Tallman v. Snow , 35 Me. 342 ( 1853 )

Tenney, J.

— The conveyance of Peleg Tallman to Henry Tallman, by the deed of the former, dated Feb. 16,1837, Avas upon condition. It was clearly the intention of the grantor, as shown by the terms of the condition, that the whole estate should pass immediately upon the delivery of the deed to the grantee. And that the request of the demandant to have the use, occupation and improvement of the premises, would not be made till a future time, the grantor being in full life, at the time when the deed was to take effect. Hence the condition was subsequent, and the entire title vested in the grantee, and he could enjoy the estate exclusively till it should be surrendered on the request of the demandant, or until his title should be divested by reason of a forfeiture for the non-fulfillment of the condition.

If the demand for the use, occupation and improvement of the premises contemplated in the condition of the deed, Avas made in the mode, by the person, and of the one, necessary to make that demand legally effectual, and there was a refusal to surrender it of Avhich Ave see no occasion to examine and decide, it would amount to a breach of the condition, and there would be a forfeiture. But some further act is necessary to the maintenance of the present suit.

After the breach of a condition subsequent, an entry is needful to avoid the estate, and cause it to revest in the person, who had it originally, or one, Avho has succeeded to his rights. Until this, the party who committed the breach, would hold the title notwithstanding. There may have been a dispensation by him, who was entitled to insist upon the forfeiture. Shep. Touch. 154; Litt. § 351; Co. Litt. 218, (b) note 133. The entry is not a matter of form only, which may be dispensed with under R. S. c. 145, <§> 6, but remains as it was at common law, where it is of substance and intended to cause a forfeiture of the estate. Marwick v. Andrews, 25 Maine, 525; Bangor v. Warren, 34 Maine, 324. See Austin v. Cambridgeport Parish, 21 Pick. 215.

If the demandant by virtue of the condition of the deed from Peleg Tallman, to Henry Tallman, and of the will of Peleg Tallman, her late husband, or both, was entitled to claim the forfeiture and the estate for her life in the prem ises, the stops indispensable for the enforcement of her rights before the institution of a suit like the present have not been taken. If the deed had conveyed an estate to be determined by limitation, it would have been otherwise, an entry not being required to revest the title. Frost v. Butler, 7 Greenl. 225. Plaintiff nonsuit,

judgment for the tenant.

Shepley, C. J., and Howard, Rice and Appleton, J. X, concurred.