O'Brien v. Doe ex dem. Henry , 6 Ala. 787 ( 1844 )

ONMOND, J.

The preliminary proof was sufficient to authorize the introduction of the secondary evidence of the contents of the deed from Kennedy to Adams, as is fully shown by the cases heretofore decided by this court, and cited by the defendant’s counsel. In addition, it is to be observed, that the deed is not exclusively a muniment of the title of Henry, as it covers fourteen lots of which he claims but one. It is, however, urged, that as a demise is laid from Adams, he is a plaintiff in the suit; and, therefore, his oath was necessary to prove the loss of the original. The practice of laying several demises is usually resorted to where there is a doubt under which the plaintiff may be able to prove title in the premises; but no doubt can ever exist as to who is the real plaintiff on the record. The demise itself being a fiction, and the one laid from Adams wholly unnecessary, as the title had long since passed from him, will not be permitted to interpose any difficulty. Henry is obviously the only real plaintiff on the record, although several demises from others were unnecessarily laid.

The true construction of the deed from Kennedy to Adams, is, that interest, as rent, was to be paid on the purchase money annually, as well after as before the expiration of the term of three years, within which time, it appears, the parties supposed the title would be either confirmed or made void by the government, unless before that time the title had been confirmed, in which event the interest would not be payable as rent after the expiration of the three years, the thousand dollars agreed to be given as the purchase money being then due.

This, then, was an estate in fee simple, which was to terminate upon the happening of a condition subsequent; but notwithstanding the condition was broken, the estate of the grantee was not divested until the grantor entered and defeated the estate. The counsel for the plaintiff in error contends, that such entry was made in this case for a breach of the condition; and that the estate, previously granted, was thus re-vested in the grantor. To establish this breach of the condition and re-entry by the grantor, he relies on the statement of the evidence in the bill of exceptions: “That Adams went into possession of the lot on the south side of Government street, fenced it, and built a small house on it, and continued in the occupancy for two or three years, when he abandoned it, and went to Mississippi, where he still resides. That upon his removal from it, Kennedy enter-ed into possession of it.”

It has been already stated, that although the condition may have happened upon which the estate was to be forfeited, no forfeiture accrued until the grantor manifested his intention to claim the benefit of it by entering upon the land with the design of terminating the previous estate. An entry, therefore, for that purpose, must be such a notorious, unequivocal act as will demonstrate that intention. That such must be the character of an entry, is the express language of Blackstone is his 3d vol. 175: “The party entitled may make a formal, but peaceable entry thereon, declaring that thereby he takes possession; which notorious act of ownership is eqvivalent to a feodal investiture by- the lord.”

The tract conveyed by Kennedy to Adams, consited of fourteen lots of ground, eight'of which lay on one side of Government street, and six on the other; the lots on the south being in his actual occupancy, and those on the other side of the street, where the locus in quo is situated, being then and for many years after, vacant.

What is meant by the expression in the bill of exceptions, that. he abandoned his possession to it? The counsel for the plaintiff in error, contends, that it means that he gave up or yielded the title to all the lots. In our opinion, its fair interpretation is merely, that he left it, as we find in the next sentence, that the term “removed,” is used as equivalent to the term abandoned, previously employed. The lots were separate and distinct from each other, and so considered by the grantor, as he refers to the plan of the city of Mobile for their boundaiiss; we cannot, therefore; understand the expression in the bill of exceptions, that he abandoned it,” (the house he had built and occupied) to mean that he relinquished or yielded up his right and title to all the lots.

His conduct at or about the time, contradicts such a supposition. He went into possession in April, 1818, and as stated in the bill of exceptions, remained in possession, “two or three years;” yet we find, that on the 12th January, 1822, he conveyed the lot in dispute to Antoine Foucho. which demonstrates that he did not consider that he had abandoned his title to that lot. But' if this difficulty were surmounted, the fact that Kennedy went into possession of the house and lot when left or abandoned by Adams, is not an entry upon the other distinct and separate lots, which were then vacant, and had never been actually occupied by Adams.— The' fee which was vested in Adams by the deed, could not be divested by such an equivocal act. To produce that result, there must have been such an assertion of title by Kennedy, as to place it beyond controversy, that he entered upon the lot as his own, for a breach of the condition. Whether his entry upon the lots on the south side of Government st, was sufficient to divest the title to those lots, is not a question now before us.

The cases of Jackson v. Stewart, [6 Johns 34,] and of Jackson v. Demarest, [2 Caines, 381.] relied on by the counsel for the plaintiff in error, do not establish the proposition for which he cites them. They merely show, that, where there is an abandonment of the possession by the lessee, and an entry and continued possession afterwards by the lessor, that after a great lapse of time, it will be presumed the lessor entered for non-payment of rent.— In Jackson v. Walsh, [6 Johnson, 226,] it was held that the lapse of nine years did not raise the presumption of a re-entry for the non-payment of rent. In this case, there is not only no proof of an entry on this !o', but the fact -s shown to- be, that Fouche, the purchaser from Adams, asserted t.tle to it, and paid the taxes upon it.

The alleged entry' of Kennedy be ng for a breach of the condition, it was necessary for hen t > -st‘us r-ght to re-enter, by proving the non-paym nt-.-ithe r u Tii g n. ral rule certainly is, that a party nv: rr.n; ■ n -x tv- .s n -t !)■.uni to prove-it, but the proof tfjust- coim horn u-m who ¡..‘■Ss rts the affirmative, and Within whose knowledge .t p> culmrly lies. But the rule does not apply to such cases as the present, because the estate is-vested by the deed, and he who asserts that it is forfeited,' musí proven. In Doe v. Whitehead, [8 Adol. & E. 571,] which was ejectment for an alleged forfeiture of a lease, for omitting to insure which, by the terms of the lease, was to be a forfeiture, the court held that the landlord must prove that insurance had not been made. That the estate was vested in the lessee, and could only be got rid of by proving a forfeiture — that the difficulty of the proof did not vary the rule of law.

Doubtless, in such cases, slight proof would be sufficient prima facie, and in this case, would not have been difficult, as the production of the note, which it appears from the deed was executed co-temporaneously with it, would have been sufficient to raise the presumption of a breach of the condition.

It was, however, urged, that although the law might be so when the grantor was suing to obtain the possession, that the rule did not obtain when he was in possession, and suit brought against him. Doubtless, a long possession by the grantor, acquiesced in by the grantee, might be sufficient to raise the presumption, that the original entry was for a breach of the condition, but in this case, the only entry of Kennedy proved, upon this lot, is a forcible possession taken of it from the plaintiff in 1835 or 1836, and there can be no difference in the rule of law, between his defending himself against such a forcible taking, or suing to obtain the possession. A man cannot by his own wrongful act, charge the rules of law, and diminish quantity or change the quality of the evidence necessary to sustain his claim.

From the view which we have taken of the case, it results, that the charge of the court was substantially correct, and its judgment is therefore affirmed.