Randall v. Wentworth

Wiswell, C. J. This is a real action. The demanded premises at one time belonged to the demandant. On October 17, 1887, he conveyed the same to the George’s River Trotting Park Association, the name of which Association was subsequently changed to the West Waldo Agricultural Society. The defendant’s plea is the general issue, with a. brief statement in which he justifies his possession as an officer and agent of the West Waldo Agricultural Society. That corporation has title to the demanded premises unless its estate has been forfeited by its failure to comply with the following condition contained in the deed from the demandant to it, under its previous name: “ The above named Association to erect and maintain a fence around the remainder of the lot, of which the above mentioned ten acres was a part, and lying between said Association’s track and the county road, said Association or their successors failing to erect and maintain a suitable fence this instrument becomes null and void.” This clause constituted a condition subsequent. Upon the failure of the grantee or its successors to comply with the condition, the title of the grantee was forfeited and the demandant had the right [179] to make an entry upon the premises for the purpose of revesting himself with the estate. There is no serious question but that the Agricultural Society has failed to perform this condition. It originally built a fence as required thereby, but has not maintained it. The Association held its last fair upon its grounds, including the demanded premises, in 1897 and has not occupied the grounds since. From 1898 until the time that the plaintiff took possession in January, 1903, this fence has not been maintained as required by the condition. Although the necessity for the maintenance of the fence provided for in the condition' may not have been so great since as during the period of time that fairs were held upon the Association’s grounds, necessity for this or any other reason was not made a limit upon the duty of the Association to maintain the fence, and it does not affect the respective rights of the parties. There is no evidence from which any waiver upon the part of the demandant could be implied. Upon the contrary, the evidence shows that the demandant insisted upon a compliance with the condition, and so notified an officer of the Association in writing some three months before making a re-entry upon the premises. The demandant therefore had the right to make an entry upon the premises for the purpose of revesting himself with the title as a prerequisite to the maintenance of an action for possession. Before the commencement of this action the plaintiff made an entry upon the premises for this purpose, sufficient in act and intent for the purpose. He is Consequently entitled to a judgment in his favor. Judgment for Demandant.