Allen v. Bucknam , 75 Me. 352 ( 1883 )

Daneorth, J.

After the evidence was out in this case, the presiding justice ruled, " that, if the farm was bought by the defendant of Coffin, and he took Coffin’s place with the consent of and agreement with the plaintiffs, he agreeing to take the land upon the same conditions Coffin had it and pay the plaintiffs as before, ” the plaintiffs would be entitled to a verdict. The defendant thereupon submitted to a default which is to stand if the ruling is correct, otherwise to be taken off.

This ruling is predicated upon and must be tested by the facts thus hypothetically stated. The evidence reported is clearly sufficient to establish them as facts, but if not, the default by consent precludes any inquiry into their verity.

The conditions under which Mr. Coffin held the land in: question, are imposed by the will of Louisa J. Bucknam ; who devised the land to said Coffin upon the condition, " that he pay annually the sum of fifty dollars to the Methodist E. church of Columbia village, for the support of the preaching the gospel, or if the said Hiram choose to pay the principal of which the-above sum is the interest, ” then he is to have an unconditional, deed.

It is claimed in defence, that this was a devise of the land upon a condition subsequent, and that the condition is void as tending to a perpetuity, as well as for other reasons. But if it were so, how it affects this case is not apparent. The condition, had been recognized and acted upon by the devisee for a long-series of years. He chose still to recognize it when he sold the property and required as he had a right to do, a promise of the payment of the money in accordance therewith from the purchaser. The defendant gave that promise, both to the grantor and to these plaintiffs. It was by means of it that the consent of the plaintiffs and the deed from Coffin were obtained.. The promise is the consideration for the conveyance, and the conveyance a consideration for the promise. If the condition is good, the defendant obtained all he bargained for; if not good,, he obtained certainly no less. There would not, then, be any failure in the consideration for the promise. That consideration the defendant still retains. He has not been interrupted in his enjoyment of it, nor is it claimed or suggested that he can be. It is, therefore, the simple case of a purchase of land upon a promise to pay a certain sum of money therefor, which the-promisor has neglected to fullfil. In such case, that an action will lie to recover the amount, is too well settled to leave room for doubt.

Nor has the objection to the want of authority on the part of the plaintiffs any better foundation. There is enough in the case to show prima, facie their appointment as trustees. They are the acting trustees; had been recognized as such by Coffin, •as also by the defendant, and are the persons to whom the promise was made.

Default to stand.

Appleton, C. J., Walton, Barrows, Peters and Libbey, <33., concurred.