events concur and co-exist the forfeiture is effected as completely as if it depended upon the occurrence of a single event, and the action or omission of a single individual. But the payment for the building was not an event upon which the forfeiture depended. It was merely a duty imposed upon the grantor by the contract in addition to that which the law imposed, to enable him to take advantage of the breach of condition and enforce the forfeiture. His legal obligation to enter for breach of the condition was in no wise affected by it. The estate conveyed by the deed was not an easement, or any other right or interest in the property *477than a fee simple. The fact that the instrument was igned by both of the parties to it is of no importance. They vere neither more nor less bound by the stipulations and conditions contained therein by reason of such signature. The instrument contains no contract on the part of the grantor to pay for the building. The provision Upon that subject operates as a qualification of the grantor’s right to enforce the forfeiture and regain his property, but operates in no other way. But for that provision the estate granted could have been put an end to, and revpsted in the grantor, by an entry only; under that provision an entry could be made available oiily by payment for the building also.

' We think it clear that the estate of the grantees Was an estate on condition in deed, ahd that it was an estate upon condition subsequent; and hence, notwithstanding a breach of the condition by reason of which the estate might have been defeated, it must continue to exist in the grantees, with all its original qualities and incidents, until the grantor or his heirs by an entry (or its equivalent, a continual claim,) have manifested in the way required by law, their determination to take advantage Of the breach of condition, to avail themselves of their legal rights, and to reclaim the estate thus forfeited.

"The law upon this point is thus laid down by Professor Washburn, in the first volume of his treatise on real property, page 450, with accuracy and precision. “ A condition, however, defeats the estate to which it is annexed only at the election of him who has a right to enforce it. Notwithstanding its breach, the estate, if a freehold, can only be defeated by an entry made, and until that is done it loses none of its original qualities or incidents.” See also, id., 452 ; 2 Bla. Com., 155 ; 2 Cruise Dig., 42.

But there is in this bill no allegation that an entry for condition broken was ever made. No right to maintain this suit is disclosed, no title to the property is set up, nothing is claimed but a right of entry for condition broken. And for this reason, if for no other, the bill is insufficient, and the decree must be pronounced erroneous.

The allegation in relation to an abandonment of the prop*478erty is immaterial. It is not averred that the grantees ha abandoned the property, but only that they had abandoned i “ so far as the uses named in said deed are concerned; ” tha is, that they had ceased to use the property for the purposes for which the grant was made, not that they had ceased to use it altogether. What effect an absolute and entire abandonment of the property by the grantees would have had upon the legal or equitable rights of this petitioner, we are not now called upon to decide.

Secondly. A right of entry for condition broken is not assignable at common law, and we have no statute which makes it so. 2 Cruise Dig., 4; 4 id., 113 ; 1 Spence Eq., 153 ; 1 Swift Dig., 93. The grantor or his heirs only can enter for breach of such condition. 1 Washb. on Real Prop., 451; 2 Cruise Dig., 44. The petitioner therefore could have obtained no right or title to make an entry for breach of the condition, and without such entry the estate of the grantees could not be terminated, and no suit at law or in equity could be maintained against the occupant of the property.

Thirdly. If there was a breach of the condition and a forfeiture of the grantees’ estate in consequence, and if a right of entry could be and was in fact assigned to the petitioner, still the petitioner could not obtain the relief for which he seeks in a court of equity, because that court never lends its aid to enforce a forfeiture. 4 Kent Com., 130 ; 2 Story Eq. Jur., § 1319; Livingston v. Tompkins, 4 Johns. Ch., 415.

Lastly. If the right, title or interest, whatever it was, of the grantor or his heirs was assignable, and was assigned to and vested in the petitioner, as he claims, he had no occasion to come into a court of equity for relief. We do not see why he might not have entered for breach of the conditions, requested the respondent to unite with him in procuring an appraisal of the building, if he refused procured such appraisal without the respondent’s co-operation, tendered the amount of the appi'aisal, and brought his action of ejectment. The petitioner’s legal right, if he had it, to put an end to the grantees’ estate and obtain possession of the property, we think could not have been defeated by the respondent’s refusal to co-operate in the *479appraisal or accept the tender. See 1 Swift Dig., 295; Powell on Cont., 417 ; Whitney v. Brooklyn, 2 Conn., 406. We know of no power in a court of equity to compel the respondent to join iiio puiitioner in procuring an appraisal, nor to make one, in such a case as this ; and we see no occasion for the exorcise of such a power if it exists. We think the petitioner iris an adequate remedy for the enforcement and protection of all his rights at law.

There is manifest error in this record.

Í ' • ' the other judges concurred ; except Dut■xon, o ' T ■•ing tried the case in the court below did not sit.