Whitton v. Whitton

Bell, J. One tenant in common cannot, as against his co-Tenants, convey a part of the common property in severalty by metes and bounds, or even an undivided share of such part. Jeffers v. Radcliffe, 10 N. H. 246; Great Falls Co. v. Worcester, 15 N. H. 449. And a levy upon the co-tenant’s interest in a part of the land held in common would be equally void against the other co-tenants. Peabody v. Minot, 24 Pick. 332; Blossom v. Brightman, 21 Pick. 284; Smith v. Benson, 9 Vt. 140; Starr v. Leavitt, and Hinman v. Leavenworth, 2 Conn. 143, and note; Thompson v. Barber, 12 N. H. 563. The reason is obvious. His title is to an undivided share of the whole, and he is not authorized to carve out his own part, nor to convey in such a manner as to compel his co-tenants to take their shares in several distinct parcels, such as he may please; 15 N. H. 449; and his grantee can have no greater rights in this respect than himself. Upon the same principle the tenant in common cannot, by his will, devise his interest in specific parts of the common property, so as to prejudice his — 134 — co-tenants. So far as it may impair their rights, a devise as well as a deed must be inoperative and voidable. It does not follow, however, from this principle, that the grantee or devisee may not be properly a party to a bill or petition for partition. Devisees generally, and grantees sometimes, may claim under the same title, or a title of the same date; and as in such case neither has priority, it is impossible to say which should not be a party, if either should be rejected. In this case, Joseph J. Whitton and Henry A. Whitton are devisees in the same will; each is a devisee of a specific part of the common property ; Joseph of three acres, and Henry of the residue. If either should not be a party, then neither should be, and as they together have the whole, no partition could be had against any one.- But though the deed or devise in such case is inoperative and void, so far as it impairs the right of the co-tenant, yet, as against him, and others, for all other purposes, such grant or devise is valid, and the grantee or devisee is to be regarded as owner. He has an interest in the question whether the property shall be divided, and if so, in what manner, precisely so much greater than an ordinary tenant in common, as he is liable to have his entire interest assigned to another in the partition, and his whole estate defeated, without redress or compensation. It seems, therefore, clear that Joseph J. Whitton was properly made a party defendant to the bill. It is by no means clear that Thomas L. Whitton is not properly made a defendant. It has been held elsewhere that a mortgagee is not a necessary party to a bill for partition. 1 Ch. Eq. Dig., Est. "VTL, 3 ; 1 Oh. Eq. Dig., PI. V., 16; Wotton v. Copeland, 7 Johns. Ch. 146 ; and in New-Tork that judgment creditors are not necessary or proper parties in a partition; Sebring v. Mersereau, 1 Hopk. 510; and the same doctrine has been extended there to mortgages and other incumbrances, upon an undivided interest. S. C. 9 Cow. 344; Harwood v. Kirby, 1 Paige — 135 — 470. Here the mortgagee has a direct interest, since the partition may seriously affect or impair his security. If his mortgage were of the three acres of Joseph J. alone, it will he seen that the whole of that parcel might he assigned as part of the complainant’s share, and thus the mortgagee’s security might be wholly extinguished. "We think the rule cannot be well extended farther than that mortgagees are not generally necessary parties to a partition, but that they may be joined where their interests may be impaired. 1 Dan. Ch. Pr. 327, and Swan v. Swan, 8 Price 518, there cited. It may well be doubted if a mortgagee would be bound by a partition in equity, where he is not made a party, and by the partition his security was destroyed or impaired, upon the ordinary principles on which mortgagees are required to be made parties to bills of foi’eclosure. 