Thomas v. Record , 47 Me. 500 ( 1859 )

The opinion of the Court was drawn up by

Rice, J.

The defendant was the original owner of the land demanded. On the 13th day of August, 1849, he conveyed the same to Samuel T. Record, by deed of warranty. That deed contains the following provision immediately following the description of the land conveyed, — “I give the said Samuel T. Record this deed on the following conditions, to wit, the said Samuel T. Record shall maintain and support myself, the said Perez T. Record, and Asenath Record, wife of the said Perez T. Record, for and during the term of their natural lives, and shall, at all times, furnish them with suitable and proper support, and shall treat them with kindness, and, in all respects, conduct towards them as is the duty of á son to his parents.”

There are still further conditions, not, however, material to this issue. The deed contains no provision for reentry.

The demandant claims by virtue of a levy upon a portion of the estate against Samuel T. Record.

Does the language in the deed constitute a condition ? There can be no doubt that such is the fact. In the language of the Court, in Gray v. Blanchard, 8 Pick., 284, — “ The words are apt to create a condition; there is no ambiguity, no room for construction; and they cannot be distorted so as to convey a different sense from that which was probably the intent of the parties.” The conditions are consistent with the nature of the grant; not incompatible with any rule of law; not requiring any thing immoral, and not inconsistent with public policy. Nor is there any evidence of fraud or collusion between the defendant and Samuel T. Record, in the case as presented.

It is usual in the grant, to reserve in express terms to the grantor and his heirs a right of entry for breach of condition ; but a grantor, or his heirs, may enter and take advantage of a breach, though there be no such clause of entry in the deed. 4 Kent’s Com., 123; Gray v. Blanchard, 8 Pick., 284.

The evidence offered was competent and pertinent. The action will, therefore, stand for trial.

Tenney, C. J., and Appleton, Goodenow, Davis, and Kent, JJ., concurred.