Frost v. Butler

The opinion of the Court was read at the ensuing September term, as drawn up by Weston J. The original seisin of the demandant and an ouster by the the tenant being admitted, the demandant is entitled to judgment ; unless the tenant has made out a sufficient title on his part. Re relies upon the deed made by the demandant to William Frost, and by William Frost to himself. The former undoubtedly passed the land ;• but upon certain conditions, upon the non-performance of which the deed was to be void. From the report of the judge, it very distinctly appears, that the grantor demanded of the grantee payment of die first note mentioned in the condition of the deed, and that the grantor did not make payment according to the condition. In regard to this fact, which is reported to have been proved, there does not appear to be any opposing or conflicting testimony. It further appears that the jury found for the demandant upon other breaches, and that this fact was not settled or established by their verdict. The question submitted to the court is, whether, upon the [229] facts, the demandant is entitled to retain his verdict. The failure of the grantee to pay the first note mentioned in the condition, is one of the facts which must necessarily be considered by the court. It further appears that the grantee did not manage, till, cultivate, and improve the farm in an husbandlike manner ; and did not provide suitable fire wood for the grantor ; according to the conditions of his deed. Did the demandant, prior to the bringing of this action, enter for condition broken ? The case finds that from the date of the deed to the commencement of the action, the demandant resided upon the premises. By the general principles of law, an estate of freehold, which has once vested, cannot cease or be defeated by the nonperformance of conditions, unless upon entry for condition broken. But to this rule there are some exceptions. One is, where the party entitled to the benefit of the condition is in actual possession. Co. Litt. 218, a. But there being in this case a concurrent possession, it was doubtless incumbent upon the demandant to notify the grantee that he claimed to hold for condition broken ; and this it appears he did at two successive periods, the last time in April, 1829, requiring the grantee to quit the place. These notices were both preceded by a demand of payment of the first note; and it is insisted that the entry or claim to hold was for this breach only, which the jury have not found. The character of the entry must appear$ that is, whether it be for condition broken, or for any other purpose; but if a party enter for condition broken, he may doubtless verify his right so to do by proof of any prior breach, whether stated by him or not at the time of his entry. Besides, as has been before stated, we must regard this breach as a fact proved in the case. It is however urged by the counsel for the tenant that the demand-ant has waived his entry for condition broken ; and that he has by his acts affirmed the continuance of the estate. Had he received the money which the grantee was to pay, there would certainly be ground for this position; for he could have no claim to the money, if he held the estate. This is not pretended ; but it does appear that prior to the action, the demandant declined to receive payment [230] of the second note, which was tendered to him. The ground of waiver relied upon is, that he continued to receive his proportion of the produce ; but this is what he was entitled to'as owner of the farm, and is entirely consistent with his right to hold for condition broken. , But if the demandant has established his legal title, the counsel for the tenant moves the court that a conditional judgment only be rendered in his favor. And he founds this motion upon the second section of the act, for giving remedies in equity, St at. 1821, ch. 50. First, upon the ground that this is a cause brought to recover a'forfeiture, annexed to articles of agreement in a specialty. Or secondly, for the forfeiture of real estate upon condition. As to the first ground, it is not supported in point of fact. This is not an action to recover a forfeiture annexed to any articles of agreement, but a writ of entry to recover seisin and possession of real estate; so that it is not brought within the language of that branch of the statute. Nor does it appear to us to present a case within its intention or meaning. In the connexion in which it stands, it is manifestly limited to personal actions; for where the forfeiture claimed is of real estate, it is provided for in a distinct clause. Our next inquiry is, whether that clause reaches this case. It is in these words: or for forfeiture of real estate upon condition, by deed of mortgage, or bargain and sale with defeasance.” It has been'ingeniously contended by the counsel for the tenant, that if the word “ or” is supplied after the word condition, or a comma after estate, the provisions of the section, upon a just construction, would extend to all estates, which may be forfeited or defeated by the nonperformance of conditions. • This position may be true ; but we have no authority for the emendation. Upon comparing this section with the corresponding one in the laws of Massachusetts, from which it was derived, a slight alteration in the punctuation may be perceived, but none which varies the sense, or requires a different construction. All estates upon -condition do not fall within the range of the remedies in equity given by the statute; but such only as arise from deeds of mortgage, or of bargain and sale with defeasance. These are conveyances by way of pledge, to secure collaterally the pay [231] ment of money, or the performance of some other duty or obligation on the part of the grantor. He from whom the estate moves is to be restored to it, upon the performance of conditions. In the case before us the grantee pledged no estate of his, but the grantor conveyed his estate to the grantee to be held by him, if he fulfdled certain conditions; if he did not, the deed was to be void and the estate to be resumed by the grantor. The deed under consideration therefore not being a deed of mortgage, or of bargain and sale with defeasance, the motion of the tenant that a conditional judgment only be rendered, must be overruled. ' The counsel for the tenant lastly moves, if the court should be against him upon the other points taken, that the court 'would stay proceedings, that the tenant may bring a bill in equity to be relieved from the conditions of the deed, upon the payment of a reasonable compensation. If the tenant has a fair claim for such relief, and the court in the exercise of its equity jurisdiction, could and would grant it, the motion ought to prevail. The authorities cited for the tenant do sustain the position, that a court of chancery has often interposed to relieve against forfeitures and penalties arising from the breach of conditions, wherever a due compensation and indemnity can be made. And this relief has latterly been extended even to conditions precedent There is much reason to contend that the case before us is one, where an adequate compensation in damages might be allowed. But the equity powers of this court, although much extended, are still not general, but limited. Tn addition to those given in the second section of the statute before commented upon, this court has chancery jurisdiction in all cases of contract in writing, where a party claims the specific performance of the same, and in all cases of fraud, trust, accident or mistake, where there is not a plain, adequate, and sufficient remedy at common law. But. the tenant does not claim the specific performance of a contract in writing, or the execution of a trust; nor does he aver that he has been circumvented by fraud, or that he has suffered, or is in danger of suffering, from accident or mistake. These arc our present impressions and they are sufficient to induce us to overrule the motion. It is to bo understood however [232] that we do not give a definitive opinion upon this point, but reserve it for future consideration if the counsel for the tenant should think proper to bring a bill in equity. Judgment on the verdict.