1 Dan. Ch. Pr. 325. The provisions of our statute relative to petitions for partition seem entirely decisive of the propriety of making Thomas L. a party in this case. “ Application may be made, &e., by petition in writing, particularly describing the estate of which partition is desired, the names of the owners, or persons interested, if known.” Not merely the names of the owners in common, but all persons interested are to be set forth. Morrill v. Foster, 25 N. H. (5 Fost.) 336. What the statute requires in the statutory proceeding can hardly be deemed unfit in a petition in equity. It is said the condition of the plaintiff’s deed to Henry A. is not forfeited. The allegations of the bill are that the plaintiff’ conveyed his share of the land to Henry, subject to a condition to indemnify and save him harmless for the support of his father, agreeably to a bond referred to ; that Henry has failed to fulfil this condition; has not indemnified and saved him harmless, but the plaintiff has had to pay, and is holden to pay six hundred dollars for his support; and Henry, though requested, has not paid that sum, but refuses. At first look this seems a good — 136 — condition, and a breach well alleged. The objection is, that it is not shown that the plaintiff supported his father, agreeably to the condition of the bond, and that the support furnished covered the whole time. That is immaterial. It is not alleged that there was any breach as to the time omitted. If Henry performed the condition for nine months, he was equally bound to perform it after that, and a forfeiture followed the neglect of duty for any part of the time. If the complainant was bound to support his father, and caused it to be done to his satisfaction, Henry cannot complain. It is objected that the plaintiff was bound to give notice of the amount he paid, or was liable to pay, and it is not alleged that he did so; and consequently no breach of the condition is shown. Conditions -which inure to defeat an estate are construed strictly. 8 Coke 179; Co. Litt. 205, 218, 219. Forfeitures are not favored in equity. The party who claims a title derived from the non-performance of a condition subsequent, is bound to show his title complete and perfect. No presumptions are ordinarily to be made in his favor. Livingston v. Tompkins, 4 Johns. Ch. 415; 4 Kent’s Com. 130; 2 Cru. Dig. 35, sec. 29. If he has defeated or prevented the performance, by any act or omission of his own, he must fail. He must, therefore, show that he has done all that he is bound to do, to entitle himself to the performance of the condition. 2 Cru. Dig. 33, sec. 26; Com. Dig., Condition, L. 4-9. Generally, the party who is bound to perform a condition must do it at his peril, and the other party is not bound to do any thing ; but if, by the terms of the condition, it is made the duty of the party to do any act before the condition is to be performed — as to give notice of any fact, or to make a demand, or the like — and he fails to do it, the condition is not broken. And if, in pleading in any such case, the party fails to aver the performance of such act, with the time, place, &c., when these are mate — 137 — rial, his title will be deficient. Com. Dig., Pleader, C. 69, 73, Condition, 10, 11, Gould Pl., ch. IV., sec. 15; 1 Saund. 33, note (2.) In many cases there is nothing in the terms of the condition which requires the party who claims the benefit of it, to do any thing; and yet the law implies, from the nature of the contract itself, that certain things must be done by him before the condition is broken, because it would otherwise be out of the power of the other party to perform it; and in such cases the effect of a neglect to do any thing thus implied, is the same as if it was expressed. Watson v. Walker, 23 N. H. (3 Fost.) 491. The act implied must be done, and its performance alleged and proved, or the party can take no advantage of the supposed breach of the condition. Gould Pl., ch. 4, sec. 15 ; Arch. Civ. Pl. 102. And it is in this view that the questions of notice and request are material in this case. As to the first of these, the law implies that the parties must have agreed or intended that notice should be given by the party entitled to the benefit of a condition, of every fact necessary for the other party to know, to enable him to perform the condition, and of every material circumstance connected with it, which is within his peculiar and personal knowledge, or which depends on his choice, so that the other party has no means, or no reasonable means, to ari’ive at that kzzowledge except from the party himself. But where the cozzdition depends on any act of a third person, no notice is implied, azzd the party who is bound to perfoz’m is bouzzd to take notice of such act. In the class of cases where the peziormance of the condition depezzds on any thing to be done by the party entitled to the performance, to or with any third person, who is distinctly named or designated, or by any such third person to or with him, though it is apparent that what is done is more propezdy and paz-ticularly within the knowledge of the plaintiff, yet, because the defendant may obtain — 138 — knowledge of it otherwise than from him, notice is not required to be given nor averred ; for the party who is hound must take notice of it at his peril. Dix v. Flanders, 1 N. H. 427; Watson v. Walker, 23 N. H. (3 Fost.) 491; and see Lent v. Paddleford, 10 Mass. 238; Hobart v. Hilliard, 11 Pick. 144; Farwell v. Smith, 12 Pick. 87; Clough v. Hoffman, 5 Wend. 500; King v. Holland, 5 D. & E. 621; 1 Saund. 