Fisk v. Chandler , 30 Me. 79 ( 1849 )

Shepley, C. J.

— The demandant, on May 16, 1845, conveyed certain premises in mortgage to Benjamin C. Wing, to secure the payment of five promissory notes of $100 each, one of them payable yearly. At the same time he conveyed all his remaining interest therein to Lewis Chase, who gave him a bond obliging himself to reconvey upon certain conditions.

On January 20, 1847, the demandant by deed of that date, conveyed one half of the same premises, with certain reservations, to the tenant upon certain conditions to be hereafter noticed, and Lewis Chase, by a release made upon the back of the same deed, relinquished all his title and interest in the premises conveyed to the tenant. That deed contained a clause providing, that the tenant should redeem the premises mortgaged to Wing by paying the notes mentioned in the mortgage, which remained unpaid, “ so that neither the said Allen Fisk or his heirs, executors, administrators or assigns shall have any cost or trouble on account of said notes or mortgage.” The conditional clause also required the payment of certain other notes. The conclusion was in the following words, “ then the foregoing deed is to be and remain good and valid, otherwise it is to be null and void so far as to make good any non-fulfilment of the above conditions.”

Four of the notes, and the mortgage made to Wing, were by him assigned to James K. Bachelder, the note first payable had been mostly paid. The one, which next became payable, was not paid at maturity, and Bachelder called upon the demandant and tenant to pay it find agreed with them to wait a fortnight longer. When that time expired he agreed with the tenant to wait until February then next, if the demandant had no objection to it. After this the demandant inquired of Bachelder, if the tenant had taken up the note and was informed that he had not; and was informed of the agreement to wait till February, to which he made answer, that if the tenant had not paid it, he should. He afterward in the latter part of September paid the note, and subsequently informed the tenant that he had taken up the note and shew it to him. The tenant said, I suppose I can have it by paying it, to which the demandant replied, I will negotiate about it. They then separated. After this time, on November 20, the demandant entered upon the premises in presence of a witness stating, that he entered on the estate for condition broken, and then notified the tenant that he had taken possession. There was a small balance due on the note previously payable, which constituted a part of the same arrangement and payment.

The release made by Chase to the tenant operated merely to extinguish his title; and if the title of the tenant or his right of possession be forfeited by his omission to perform the condition, and by the entry of the demandant for condition broken, the title or right of possession will revest in the demandant.

The conveyance to the tenant was made upon a condition subsequent. If he did not perform it, his title or right of possession, so far as the condition required, would be avoided by the entry made for that purpose. The intention of the parties in making that condition was to secure the payment of the notes named in the mortgage, without cost or trouble to the maker. It might be important to him, that the tenant should not receive the income of the estate and permit the notes to remain unpaid and the accruing interest on them to accumulate.

If that part of the condition be regarded as a mere contract of indemnity, to save the demandant harmless from those notes, he would be entitled to pay what had become due and been demanded of him. One, who has a contract of indemnity against a claim upon him, may after payment maintain an action upon it.

If there were no limitation to the annulment of the title by an omission to perform the condition, the case would be determined by the application of well settled principles. That limitation was evidently not intended to destroy the effect of the condition or to prevent the demandant from obtaining possession of the premises, as security for indemnification. The intention appears to have been to empower him in such case to hold the premises as a pledge or mortgage. That intention may be carried into effect by the application of the rules of law and equity, which this Court can administer.

Judgment for demandant.