Cornelius v. Den ex dem. Ivins

The Chief Justice delivered the opinion of the court. This action was brought in the court below, by the defendant in error against Cornelius, to recover possession of a tract of land in the county of Ocean. The lessors of the plaintiff claimed title by devise from their father, Anthony Ivins. The defendant claimed title under a deed from said Anthony Ivins and Sarah, his wife, to Timothy Wiggin and William Hurrey, trustee of Adeline W. Torrey, dated the twenty-first of March, 1842. The validity of the said conveyance from Ivins and wife is not questioned, but the plaintiffs insist that the estate thereby conveyed has been forfeited by a breach of the conditions contained in the deed. Whether such forfeiture has been incurred, is the question submitted for consideration. The deed conveys a lot of land on Toms river, and a strip of land thirty feet in width extending from said lot across the lands of the grantor, “ the several courses most suitable or available for a rail or tramway,” four miles — 383 — more or less, to lands formerly belonging to the Monmouth Purchase Company. The deed reserves to the grantor and his heirs and assigns forever the free and uninterrupted right of way, to travel with teams and carriages upon either side of the rail or tramway, to be built upon the premises by the grantees; also the right of leading and conducting water under the said rail or tramway ; also the right and privilege of demanding and recovering wharfage or compensation for anything landed on the wharves, to be erected by the grantees on the premises fronting on Toms river, by persons not in the employ of the grantees or navigating their vessels; also the right and privilege of loading or unloading any vessel of the grantor upon the said wharves, when not used by the grantees for their own purposes. The conveyance is declared to be made upon, and subject io, the following conditions, viz.: 1. That the grantees, their heirs or assigns, shall not erect or construct any building upon ihe premises conveyed, except the said rail or tramway and docks and wharves, and a store-house for their accommodation, with the necessary appurtenances. 2. That the grantees, their heirs or assigns, shall not convey the said premises, or any part thereof, without first offering the same to the grantors, their heirs and assigns, and giving to them sixty days5 notice of such intended sale, and permitting them to purchase the lands, with all the improvements thereon, at ten dollars per acre. 3. That if the grantees, their heirs or assigns, should at any time wholly cease to use the said rail or tramway for the purpose of transportation or conveyance, or suffer the same to go entirely out of repair and to become unfit for use, or cease to use the same for transportation or conveyance, for the space of five whole years, that then, or in either of said cases, or on failure of any or either of said conditions, the deed and the estate thereby granted should cease, determine, and become utterly void, and — 384 — the said premises should revert to the grantors, their heirs and assigns, and re-vest in them in as full and ample a manner as if this deed had not been made. However inartificial and nntechnical the deed may be in its structure and in many of its provisions, there is no possibility of mistaking the intention of the parties. The design of the conveyance was to vest the land in the grantees for the sole and exclusive purpose of constructing thereon a rail or tramway, with wharves at its termination upon navigable water, and the necessary store-houses and buildings for the convenience of the road in carrying on the business of transportation. It is equally clear that the stipulations in the deed are not covenants merely, but conditions, the violation of which was designed to effect, and does in terms involve a forfeiture of the estate. There is upon this point no room for the rules of interpretation, to decide whether the clauses of the deed operate as covenants or conditions. Rules of construction can only apply in cases of doubt or of the interference of legal principles.with the plain import of language. Two questions only can arise upon the operation and effect- of these conditions, viz. : 1. Are they or either of them valid ? . 2. Have they been violated ? Whatever doubt or difficulty might exist at common law in regard to the first, two conditions, there can be none in regard to the third, which relates to the continued maintenance and use of the road. Though the deed was founded upon a pecuniary consideration, it is obvious that an important inducement to the conveyance was the benefit and advantage to the grantor, derived from the construction and continued use of the -road across and contiguous to his lands. The condition was beneficial to the grantor, and entering into the consideration of, and operating as an inducement for, the grant, it was not unreasonable. If the land was sold by the grantor, and purchased by the grantees for the sole purpose of construct — 385 — ing a road, if that was the sole object in contemplation of both parties, there is surely nothing unreasonable in enforcing compliance with the terms of the contract. Nor was it inconsistent with or repugnant to the nature of the estate granted. A condition that the grantee shall not alien or take the profits of the estate granted, is repugnant to the nature of the estate, and void, because it is of the essence of a fee simple estate that it shall be alienable, and that it shall enure to the benefit of the grantee. But a partial or temporary restriction as to the use of the estate granted may be consistent with the nature of the estate. Thus a condition that the grantee shall not alien to a particular individual, or for a limited time, or that he shall not use it for a specified purpose, or in a prescribed manner for a limited time, has always been held valid. Co. Litt. 206, b. 223 a; 1 Shep. Touch. 