Newport Hospital v. Carter

Dueeee, C. J. The defendant contends that the bond amounts to a perpetual license to the inhabitants of the town of Middletown to do the acts complained of in the declaration. Pie contends that it is in effect a covenant for such license, and that as such it is specifically enforcibl'e- in equity against the plaintiff as owner, under the covenantor, of the estate to which it relates. Admitting, without deciding, that the bond is *292 such a covenant, does it follow that the defendant can plead it in bar of the action ? The general rule is, that only parties to a contract or their successors in law or fact, or at the most those who are interested in the subject matter, can maintain a suit to enforce it. Waterman on Specific Performance, § 50; Beardsley Scythe Co. v. Foster, 36 N. Y. 561; Moss v. Bainbridge, 18 Beav. 478, 482, also in 6 De G., M. & G. 292; Peele, ex parte, 6 Ves. Jun. 602; Colyear v. The Countess of Mulgrave, 2 Keen, 81; Denbo v. Tipton, 2 Ind. 20. The defendant is neither party nor privy to the contract nor assignee. He has no interest in the subject-matter ; for a mere license does not amount to an interest, even in equity, until the licensee has incurred expense or labor in consequence of it. He does not come within the recognized exceptions to the given rule. The exceptions extend only to marriage settlements, or to contracts for the benefit of some person nearly related to the promisee, or of some person who, in consequence of the contract, has altered his status or condition. Fry on Specific Performance, §§ 102, 105; Waterman on Specific Performance, § 51. The defendant could only bring himself within the last, if either, exception, and he does not do it by his plea. He argues that the obligee of the bond became a trustee for the inhabitants, and that as one of the inhabitants he is entitled to an enforcement of the trust. We do not think the bond can be held to have created a trust in favor of the inhabitants. The obligee, by taking the bond in his name, may have become a trustee for the town, supposing the town authorized such taking, because the consideration proceeded from the town. No consideration proceeded from the inhabitants. The bond is merely an executory contract, and it is well settled that an executory contract will not be enforced as a trust in equity at the suit of a mere volunteer. If upon suit the penalty were recovered, the money would go to the town, not to the inhabitants. The town, for anything we can see, could in equity discharge the bond for good consideration. It could not do so if the inhabitants were eestuis qui trustent, and entitled as such to the benefits of the condition. It follows that the defendant has no right under the bond which would, entitle him to equitable relief independently of the statute, and we do not think the statute does more than enable a defendant to avail himself at law of such defence as without it he could have availed himself of by suit in equity. *293 The bond, construed as the defendant seeks to have it construed, resembles a condition in a grant. The estate might have been granted on condition that the grantee, his heirs or assigns, should allow to the inhabitants the privileges mentioned in the bond, in which case, if the grantee had disallowed those privileges, the inhabitants could not have enforced the condition, but only the grantor, or, if the grantor were a natural person, his heirs. In Parsons v. Miller, 15 Wend. 561, 564, the defendant, who was sued in trespass for carrying away seaweed from the plaintiff’s beach, justified under such a condition; but the court held, as we understand the decision, that even if the condition extended to the taking and carting away of seaweed, it was no defence, because the defendant was a stranger to the deed. See, also, Hornbeck v. Westbrook, 9 Johns. Rep. 73. The defendant cites Driscoll v. Marshall, 15 Gray, 62. There the defendant bought standing wood, with the right to enter, cut, and remove it. The owner subsequently sold and conveyed the land where the wood stood to purchasers who sold and conveyed it to the plaintiff. The plaintiff had notice of the sale of the wood to the defendant, and assented to the reservation of it for him, though the assent was not put in the deed. The court held that the assent was equivalent to a license under which the defendant could justify. There was no evidence of any revocation of the license, and it was not claimed that the license was irrevocable. The defence was legal, not equitable. The case does not much resemble the case at bar. The defendant here sets up, not simply a license given by the plaintiff, but a so-called license given by Jonathan Easton, under his hand and seal, a hundred and forty years ago, which, the defendant contends, operates in equity like a covenant running with the land, binding it forever. To sustain the plea, therefore, giving it the effect which he claims for it, is not merely to give effect to a personal license, but to saddle the estate with a perpetual charge or servitude. If this can be done, we think it is for the obligee of the bond to do it, or possibly for the town as the obligee in equity, and not for the defendant. The bond cannot operate as a grant, for an unincorporated community, “ a mere flux body,” united only by local habitation, cannot take in succession, either collectively or individually, and *294 therefore a grant to the inhabitants of Middletown, giving it the most favorable construction, would be simply a grant to the inhabitants living at the time of the grant. Thomas v. The Inhabitants of Marshfield, 10 Pick. 364, 368; Rogers v. Brenton, 10 Q. B. 26, 60; Jackson v. Cory, 8 Johns. Rep. 301; Hornbeck v. Sleght, 12 Johns. Rep. 199. Demurrer sustained. William P. Sheffield Francis B. Peckham, for plaintiff. Arnold Green f Samuel R. Honey, for defendant.