Dugan v. Thomas

Peters, C. J. This is a real action between a son and father, another' defendant being coupled with the father, where the question involves the right of possessing a homestead which the father conveyed by a conditional deed to the son to secure a life support. The son claims that he has by his deed a right to the possession, and the father claims that the right which the son had has been forfeited for condition broken. An exception is taken, that the judge said to the jury that the burden to show forfeiture was on the plaintiff (the son), when he meant to say defendant instead of plaintiff. It is too late for the plaintiff to urge an objection. He should have called for a correction at the moment or before the jury retired. It must have been understood to be an inadvertence. The judge was describing the duties imposed on the plaintiff, and accidentally said, "The burden is upon the plaintiff (meaning defendant), to show that he has failed to do it.” No one could suppose the plaintiff’ was required to show his own default. Besides, the judge afterwards said that the burden was on the defendant, and such must have been the drift of the whole charge. [223] An objection is urged upon the exceptions and motion, that a sufficient re-entry was not effected by the defendant, because a witness called to observe the act did not know the purpose of it. But his presence was not at all necessary. The plaintiff moved away from the premises, virtually abandoning them, and the defendants’ agent took re-possession for condition broken. The grantor took possession of the farm and held it until his conveyance to the other defendant. The evidence upon that point is plenary. The deed from the father to .son contains a clause providing that, if a controversy arise, "the parties or either of them may submit” the matter to arbitration, the "arbiter to be mutually agreed upon.” The judge instructed the jury that this would not bar the defendant from sitting up forfeiture unless the plaintiff asked for a reference and was refused. The plaintiff cannot justly complain of a ruling more favorable to himself than he was entitled to. If the defendant could not justify a re-entry until an arbiter had so awarded, he might be forever deprived of his right, because an arbiter might never be "mutually agreed upon.” Such a clause of arbitration cannot bind parties. The right of free access to courts is inalienable. Whar. Con. § 416. Parties may by agreement impose conditions precedent with respect to preliminary and collateral matters, such as do not go to the root of the action. But men cannot be compelled, even by their own agreements, to mutually agree upon arbiters whose duties would, as in this case, go to the root of the principal claim or cause of action, and oust courts of ther jurisdiction. Robinson v. Insurance Co. 17 Maine, 131; Hill v. More, 40 Maine, 515; Pearl v. Harris, 121 Mass. 390. The motion has no meritorious grounds to stand upon. Exceptions and motion overruled. Walton, Danforth, Emery, Foster and Haskell, JJ., concurred.