Jackson, ex dem. Reeves v. Topping , 1 Wend. 388 ( 1828 )

By the Court,

Woodworth, J.

It appears to me, that the material question to be considered in this case is, whether, in order to constitute a forfeiture, there must be both a refusal to pay the debts, and proof that the grantor was put to costs, trouble or expense. The remaining questions are not attended with difficulty. In the first place, here was a debt claimed to be due from the grantor, which was disputed and payment refused. It cannot be the fair construction of the covenant, to deny the right of questioning the justice of the demand; consequently, the grantee had a right to insist that the demand be established. The parties selected the forum, and submitted to arbitrators. They adjudged the note to be a valid existing demand, to the amount of $650. After this was done, the grantee, according to the plain intent of the covenant, ought to have paid ; for it was no longer competent to deny the validity of the debt. It was not pretended that payment was then, or at any subsequent period made. If this had been relied on, it was the duty of the grantee, or those who represented him, to have established the fact; but they have not done so. Here, then, so far as depended on a refusal or neglect to pay, the condition was broken. The lessor had, then, his election, either to insist on a forfeiture, (provided non-payment merely was a sufficient ground,) or to waive that remedy until an attempt was made to compel payment, against the grantee by process of law, founded on the award. The latter was elected, and judgment recovered. No execution appears to have been issued. Why there were no further proceedings after judgment, is not stated : nor is it material; for the neglect or refusal to pay, which existed at the time the award was made, continued when the judgment was rendered. The lessor, then, elected to pursue the other remedy, which is the present action. The grantee of the father having conveyed to the defendant, the suit is necessarily against him. If enough has been shewn to eiltitle the lessor to recover, had the first grantee 'continued in possession, it is sufficient as against the defendant. He succeeded to the rights of his grantor, and no more. He represents him ; and for the purpose of this suit, stands in his place. In law, there is a privity of estate between them ; and if there has been a forfeiture, it cannot be defeated by a transmission of the title from one to the other. This was an estate upon condition. It cannot be urged that it is even a hard case against the defendant; for he purchased with full knowledge of the condition ; or, if not, it behoved him to inquire and examine the title before he purchased. Neither is there any doubt, that on a covenant for the grantor to enter for condition broken, his heir, after the death of his ancestor, may avail himself of the covenant, although not expressly named. The doctrine is laid down in Cruise, tit. Estate on Cond. ch. 1, s. 17, Bacon, til, Cond. E.

Having thus disposed of the minor questions, I. will briefly consider the legal effect and operation of the covenant inserted in the deed. It will be perceived, that according to the view taken, there has been a neglect or refusal to pay, and consequently the question is narrowed down to this: whether it was also necessary to have shewn the further fact, that the grantor had been put to costs, trouble or expense 2 If this be indispensable, there has been no forfeiture; for it is not alleged, that a demand of any kind was ever made on the father. In courts of law, it is a well settled rule in the construction of covenants of this description, to lean against that interpretation which creates a forfeiture, if admissible from the words of the instrument. To give effect to this rule, the whole instrument must be considered, as well as the particular clause relied on. On looking at the deed, it is evident the grantor intended that the grantee should hold the estate, if he paid the debts and supported the grantor in the manner stipulated. On the supposition that the word “ and” is to be understood as a copulative, and not a disjunctive, then it follows, that in addition to the neglect or refusal to pay, tire grantor must have been put to costs, trouble and expense. This part of the condition was probably inserted, to guard against the anxiety and vexation that a law suit might occasion to a person enfeebled by age and infirmities. .If it be so, this part seems to apply to the grantor personally, and for his protection merely, and therefore ceased to operate after his death. His representatives do not, appear to be within its provisions; that is, it cannot be construed so as to require that they, also, should be put to costs, before the question of forfeiture can arise. If, then, after the death of the grantor, this clause no longer formed a part of the condition, what is its effect as to the residue 1 Is the residue of the condition of no avail, so that the grantee holds the estate absolutely, and nothing remains but a covenant to pay the debts? This interpretation would annul, what, to say the least, was declared to be a part of the condition upon which the estate was to depend. I incline to the opinion, that in order to give effect to the whole, the construction is this, that to create a forfeiture during the life of the grantor, two contingencies must happen ; 1. There must be a neglect or refusal to pay, and, 2. The grantor must be put to cost. After the death of the grantor, the latter event becoming impossible, the former condition alone remained; and, consequently, on its being shew that the grantee neglected, or refused to pay, the heirs of the grantor were entitled to enter. During the life of the grantor, it will be admitted, that one of the contingencies singly would give no- right of action : both must concur. From this view of the subject it follows, that as the condition guards against costs, and at the death of the grantor the other only remained in force, and there being a breach as to that, the plaintiff is entitled to recover.

