Harvey v. Harvey

• Decision Date: 06 December 1904
• Citation: 59 A. 621,73 N.H. 1065
• Parties: HARVEY v. HARVEY et al.
• Court: New Hampshire Supreme Court

59 A. 621

73 N.H. 1065

HARVEY

v. HARVEY et al.

Supreme Court of New Hampshire. Rockingham.

Dec. 6, 1904.

Suit by Nathaniel D. Harvey against Matthew Harvey and another for the construction of a deed dated December 3, 1900, running from Matthew J. Harvey to the plaintiff, his heirs and assigns, in the ordinary form of a warranty deed, and containing, after the description and before the habendum, the following: "This deed is made on the express condition that no building or other structure, for the space of twenty-five years from this date, shall be built or placed upon said lot within twenty feet of the northerly side line of said Orchard street, and for the same space of time no mercantile establishment, or factory, or livery stable shall be placed upon said lot. And said Nathaniel D. Harvey shall not sell or convey said lot, with buildings thereon or otherwise, to any person or persons whatsoever, but keep it to build a home on for himself, wife, and his descendants as long as any shall remain; when they cease, then to go to John M. Harvey and Matthew Harvey, their heirs and assigns forever; and in case of a violation by said grantee, or his heirs or assigns, of any of these restrictions or reservations, said land, together with all the improvements thereon, shall revert to and become the property of the grantor and his heirs, and this deed shall be void; otherwise to remain in full force and value." The plaintiff has erected on the lot a dwelling house, in which he now resides with his wife and children. He desires to borrow money upon a mortgage of the premises for the purpose of paying outstanding indebtedness incurred by him in building, but is unable to do so because of the defendants' claim that he does not own the premises in fee, and that, if he attempts to convey the property, it will revert to them. The defendants, Matthew and John Harvey, are sons of the plaintiff's deceased grantor; the former being residuary legatee under his father's will.

At the request of the parties, and upon their agreement as to the facts, the following questions of law were reserved: "(1) Is the condition relating to the selling and conveying of said lot invalid and unlawful, and of no binding force or effect? (2) Does the lot of land described in the deed belong to the plaintiff in fee simple?" Bill dismissed.

Page & Bartlett, for plaintiff.

Eastman & Hollls, for defendants.

PARSONS, C. J. The substance of the plaintiff's bill is a request for advice as to the character and extent of his title under the deed of Matthew J. Harvey to him. The questions raised are as to the validity of a condition or restriction in the deed against any sale or conveyance of the premises by the plaintiff, and whether John M. Harvey and Matthew Harvey have any title under the deed. In short, the plaintiff desires the court to inform him whether, if he makes a mortgage of the premises, he will lose the premises, and, if not, whether such mortgage will convey the whole title. That the parties intended that the grantee should be without power to sell the premises is clear from the language of the deed, which expressly provides that "said Nathaniel D. Harvey shall not sell or convey said lot, * * * but keep it to build a home on for himself, wife, and his descendants as long as any shall remain." The purpose of the parties being clearly expressed, the only question is whether that purpose is one which the law directly forbids, or refuses to carry out because of some defect in the manner in which the parties have undertaken to effectuate their purpose.

The first matter to be considered is whether these questions are so presented that the court is authorized to decide them. Except in the case of trustees, who are not required to incur risk in the management of a trust fund, questions of legal right are not ordinarily adjudicated until it becomes necessary to decide them in proceedings instituted for the redress of wrongs. Greeley v. Nashua, 62 N. H. 166, 167. The power of the court, at common law, to advise parties as to their rights and duties, is limited to the administration of property held in a fiduciary capacity. Drake v. True, 72 N. H. 322, 56 Atl. 749; Bailey v. McIntire, 71 N. H. 329, 52 Atl. 440: Ellis v. Aldrich, 70 N. H. 219. 222, 47 Atl. 95: Gafney v. Kenison, 64 N. H. 354, 10 Atl. 706. The parties appearing in the cause...