Bray v. Hussey

• Decision Date: 08 April 1891
• Citation: 22 A. 220,83 Me. 329
• Parties: BRAY v. HUSSEY et al.
• Court: Maine Supreme Court

22 A. 220

83 Me. 329

BRAY

v. HUSSEY et al.

Supreme Judicial Court of Maine.

April 8, 1891.

(Official.)

Report from supreme judicial court, Piscataquis county.

This was a real action. Plea, mil seizin. The plaintiff put in a deed from one Lombard, given in 1854, which, it was admitted, covers the locus, and rested.

The defendant's put in a warranty deed from the plaintiff, dated July 1, 1881, duly recorded, to John Roberts, covering the same premises.

It was admitted that Roberts, the grantee, filed his petition in insolvency, in Piscataquis county, February 12, 1887, and Calvin B. Kittredge was appointed his assignee; that said assignee, under a proper license, sold and conveyed by quitclaim, July 16, 1887, the insolvent's interest in the premises to one Micajah Hudson, who sold and conveyed the same to the defendants on July 27, 1887.

The insolvent, Roberts, mortgaged the same premises February 12, 1887, to Joseph B. Peaks, for $75, to secure the fees, expenses, etc., incident to his proceedings in insolvency. This mortgage was purchased July 9, 1887, by Hudson, who, having taken an assignment of it, transferred it July 27, 1887, to the defendants. Joseph B. Peaks testified that, on September 27, 1887, he went upon the locus at the request of Catherine Bray, the plaintiff, and took possession of the premises, at her request, under a claim of condition broken in her deed to Roberts. It was admitted that the plaintiff was never prevented from, nor interfered with in, pasturing her cows upon the premises in question.

J. B. Peaks, for plaintiff.

Henry Hudson, for defendants.

HASKELL, J. The contention is whether certain words, inserted in a warranty deed between the description and habendum, create a condition subsequent that may work a forfeiture of the grant. The words are:

"Said Catherine Bray [the grantor] reserves the right in the above-described farm to pasture two cows in the pasture or pastures, used as such for the benefit of said Catherine Bray during her life-time; or, if she does not use the pastures as above, said John Roberts [the grantee] is to fit her year's wood up for the stove. Said John Roberts is not to place any incumbrance on said land, or convey the same to any one during the life of said Catherine Bray."

Conditions subsequent are not favored in law, and "an estate on condition cannot be created by deed, except when the terms of the grant will admit of no other reasonable interpretation," (Ayer v. Emery, 14 Allen, 70;) and the grantor's own language must be most strongly construed against him, (Hooper v. Cummings, 45 Me. 359.)

It should be considered, too, that, since the time of Coke, certain appropriate words have been universally understood to create a conditional estate. Co. Litt. Lib. 3, c. 5. These are, "provided," "on condition," "so as." "To every good condition Is required an external form." Shep. Touch. 126.

"In devises a conditional estate may be created by the use of words which declare that it is given or devised for a certain purpose, or with a particular intention. But this rule is applicable only to those grants or gifts which are purely voluntary, and where there is no other consideration moving the grantor or donor Desides the purpose for which the estate is declared to be created. But such words do not make a condition when used in deeds of private persons." Rawson v. Uxbridge, 7 Alien, 128; Labaree v. Carleton, 53 Me. 211; Duke of Norfolk's Case, Dyer, 138&; Portington's Case, 10 Coke, 42a.

Apt words, even, do not always create a conditional grant where the intent of the grantor, as shown by the whole deed, was otherwise. City Mission v. Appleton, 117 Mass....