116, note 2; 2 Saund. 62 (a), note 4; see also Yin. Ab., Condition, A. (d); B. (d), Notice, 1 to 5 ; Com. Dig., Condition, L. 8, 9, 10, Pleader, C. 73-75 ; Arch. Civ. PI. 102-104, where the ancient cases are collected. In this case the condition of the conveyance was, “ to indemnify and save harmless the plaintiff for the support of his father, Jesse Whitton, agreeably to his bond,” &c.; and the question is, whether the facts on which the performance of the condition depends are so peculiarly within the plaintiff’s knowledge, and so far beyond any reasonable means of knowledge of the defendant, that the law will imply that notice must be given to enable the defendant to perform his contract. And it seems to us that the defendant had ample means to ascertain all he needs to know in order to perform his contract, within the rule before stated. He might indemnify the plaintiff by furnishing himself the necessary support for Jesse Whitton, or by procuring othei’s to furnish it; as that would be his own act, he would be bound to notice that he had not done it. He might indemnify him by paying to him the amount he was liable to others for Jesse Whitton’s support, and any damages. And it must always be in his power to ascertain from Jesse Whitton himself whether he was supported by the plaintiff, or on his credit. The value of such support could not, in the nature of things, he a secret of the plaintiff’s. In this view we are sustained by the cases of Sanborn v. Woodman, 5 Cush. 41, where the grantees were bound to indemnify the demand-ant from the payment of the principal and interest of a — 139 — certain mortgage, and on demand of the assignee of the mortgage, the demandant paid the interest, and entered for condition broken, and it was held he was not bound to give notice, or to demand repayment of the interest; Duffield v. Scott, 3 D. & E. 374, where, on a covenant to indemnify the plaintiff’ against debts of his wife, it was held he was not bound to give notice of a demand on him for such a debt; Cutter v. Southern, 1 Saund. 116, where, on a bond to save harmless and indemnify the plaintiff’ against all damages from one Cook, it was held the obligor was bound to take notice of the act of a stranger, as Cook was; Ker v. Mitchell, 2 Chit. 487, where, on a bond to save a party harmless from all actions, costs, &c., which might be the consequence of A.’s delivering to the defendant a bill of exchange, to part of which a third person was entitled, it was held forfeited by payment to the third person of his share, on his demand of it, though no notice of the payment was given to the defendant; and Clough v. Hoffman, 5 Wend. 499, where a partner, who had covenanted to pay all the company debts, was held liable to his co-partner, who had been called upon to pay, and had paid such a debt without notice of the debt, or action, or payment. Whenever an actual request is necessary to be stated, the general averment, “though often requested,” is not sufficient. Such request, if essential to the breach, is so also as to the right of action ; and it must therefore be specially alleged (Gould PL, ch. 4, secs. 5-16) wherever such request is, either by the terms or nature of the contract, the condition of the liability. Oh. Pl. 323 ; 1 Saund. 33, note 2 ; 1 Saund. PL & Ev. 131. By the terms of this condition, no request was necessary. The only question is, if a request is necessary by implication of law from the nature of the contract. Where it any way depends on the pleasure of the party in what manner, or at what time, a thing shall be done, or whether — 140 — it shall be done at all, the party must request performance of a condition. Com. Dig., Pleader, C. 69. That is not this case, and I have found no other case where a special request is held necessary, unless it is so expressed in the contract. Upon these views The demurrer must be overruled.