Andrews v. Senter

Shepley, C. J. The devise of this estate by Andrew Scott Marwick to his wife Elizabeth, was decided in the case of Marwick v. Andrews, 25 Maine, 525, to have been upon condition subsequent: and that her title was liable to be defeated by an omission to perform the duties required by the condition. Whether the devise be regarded as imposing upon the devisee a personal trust or not, the testimony proves, that there has not been a performance of the condition by the devisee or her grantee. Lydia Marwick, for whose use the condition was to be performed, was the heir-at-law of the testator, and she occupied the premises to the time of her decease. It is therefore insisted, that no formal entry was required of her to create a forfeiture of the estate. The law will presume, that a person, who cannot make a formal entry upon the estate of another for condition broken, because he is already in possession, intends to hold possession to enforce all his legal rights, unless there be some indication, that such was not his intention, by which the presumption of law may be rebutted. When the facts disclosed are inconsistent with a claim to hold for condition broken, the presumption‘will be rebutted, or the person entitled to make an entry will be considered as having waived a performance of the condition. Forfeitures are not favored by the law; and any acts of the party entitled [398] to cause a forfeiture, clearly inconsistent with a claim to be the owner of the estate by forfeiture, must be regarded as proof, that performance of the condition was not intended to be enforced for the purpose of creating a forfeiture. Lydia Marwick appears to have died in the month of March, 1844. Although she had not been supported in the manner required as a condition of the devise, she had continued to receive from those, who claimed to be the owners of the estate under the devise, assistance and a partial support, until nearly, if not quite to the close of life. When the demandant was notified in the month of November, 1841, by some of her relatives, that she was poor and destitute, he replied, that he had paid as much for her support, as the land was worth. It appears from the testimony of Charles Blake, that he, at the request of the demandant, furnished her with bread, meat, and wood, whenever she called for them, from December 13, 1841, to June 6, 1843; and yet she appears to have been in the alms-house from March 8, to May 1, 1843. She appears to have been supplied with such articles as she called for, from the provision and grocery store of James Stetson, and from a store kept by the demand-ant during the year 1842. She appears to have informed Doct. John Merrill thee or four weeks before her decease, that Mr. Blake supplied her by demandant’s request with what she wanted. This continued reception of supplies from the demandant, as owner of the estate, was wholly inconsistent with a claim on her own part to be the owner of it, and with a denial of the rights of the demandant as owner. The legal presumption, that she was holding the estate as forfeited is rebutted by the proof f and she must be regarded as having omitted to claim it as forfeited, or as having waived a more perfect performance of the condition. In the case of Frost v. Butler, 7 Greenl. 225, a reception of part of the produce of the farm was not regarded as a waiver, only because t.he person claiming a forfeiture would [399] foe entitled to receive it consistently tvith his claim to hold the estate for condition-broken. The formal entry for condition broken made by the tenant in the month of January, 1850, nearly six years after the decease of the person, for whose benefit the condition was inserted, can have no effect upon the rights of the parties. The tenant presents a conveyance made by a collector of taxes assessed during the year 1841, upon the premises. This title to the premises cannot be sustained. Admitting, that its validity must depend upon the regularity of the proceedings in making the sale, and not upon the legality of the assessment, it appears upon the proof presented, to be fatally defective. Although the collector appears to have advertised separately two lots owned by the demandant with the amount of the tax upon each, he appears to have sold them together for the amount of the taxes due upon both of them. This appears from his return made to the treasurer; and there is no other proof, that each lot was sold separately for the collection of the amount of taxes assessed upon it. The collector does not appear to have recorded and returned to the treasurer within thirty days after the sale “ his particular doings in the sale,” as required by the act of March 6, 1826, c. 337, § 8. His return, which was signed more than thirty days after the sale, contained no designation or description" of the land sold. If it had been made in season, the owner could not have ascertained from it, whether any or what land of his had been sold. Tenant defaulted.