Lewis v. Lewis

• Decision Date: 09 April 1902
• Citation: 74 Conn. 630,51 A. 854
• Court: Connecticut Supreme Court
• Parties: LEWIS v. LEWIS et al.

51 A. 854

74 Conn. 630

LEWIS

v. LEWIS et al.

Supreme Court of Errors of Connecticut.

April 9, 1902.

Appeal from superior court, Middlesex county; William T. Elmer, Judge.

Suit by John S.' Lewis against William I. Lewis and others. From a judgment for defendants, plaintiff appeals. Reversed.

The allegations of the complaint material to this appeal are: "(1) On August 28, 1867, John Lewis, of the town of Westbrook, Connecticut, owned and possessed a certain tract of land in said town of Westbrook, with the buildings thereon, which said tract is described in the exhibit hereto annexed. (2) On said day said John Lewis, by deed, a copy of which, marked 'Exhibit A,' is hereto annexed, and made a part of this complaint, conveyed to Henry C. Lewis an estate for his life, and to the plaintiff a further estate for his life, beginning at the death of said Henry C. Lewis, in said land, for the considerations therein named, all of which will more fully appear from said deed. (3) On said day said Henry C. Lewis took possession of the premises described in said exhibit, and began to support said John Lewis according to the terms of said deed, and continued to do so until on or about October 1, 1870, when said John Lewis voluntarily departed from said premises, and never returned thereto or made entry thereon. (4) Said Henry C. Lewis and the plaintiff continuously occupied the premises described in said Exhibit A from said August 28, 1867, until July 10, 1871. (5) On March 10, 1871, said John Lewis sold and conveyed to the defendant William I. Lewis, for a valuable consideration, all the land owned by him in said Middlesex county. (6) On July 10, 1871, said John S. Lewis sold and conveyed, for the consideration of $4,000, his interest in said premises to the defendant William I. Lewis, who immediately entered thereon under such conveyance, and at all times thereafter until March 4, 1878, remained in possession of the same under such conveyance. (7) On March 4, 1878, the defendant William I. Lewis conveyed the said premises to Charles H. Lewis, who on March 5, 1878, conveyed the same to the defendant Isadora I. Lewis, the wife of said William I. Lewis; and said William I. Lewis and his said wife have ever since remained in possession of the whole of said premises, except the small portion thereof mentioned in paragraph 13. (8) On October 2, 1871, said John Lewis died. (9) Said John Lewis, by his will, duly proved and approved, devised to the defendant William I. Lewis all his estate situated in said Middlesex county. (10) On April 13, 1898, said Henry C. Lewis died; but the defendants have continued to keep possession of said premises, depriving the plaintiff of the rents and profits. * * * (13) Chloe H. Yale and Jennie H. Hall, both of Meriden, Conn., and John S. Winship and John Leetch, both of Washington, D. C, each claim to have an interest in small portions of said premises, under deeds from the defendants William I. Lewis and wife." The consideration clause in the deed (Exhibit A) is as follows: "For and in consideration of the things herein specified to be performed and done by Henry C. Lewis, of the town of Essex, in the county and state aforesaid, and in case of the death of the said Henry C. Lewis previous to my decease, then the said acts and things are to be done and performed by his lawful heirs, viz.: My board and washing for and during my natural life. Said board shall be deemed to include suitable food or diet, both in sickness and in health, during the whole period of my life, and when in health at the table of the family in the house where I now reside, and in sickness in my room or rooms which I reserve for my private use in said dwelling house. And in further consideration that the said Henry C. Lewis shall, without unnecessary delay, remove to and occupy with his family the dwelling house herein conveyed, and shall continue to do so during the whole of my natural life." Following the description of the premises conveyed are the words: "Reserving to myself, for my own private use, such room or rooms as may be suitable and convenient for me to live in, in the dwelling house I now occupy on said premises. Also I reserve the right and privilege of using such portion of the barns and other outbuildings as may be necessary for the purpose of storing hay or other produce from my land not herein conveyed." Following these reservations, and some statements as to fishing privileges and existing incumbrances, is this language, including the habendum: "And it is further a part of the consideration for which this conveyance is made that the said Henry C. Lewis or his son John S. Lewis shall not sell or in any manner convey to others any part or portion of said premises, nor shall it be done by any guardian or trustee of said minor son, but they shall live on and occupy said premises during their natural lives. To have and to hold the above granted and bargained premises, with the appurtenances thereof, unto the said Henry C. Lewis and his son John I. Lewis for and during their natural lives, and at their decease to their heirs and assigns forever, to and for their proper use and behoof, subject to all the covenants, limitations, and requirements herein contained." The remainder of the deed is in the usual terms of a warranty deed, ending with the words, "Free from all incumbrances whatsoever, otherwise than is mentioned in this deed."

Henry C. White and Edward L. Clark, Jr., for appellant.

Lewis E. Stanton and Frank D. Haines, for appellees William I. Lewis and others.

Hugh M. Alcorn, for appellees Chloe H. Yale and others.

PRENTICE, J. (after stating the facts). The defendants in this case, other than William I. Lewis, hold under him. It is not claimed that they have any other or greater rights than he, in whose shoes they stand, has. For convenience of expression, therefore, he will hereinafter be spoken of as the "defendant." The deed in question confessedly gave to the grantees who took under it estates upon express conditions. The conditions are clearly conditions subsequent. As between conditions precedent and subsequent, the law favors conditions subsequent. 2 Washb. Real Prop. (6th Ed.) § 941. The language of the deed is appropriate for the creation of an estate in prassenti. Rogan v. Walker, 1 Wis. 527; Finlay v. King, 3 Pet. 346, 7 L. Ed. 701. Washburn states the rule which has been generally accepted as the correct one as follows: "If the act or condition required do not necessarily precede the vesting of the estate, but may accompany or follow it, and if the act may as well be done after as before the vesting of the estate, or if, from the nature of the act to be performed, and the time required for its performance, it is evidently the intention of the parties that the estate shall vest and the grantee perform the act after taking possession, then the condition is subsequent." 2 Washb. Real Prop. (6th Ed.) § 941; Tied. Real Prop. 273; 6 Am. & Eng. Enc. Law, 503; Underhill v. Railroad Co., 20 Barb. 455. