Hunt v. Wright , 47 N.H. 396 ( 1867 )

Bartlett, J.

The proviso in the deed is not repugnant to the estate granted, for originally at common law, a tenant in common could not be compelled to make partition; Lit. sec. 318; Co. Lit. 187, a; 2 Blk. Com. 194 ; and the right given by statute, being for the benefit of the party, may be waived by him. Coleman v. Coleman, 19 Penn. 100 ; Broome Leg. Max. 547. It is not in restraint of alienation, for each tenant may convey his share at his pleasure, nor does it prevent a beneficial enjoyment of the profits, for by the articles of association the rents, after deducting the incidental expenses, are to be divided among the tenants in proportion to their shares; it is merely a partial and temporary restriction as to the mode of occupation. Gray v. Blanchard, 8 Pick. 289. Similar provisions have frequently been treated as valid; 1 Shep. Touch. 129, 130; Gray v. Blanchard, 8 Pick. 289; Gillis v. Bailey, 17 N. H. 18; Gillis v. Bailey, 21 N. H. 150; Emerson v. Simpson, 43 N. H. 475; Chapin v. School District, 35 N. H. 451; Woods v. Cheshire Co., 32 N. H. 423; Savage v. Mason, 3 Cush. 500; Richardson v. Merrill, 8 Shep. 49; Fisher v. Dewerson, 3 Met. 546; Parsons v. Miller, 15 Wend. 564; Stuyvesant v. Mayor, 11 Paige 414; Cornelius v. Ivins, 2 Dutch. 376; Southard v. Railroad, 2 Dutch. 13; Collins v. Marcy, 25 Conn. 242; Hooper v. Cummings, 45 Me. 359; Railroad v. Parke, 6 Wright (Penn.;) and although the provision in some of these cases was by covenant, yet alienation can no more be restrained by covenant than by condition. 2 Cruise (Gr. Ed.) sec. 6, n; Platt on Cov. sec. 569.

Nor is the proviso invalid as creating a perpetuity. The policy of the law has been opposed to perpetuities, because they prevent the free alienation of property. 4 Kent 2G4; 1 Jarm. 219;. 1 Shep. Touch. 130. It has been said that "a grantor when he conveys an estate in fee, cannot annex a condition to his grant absolutely restraining alienation; * * * * ; SUch restriction being imposed on him to prevent perpetuities ; but short of that restriction the parties may model it as they please.” Platt on Cov. 404; Mitchinson v. Carter, 8 T. R. 60; Broome Leg. Max. 539. Here the proviso imposes no restraint upon alienation; and does not at any time prevent a beneficial enjoyment of the property and of its profits; it would seem to have no greater tendency to perpetuity than the original rule of the common law as to the partition of such estates, and indeed it creates no greater restrictions than often exist in cases of real estate devoted by grant to the uses of co-partnerships or corporations; and many of the cases cited, to which others might be added, show conditions or covenants limiting the mode of enjoyment of the property conveyed quite as strictly, and creating quite as much if not more difficulty in alienation than the provision in question. The condition being subject to the articles of association is to continue only till the objects of the association are accomplished. Coleman v. Coleman. Under the articles of association, those objects are "the erecting and managing” of a. hotel on a certain lot of land in Nashua, and provision is made that ’"holders of shares to the amount of two thirds of the whole shall be a quorum to transact business,” and that "all questions shall be decided by a majority of votes cast, each stockholder being entitled to one vote for every share he owns;” so that under these articles power is given to dissolve the association at any time; and aside from these specific provisions in the articles adequate powers of dissolution can be found in equity. Story Part. secs. 275-291, and n. In any view, therefore, the proviso does not create an obligation that in law should be deemed perpetual. Goesele v. Bimeler, 14 How. 608.

We are, therefore, of opinion that the proviso is not invalid as repugpant to the estate granted, or upon, grounds of public policy. Coleman v. Coleman; Goesele v. Bimeler, 1 Co. Lit. 165, a, and see Brown v. Church, 23 Penn. 495 ; Conant v. Smith, 1 Aik. 67 ; Black v. Tyler, 1 Pick. 152.