But if I am in error as to the construction given, then the question arises, whether the word “ and” is not used in the sense of “ or,” thus putting the forfeiture on either of these grounds, viz. refusal to pay, or being put to costs, or in not affording a maintenance. It is well settled at the present day, although for a long time a vexata queslio in England, that the grammatical sense is not to be adhered to, either in a will or deed, where a contrary intent is apparent. The case of Jackson v. Blanchan, (6 Johns. R. 54,) where the authorities are reviewed, seems to be decisive on this point. The case arose on a will, but the authorities cited shew that the principle applies equally to deeds. In Wright v. Kemp, (3 D. & E. 470,) the question came up on a surrender of copyhold premises. Lord Kenyon observed, that in deeds, sertain legal phrases must be used, to create certain estates, but beyond that he would say with Lord Hardwicke, that there is no magic in particular words, further than as they show the intention of the parties. Ashurst, justice, says, “We must collect the intention of the parties in deeds, as well as in wills, to give effect to which, the word 6 or’ may in both cases be equally construed into 6 and.’ ” There being, then, no doubt that the word “ and” is not confined to the grammatical sense, but may be read as “or,” so as to put the right of entry in the disjunctive, it only remains to consider whether the plain intent of the grantor was not, that it should be so considered. I think this is manifest from the whole instrument. The recital shows the moving cause, that the debts should be honestly paid, and the grantor maintained. To enable the grantee to do this, the grantor parts with his whole estate, upon condition ; or, in other words, he was willing the grantee should enjoy, provided he would pay the debts and maintain him. Is it not evident, that the grantor intended to secure this object with absolute certainty 1 and if so, that intent might be defeated by following the grammatical sense. Suppose a creditor, holding a promissory note against the grantor, given five years before the execution of the deed : he reposes in confidence until after six years had elapsed, and then calls on the grantor, who, on request, refuses to pay. The creditor concludes not to prosecute, and his debt remains indefinitely unpaid. According to the doctrine contended for, here would be no forfeiture, and yet it cannot be doubted, that it never was the intention, in such a case, that the grantor should not be at liberty to enter for condition broken. Suppose, further, that there were a number of debts known to the grantee, and admitted as valid ; they apply for payment; it is refused, and yet they omit to prosecute for years; did the grantor imagine that, in such an event, there would be no forfeiture 1 If so, provided there were no costs incurred, he would be obliged to see his creditors unpaid, and yet without the power to resume his estate ; and that, too, notwithstanding the consideration was expressly that the grantee should pay. Not satisfied to rely on a covenant of the grantee to pay, he proceeds to convey the estate upon condition. It cannot reasonably be supposed that this primary object was intended to be impaired, by annexing the unimportant, fact that costs must also accrue, but rather, that so particular and jealous was he to insure speedy justice to his creditors, and save himself from all disquietude on the subject, be adds a further condition, that no costs or expense be made. This, I understand, on a fair construction of the deed, to be of itself sufficient, and consequently subjecting the estate to forfeiture, on the breach of either condition.

In this view of the subject, the plaintiff is entitled to judgment.