Barker v. Cobb

Eastman, J. The deed of Cox to Betsey Bounds, in 1823, conveyed an estate upon condition; for although the condition was not contained in the body of the deed, yet, being upon the same paper, and executed at the same time, the intent of the parties appears plain. There was but one .contract, and, in legal effect, but one instrument. By the condition of the conveyance, the grantee was to provide for and support Cox and his wife during their natural lives, otherwise the deed was to be null and void. In a deed of this kind, though an estate be conveyed, yet it passes to the grantee subject to the condition, and laches are chargeable upon the grantee for non-performance of the condition annexed to the estate, even though such grantee be an infant or feme covert. Co. Litt. 246, b; 4 Kent’s Com. 126. Betsey Bounds, then, took the demanded premises subject to the condition, and the fact that she was a feme covert did not change the force or requirements of the condition. The evidence was competent to show, and from it the jury have found, that the condition was not kept. It was of no consequence whether her husband assented to the entry of Cox or not. If the condition had not been kept, Cox had the right to enter against the will of the grantee or [348] that of her husband. And by his entry he became seized of the demanded premises ; for it is a general rule of law that he who enters for condition broken becomes seized of his first estate, and thereby avoids all intermediate charges and incumbrances. 4 Kent’s Com. 126 ; 1 Shep. Touch. 121, 155 ; Perkins, sec. 840. By the breach of the condition and the entry of Cox, the title became revested in him, and his deed to the demandant, Caroline Barker, for good consideration, conveyed the estate to her. After the breach and entry Betsey Rounds had ceased to be the owner of the premises, and her deed could convey nothing. And, even had the condition been kept, Betsey Rounds could not convey the premises so as to transfer the performance of the condition to another. The condition was personal upon her, and Cox might maintain his writ of entry against the defendant. Flanders v. Lamphear, 9 N. H. 201; Eastman v. Batchelder, 36 N. H. 141. The motion to strike the name of Jonathan Barker from the declaration cannot be granted upon the fact alone that his wife has procured a divorce against him since the commencement of the suit. A divorce does not, ipso facto, cut off the rights of the husband in the real estate of the wife. It requires the decree of the court granting the divorce to disincumber the estate from the husband’s rights. If further facts are made to appear to the Common Pleas, warranting the amendment, that court may allow it. With these views the order from this court will be, that there be Judgment on the verdict.