129, 131. But the condition now under consideration imposes no restriction upon the use of the estate inconsistent with its nature. It simply requires that a railroad shall be maintained upon- it. This is no more inconsistent with the nature of the estate, than would be a condition that the grantee should forever maintain a road or a water-course across the land, for the convenience of the adjoining estate of the grantor. But it is objected, that if the condition be valid, the right of entry for breach of the condition is limited to the grantee and his heirs, and did not pass by devise to the lessors of the plaintiff. Such was the well-settled rule of the common law recognized and adopted by this court in Southard v. The Central Railroad Co., ante 21. It was further held in that case, that the act of March 14th, 1851, authorizing the transfer of estates in expectancy (Nix. Dig. 126, § 32,) has altered the rule of the common law. That act authorizes the transfer of a right of entry for condition broken, or other future estate or interest in expectancy, by will or deed executed after the act went into operation. The act, by its terms, took effect — 386 — immediately. The will of Anthony Ivins, the devisor under whom the lessors of the plaintiff claim title, bears date on the eighth of April, and was admitted to probate on the seventeenth of May, 1851. The will, therefore, is elearly within the operation of the act, and is operative to transfer estates in expectancy. The will itself has not been in the hands of the court, but no question is made but that its terras are sufficient to pass the estate in question. The title to the forfeited estate, and the right of entry for the breach of the condition, is therefore vested in the lessors of the plaintiff. It is further insisted that an actual entry is necessary in order to maintain the action. As a general rule, it is not neeessary to make an actual entry on land in order to maintain the action of ejectment. The right to enter, not an aetual entry, is requisite to sustain the action. Hylton’s Lessee v. Brown, 1 Wash. C. C. R. 204; Den v. McShane, 1 Green 40; Siglar v. Van Riper, 10 Wend. 414; Lessee of Rugge v. Ellis, 1 Bay. 111; Adams on Eject. 10. And even where, upon strict common law principles, an entry is necessary, as in case of the forfeiture of an estate upon condition, to complete the title, an actual entry is not necessary to maintain ejectment. Thus in Langhorne v. Merry, 1 Siderfin 223, the court held that an entry should be intended till the contrary is proved. So it has been held, in a series of cases running back for more than a century and a half, that the formal confession of lease, entry, and ouster is sufficient to maintain an ejectment for the recovery of a forfeited estate upon condition broken, and that actual entry is not necessary, except to award a fine. Little v. Heaton, 1 Salk. 259; S. C., 2 Ld. Ray. 750; 1 Vent. 248; Oates v. Brydon, 3 Burr. 1897; Jackson v. Crysler, 1 Johns. Cas. 125; Goodright v. Cator, Douglass 485. In Chalker v. Chalker, 1 Conn. 79, a different doctrine, as applied to the action of disseisin, used in that state, is main — 387 — ■tained in a -very elaborate and well-considered opinion, in «which the whole bench concurred. In this state there is no express adjudication upon the point ; the practice is believed to have been uniformly in ■accordance with the principle maintained in England and New York. In Den v. The Lawrence Church, Spencer 551, no evidence of an entry was offered on the part of the plaintiff. In the more recent ease oi Den v. The Central Railroad Company of New Jersey, ante 13, the point was ■ raised, though not pressed by counsel, that a demand -of possession was necessary; bat the necessity of a formal entry to complete the title was not suggested. The practice has been long settled; and as an actual entry on the land is but a formal and unmeaning ceremony, devoid of any practical meaning and unattended by any real advantage, there can be no -utility in enforcing it, however strong the technical reasons in its support. In Goodright v. Cator, Lord Mansfield, in delivering the opinion of the court, said, "we look upon it as having been fully settled in 1703, by the opinion of all the judges, upon deliberation and consideration -of all the «cases, that actual entry is only necessary to avoid a fine; and so the practice has been ever since. The reason of the thing is agreeable ■to the practice, for it is absurd to entangle men’s rights in nets of -form without meaning; and an ejectment being a ■mere ■creature of the court, framed for the purpose of bringing the right to an examination, an actual entry can be of no service.” The judgment must be affirmed. «Cited m McKelway v. Seymour, 5 Dutch. 332.