Willard ex rel. Olcott v. Henry

2 N.H. 120 | Superior Court of New Hampshire | 1819

Woodbury, J.

The parents of John Henry being dead, the demand ants are at all events entitled to recover a moiety of the premises ; for the condition in relation to half of them, whatever may have been its validity, and however it may have ln.cn broken, was not to operate after their decease.

In respect to the other moiety, the condition was clearly broken, bn! no attempt was made to prove a re-entry or express claim to the premises for that cansp.

(t) Co. Lite si8' (212Mas*. Sne'Town-send. (3) 14 John, 124 — li ditto Rep. 75, Rob-gin! Wl§

The demandants, therefore, can recover that moiety, also, if such re-entry or claim was necessary to re-vcst the estate in the grantor.

Lord Coke observes,(1) “ regularly when any man will “ take advantage of a condition, if he may [can] enter, he “ must enter ; and when he cannot enter he must make a “ claim ; and the reason is, for that a freehold of inheritance “ shall not cease without entry or claim, and also the feoffer “ or grantor may waivé the condition at nis pleasure.” Vide also 2 Cok. 53, b.—Shep. 153.—2 Bl. Com. 155.—Plow. 133, Browning vs. Beston.

When a grantor, as in the present case, continues in possession after the sale, it is obvious, that a re-entry is impracticable ; and for that reason a claim to retain the possession for condition broken is equivalent.

If a grantor, thus in possession, forbear to make such claim, it is considered sufficient evidence, that the forfeiture is waived.

This claim may consist of acts and words, or of either ; but they must be of such a character as with distinctness to admonish the grantee, that thenceforward the possession will be retained for condition broken, and that the breach is not waived.

Such is the notice required to a mortgagor, where a mortgagee is in possession to take the profits and concludes to retain it to foreclose the mortgage for condition broken.(2) So a “«bsequeni. conveyance of the premises by the former grantor might be an act, sufficient to indicate a claim to the premises as forfeited, in analogy to the doctrine, that such •conveyance by an infant is equivalent to an entry to avoid a prior deed,(3)

gnt in this case, there were neither acts nor words, which indicated an intent to retain possession for condition broken, The complaints, that the condition had not been fulfilled, were mere statements of a breach and not of an intent to claim a forfeiture on account of the breach ; and all the other circumstances tend strongly to rebut such intent.

The, grantee was a son, whose neglect would not be treated with severity ; he was, also, for services rendered and money expended, to receive at all events a moiety of the land ; both the parents, after condition broken, continued to reside with him, and accept such articles as were furnished under the condition ; and the mother, after the death of her son, and till an assignment of dower, accepted the same articles of his grantee.

From these facts the deduction is inevitable, that the breach of the condition was waived, and judgment must, therefore, be entered

On the verdict.