Hovey v. Deane , 15 Me. 216 ( 1839 )

The case was continued for advisement, and the opinion of the Court afterwards drawn up by

Shepi.ey J.

This case having been again opened to the jury, the plaintiff submitted to a nonsuit, subject to certain exceptions taken to the title under which the defendant justified. lie first alleges, that the Commonwealth, by the reservation in the deed elected to be disseized so far as relates to the settlers’ lots ; and that the title did not pass to the grantee. This position is inconsistent with the language of the deed and the intention of the parties, which required, that the title should vest in the grantee, and that he, or his heirs, should upon payment of the stipulated sum, convey the title to the settler. No such election can be admitted to violate the declared intention of the parties.

The second is, that the conveyance was upon a condition precedent. And it is said, that the settler could not be dispossessed until after the time limited for the payment. And it may be so, and yet the fee might pass subsequent to his tenancy for that period. The former case decided, that the fee did pass immediately to the grantee.

The third is, that the settler took an estate “ defeasible on condition subsequent,” liable to be defeated by neglect to perform wdiat was required of him. And it is insisted, that he might remain passive until the grantee or his heirs located the lot, and was ready within the State to execute the deed upon payment by the settler. By the terms of the conveyance, the settler had an election, whether he would accept the title upon the terms offered. And it was his duty first to make known his pleasure by giving notice of his desire to purchase and of his readiness to pay upon an assignment of the lot, and an execution of the conveyance. It would then be in season for the other party to perform. If the settler had shewn due diligence and an inability to find the grantee or his agent within the State, and a readmes on his own part to perform, he may not have been obliged to do more; and the grantee under such circumstance's' might be under obligation to convey after the appointed time. The settler in this case has not proved performance-, nor that he has been prevented by the act of the grantee. This objection requires of the grantee in substance proof, that he assigned the lot and presented himself ready to convey and receive payment, before the settler signified Ms election to purchase.

Nonsuit confirmedH