Hooper v. Cummings , 45 Me. 359 ( 1858 )

The opinion of the Court was drawn up by

Cutting, J.

It appears from the report of the evidence in this case, that on April 6, 1803, Jonathan Cummings conveyed to Nathan Woodbury and others, all of Paris, “ a committee appointed to build a meeting-house in said town,” four acres and seven rods of land situated on Paris Hill — that, in the deed succeeding the covenants, were these word, “ providing the said committee and proprietors fence the said land and keep the same in repair” — that, during the same year, the meeting-house was built — that the land was fenced, except on the highway, and the fence kept in repair until a few years previous to the institution of this suit, when a portion of it, on the south side, was suffered to decay or be removed — that the plaintiff is now the proprietor of one sixty-fourth' part of the land, including a pew in the meeting-house.

The defendant justifies his proceedings upon the land, which constitute the cause of action, as the servant of Jonathan Cummings, the original grantor, who, in the spring of 1856, had made a re-entry for a breach of the condition.

We may assume that the proviso in the deed created a condition subsequent, and, in this, we are sustained by most, if not all, the authorities, ancient and modern; notwithstanding it is to be construed strictly and most strongly against the grantor to prevent, if possible, a forfeiture of the estate. “ If the word proviso be the speaking of the grantor, feoffor, donor, &c., and obliges the grantee, &c., to any act, it makes a condition, in whatever part of the deed it stands; and, though there be covenants before or after, is not material.” 3 Com. Dig. 84, (Condition.)

And, we may further assume, that the evidence discloses a breach of the condition, inasmuch as the land has never been fenced on the highway, and has remained in that situation for more than half a century. And, in the mean time, the grant- or, living in the vicinity, has permitted the meeting-house to be erected and maintained, and the pews and corresponding portions of the lot to be conveyed to members of the parish, at different periods from the date of his deed to the present time. And all this was done without complaint, or any action on his part to reclaim the land. If ever there could be a waiver of a condition evidenced from the conduct of a party, this would seem to be such a case; certainly, as much so as those cases where a person stands silently by and permits property to be conveyed to which he has a legal claim. Lord Coke remarks, 1 Co. Litt. 218, “Begularly, when any man will take advantage of a condition, if he may (can) enter, he must enter; and, when he cannot enter, he must make a claim; and the reason is, for that a freehold shall not cease without entry or claim, and also feoffor or grantor may waive the condition at his pleasure.” Vide Willard v. Henry, 2 N. H. 120, where a non-claim for a much shorter period of time, was held to be a waiver of the condition. See, also, Commonwealth v. Tenth Mass. Turnpike Corporation, 11 Cush. 174. The cases cited from 13 Wend. 530, and 3 Cow. 220, are not applicable here; there the Court were giving a construction as to the effect of certain acts under a conditional lease, which created a tenancy for years, and not a freehold estate. It was only a reiteration of ancient law to be found in Cro. El. 553. “ If a condition upon a lease for years be, for non-payment of rent to re-enter; the acceptance of rent at a subsequent day, is a dispensation,” but only for an antecedent breach, « for he affirms the estate to have continuance.” 3 Com. Dig. 132. The condition-usually inserted in leases, is for the purpose of securing the payment of rent, and even a strict construction against the lessee, would operate no unnecessary hardship on him, for at most, he- would only be obliged to yield up that for the use of which he had agreed to pay an annual compensation.

But we have taken another view of this case, which, to us, appears decisive. It is well settled at common law, that none but the grantor, his heirs and legal representatives can take advantage of a breach of a condition subsequent, and none others can re-enter or claim the estate. And the R. S., c. 94, § 1, has not changed the law in that particular. Bangor v. Warren, 34 Maine, 324.

Now, it appears in this case, that the grantor, Jonathan Cummings, by his deed dated Dec. 29,1855, conveyed to Geo. H. and-Horace Cummings, all his right, title and interest in and to the premises in controversy; at which time he had not entered. ■ “ But, when condition is once annexed to a particular estate, and after, by another deed, the reversion is granted by the maker of the condition, the condition is gone.” 5 Yin. Ab. 306. Then there is no person capable of making the entry or claim; ■ the grantor cannot, for he has parted with his interest — the grantee cannot, because he is a stranger to the condition. ■

■ B'ut it may be contended, that an - office copy-of the deed was not admissible in evidence. It was not introduced at the trial, but was presented at the argument under the agreeffiént in the report, -that “ office ■ copies of any other deeds pertinent to the issue, and legally admissible, which either party may introduce at the hearing, are referred to and made a part of the case." The party offering such office copy iu evidence is not a party to the deed, nor claims as heir, nor justifies as servant of the grantee or his heirs. Vide Rule 26, as to the admissibility of office copies.

According to the agreement of the parties, the defendant is to be defaulted, and judgment rendered for $1, damages.

Tenney, C. J., Hathaway, May, Goodenow, and Davis, J. J., concurred.