Laberee v. Carleton

Danforth, J.

The only questions involved in this case are raised upon the validity and construction of .the plaintiff’s deed to Myrick Laberee. It is contended that the’ deed is void for want of consideration. In this State, it has been held that, as between the parties to a deed, a consideration is not necessary. Green v. Thomas, 11 Maine, 318.

The question principally argued is, whether the deed conveys a fee simple or conditional.

In Rawson v. Inhabitants of School District No. 5, in Uxbridge, 7 Allen, 125, the principles applicable to conditional deeds are clearly set forth, and the authorities cited and commented upon so fully as to render it unnecessary to go over the ground again. It was there held that conditions subsequent are not favored in law, are not to be raised readily by inference or argument, and only when apt aud sufficient words are used for' that purpose.

It is also a fundamental principle, that a condition is a qualification or restriction annexed to a conveyance. The words must not only be such as of themselves import a condition, but must be so connected with the grant in the deed as to qualify or restrain it. Neither of these requirements appear to be complied with in the deed under consideration. The words relied upon for this purpose are found in the premises, and are as follows: — "In consideration of the conditions to be performed for me and mine, by Myriek Laberee, * * agreeably to the deed of the late Miles La-beree * to me.” It will be seen that the conditions in Miles’ deed are referred to and thereby become a part of this. These conditions are certain stipulations to be performed by Miles, as a condition of his deed, but when incorporated into the plaintiff’s deed, as the reference requires, they become stipulations, to be performed, not by the grantor, but by the grantee, and not as a condition of the deed, but as descriptive of the consideration and nothing more. The meaning of the language would not be changed if it should read, in consideration that Myriek has agreed to perform the stipulations specified. The words are merely descriptive of the consideration for which the deed was given, and do not in any way qualify or limit the conveyance.

It is however contended that admitting these words to refer exclusively to the consideration, still, as no other consideration is named and this is a promise of future service, it thereby becomes a condition to the conveyance.

In the case already cited, pp. 128-129, Bigelow, C. J., says, "it is sometimes said when a deed is made * * * in consideration of an act to be done or service rendered, it will be interpreted a conditional estate. But this is an exception to the general rule, and is confined to cases where the subject matter of the grant is in its nature executory; as of an annuity to be paid for service to be rendered or a privilege to be enjoyed. But ordinarily the failure of the consideration of a grant of land, or the non-fulfilment of the purpose for which a conveyance by deed is made, will not of itself defeat an estate'.” The deed under consideration, being one of an executed grant, comes under the rule and not under the exception. The case cited is much stronger thau the one at bar.

Plaintiff’s counsel contends that this is a question for the jury. The terms of a contract, when in dispute, are to be ascertained by the jury. The construction of it, when ascertained, is always for the Court. Moore v. Holland, 39 Maine, 307; Homans v. Lambert, 21 Maine, 308.

Plaintiff nonsuit.

Appleton, C. J., Davis, Kent, Walton and Dickerson, JJ., concurred.