The words used in the proviso are apt to create a condition, Gray v. Blanchard, 8 Pick. 289, Com. Dig. condition A. 2, Bac. Abr. condition A. & E., 10 Co. 42, a, and though this might not of itself prevent the clause from being also a covenant, Bac. Abr. condition Gr., Platt on Cov. 72, 2 Co. 71, b, Shep. Touch. 163, we need not here inquire whether the grantee, not executing such a deed, can be held as a covenantor, or whether the words are sufficient to raise a covenant, nor question the general rule that no one but the grantor and his heirs can take advantage of a condition; for here the petitionee does not seek to take advantage of a condition as such, which can only be by enforcing forfeiture; 2 Cruise (Gr. Ed.) 32 ; but the petitioner makes his title and founds his claim to partition solely upon a deed, the condition of which is that he shall not have partition. If the proceeding had been ■ against Stevens, his grantor, Hunt would have been estopped to assert such a claim, for it would have been in conflict with the condition in the deed of Stevens, upon which he holds his estate, Robinson v. Leavitt, 7 N. H. 76, Bates v. Norcross, 17 Pick. 22, Co. Lit. 365, b, and inconsistent with the terms of that deed, by virtue of which he makes the claim; and although the grantee in a deed poll, merely as such, may not be estopped by its acceptance, yet as against his grantor and his privies, where he is making his title under such a deed, and asserting his claim solely by reason of it, he is estopped to enforce such claim, if it is inconsistent with the valid provisions of the deed. Chit. Con. 6 : 2 Smith’s L. C. (Am. Ed.) 538 ; Co. Lit. 352, a; Com. Dig. Estoppel A. 3; Jackson v. Ireland, 3 Wend. 99 ; Wilder v. Russell, Cheshire, August, 1866 ; Great Falls Co. v. Worster, 15 N. H. 415, 457; Wellusson v. Woodford, 13 Vesey 218; Green v. Kemp, 13 Mass. 519 ; Flanders v. Jones, 30 N. H. 163 ; True v. Condon, 44 N. H. 58 ; Russell v. Dudley, 3 Met. 149 ; Brown v. Snell, 46 Me. 446; Bank v. Bisley, 4 Den. 480; Bank v. Mereserau, 3 Barb. Ch. 529, 570; Oakley v. Perry, 3 Ohio (N. S.) 347; Gerrish v. Proprietors, 26 Me. 394; Funk v. Newcomer, 10 Md. 318; Coleman v. Coleman, 19 Penn. 112 ; Roessel v. Wrickham, 36 Barb. 386 ; Smith v. Smith, 14 Gray 532; Smith v. Guild, 34 Me. 443; Thompson v. Thompson, 1 Appl. 239, 240; Flagg v. Mann, 14 Pick. 482; arid see Parker v. Brown, 15 N. H. 188; Hamblett v. Hamblett, 6 N. H. 339 ; Hazelton v. Batchelder, 44 N. H. 43 ; Pitts v. Gilliam, 1 Head 550; and Wedge v. Moore, 6 Cush. 8.

Stevens also would be estopped to claim partition against Hunt and his privies, for such a claim wmuld obviously be inconsistent with the condition in his deed, and with the title he has thereby conveyed. 2 Smith L. C. 456 ; 4 Kent 261, n ; Com. Dig. Estoppel A. 2 ; Thompson v. Thompson, 1 Appl. 242; and see French v. Bent, 43 N. H. 449. Between Wright, holding under a like deed, and his grantor, Stevens, a similar estoppel would exist; and as both he and Hunt claim under such deeds from the same grantor, executed and accepted in pursuance of a common arrangement and in furtherance of a common object, and as parts of one general transaction between these parties and their associates, they and those claiming under them are equally estopped as against each other, when they assert claims under those deeds. Com. Dig. Estoppel B.; Co. Lit. 352, a; Corbett v. Norcross, 35 N. H. 99; Hill v. Hill, 4 Barb. 430; Jones v. Johnston, 18 How. 150; (16 D. 263, 55.)

The case does not find that the association has been dissolved, but simply that no meeting of the association has been held since May, 1849, but neither by the articles of association nor in law does this fact of itself dissolve this association. "Words. Joint.Stock Com. 392, 393 ; and see Story Part. secs. 280, 282 ; 3 Kent 53, 60 and 61.

The petition must therefore be dismissed.