Ayer v. Emery , 96 Mass. 67 ( 1867 )

Bigelow, C. J.

The title of the demandant depends on the question whether the deed under which the tenant holds the estate in controversy can be properly construed to have been a grant on a condition subsequent. Applying to this deed the rules of interpretation which are to be resorted to in order to ascertain whether a grant is absolute or conditional, and which are fully stated in the recent case of Rawson v. School District in Uxbridge, 7 Allen, 129, we are brought to the conclusion that the tenant holds the premises by an indefeasible title. There are no apt and proper words in the deed to create a condition ; there is no clause of re-entry or forfeiture; it is not provided that the deed shall be void in a certain contingency; flor was the conveyance made solely in consideration of certain acts to be done or for the accomplishment of a specific purpose on the fulfilment of which the estate granted is made to depend. The grantor has not only omitted to use any words which can be properly held to create an estate on condition according to the technical rules of law, but he has also failed to indicate any clear intent to cause the estate to be defeated by reason of any act or omission of the grantee., The strongest view which can oe fairly taken of the language of the deed in support of the demandant’s case is that it is of equivocal import. But it is perfectly well settled that an estate on condition cannot be created by deed, except when the terms of the grant will admit of no other reasonable interpretation. Rawson v. School District in Uxbridge, ubi supra, and cases cited.

Taking the deed and the lease as one instrument, intended to embody the agreement of the parties as to the possession and enjoyment of the premises therein described, they are susceptible of the construction that the grantor of the tenant intended to rely on the personal covenants of the latter to fulfil the various stipulations set out in the two instruments, and not to make his grant conditional on their performance. It certainly is not reasonable to suppose that the parties intended that a failure to fulfil any one of the many stipulations which entered into the consideration of the grant, however trivial or unimportant, should work a forfeiture of the estate; and yet such would be the result, if the deed is construed as a grant on condition. The instrumenta are inartificially drawn, and it is difficult to ascertain from them the exact intentions of the respective parties in relation to the subject matter of their stipulations. But the burden is on the demandant to establish that the estate of the tenant is determined. This she cán do only by showing that the tenant holds the premises on strict condition, of which there has been a breach which has worked a forfeiture of the tenant’s estate. Inasmuch as she has failed to show this, it does not advance her case to urge that her husband made an unwise and improvident bargain, and that she has a strong claim to relief of some sort. A court of law cannot vary the rules of construction to meet cases of hardship and injustice, however gross or remediless they may be. Judgment for the tenant.