Ashuelot Nat. Bank v. City of Keene

• Citation: 74 N.H. 148,65 A. 826
• Parties: ASHUELOT NAT. BANK v. CITY OF KEENE.
• Decision Date: 05 February 1907
• Court: Supreme Court of New Hampshire

65 A. 826

74 N.H. 148

ASHUELOT NAT. BANK

v. CITY OF KEENE.

Supreme Court of New Hampshire. Cheshire.

Feb. 5, 1907.

Exceptions from Superior Court, Cheshire County.

Writ of entry for the possession of land by the Ashuelot National Bank against the city of Keene. There was a verdict for defendant, and plaintiff excepted to the denial of a motion for a verdict in its favor and to the verdict for defendant. Judgment for defendant

May 7, 1890, Henry O. Coolidge, then a resident of Keene, made the following proposition to the city: "I will purchase the 'Perry Place,' so called, of the Rev. William O. White, upon the terms agreed upon between said White and myself, and pay him for said premises the sum of $15,500, and convey said real estate to said city by good and sufficient deed, to be by said city forever owned, held, and used for the purpose of erecting and maintaining a public library building thereon, and for utilizing so much thereof as is not used for library purposes for a public park, and for no other purpose whatever. Said city to take possession of said property immediately, and take and enjoy the rents and income therefrom till such reasonable time as the same shall be devoted to the uses aforesaid, provided said city will pay to me during my life, and to my wife, Emily B. Coolidge, during such time as she shall survive me, four per cent. per annum upon said sum of $15,500, payable semi-annually on the first day of July and January of each year during the time aforesaid. I will also pay to said city the sum of $4,500 in money, to be by said city invested and the income therefrom used as the officers of said city may direct, until such time as it may be properly used to defray a portion of the expense of constructing a library building upon the premises aforesaid, for the purchase of books for said library, or for purchasing furniture for said library building when constructed, the same to be used for no other purpose whatever, upon condition that said city will pay me during my life, and to my wife, Emily B. Coolidge, during such time as she shall survive me, four per cent. per annum upon said sum of $4,500, payable semi-annually on the first day of July and January of each year during said term. All the payments aforesaid to be made free of taxes." On the same day the city accepted the foregoing proposition by the following joint resolution: "Resolved by the city councils of the city of Keene, as follows: That said city accept from Henry O. Coolidge his deed of the 'Perry Place,' so called, to be purchased by him of Rev. William O. White for the sum of $15,500, conveying said property to the city for the purpose of erecting and maintaining a public library building thereon and for the purpose of a public park and for no other purpose whatever. That said city also accept from said Coolidge the sum of $4,500, to be invested and eventually used by said city for the purpose of defraying a portion of the expense of constructing said library building, for the purchase of books for said library, or for furnishing said building when constructed, and for no other purpose whatever. And in consideration of said conveyance and the payment of said $4,500, said city hereby agrees to pay to said Coolidge during his life, and to his wife, Emily B. Coolidge, during such time as she shall survive him, four per cent. per annum upon said sums of $15,500 and $4,500, payable on the first day of July and January, agreeably to the terms and conditions of the proposition in writing of even date herewith made by said Coolidge to said city. And the mayor and city treasurer are hereby authorized, empowered, and instructed to execute and deliver to said Henry O. Coolidge, upon receipt of said deed and the payment of said money, the written obligation of the city of Keene to pay to him during his life, and to said Emily B. Coolidge during such time as she shall survive him, the sum of $800 per annum, free from taxes, payable semiannually on the first day of July and January each year." May 12, 1890, Coolidge conveyed the premises to the city by warranty deed containing, after the description of the land, the following: "Provided, however, and this deed is made upon the express condition, that said premises shall be forever held and used for the purpose of erecting and maintaining a public library building thereon and for utilizing so much thereof as is not used for library purposes for a public park, and for no other purpose whatever, said grantee to take and enjoy the rents and income therefrom until such reasonable time as the same shall be devoted to the purposes aforesaid. To have and to hold the said granted premises with all the privileges and appurtenances to the same belonging, to the said grantee and its successors, to their only proper use and benefit forever, subject to said conditions." The city accepted the deed, thereupon took possession of the premises, and has ever since held the same. Coolidge died February 29, 1896, leaving a will in which he made the plaintiff in this action residuary legatee. The will contains no specific reference to the demanded premises. March 17, 1904, a reasonable time having elapsed within which the city should have devoted the realty to the purposes specified in the deed, the plaintiff entered upon the demanded premises for breach of condition and made demand upon the city to deliver up possession, which it refused to do. Emily B. Coolidge, widow of Henry O., is living. There was no waiver by the plaintiff of any right it possessed to enforce a forfeiture. The Perry place, so called, named in the proposition and joint resolution, is the land described in the writ in this action and therein demanded.

Charles H. Hersey, for plaintiff. John E. Allen, for defendant.

BINGHAM, J. The contention of the plaintiff is that the land was conveyed to the city upon the condition that the grantor and his heirs might enter and enforce a forfeiture if the city failed within a reasonable time to devote the property to the purposes specified in the deed, and that as the city has failed in this respect, the plaintiff, as residuary legatee under the will of Mr. Coolidge, can enforce the forfeiture the same as he might have done if living. This contention is based upon the assumption that the land was conveyed subject to a condition subsequent, and upon the legal proposition that a right of entry before breach of condition is an interest in land and assignable. If the land was conveyed upon condition subsequent, it is at least doubtful...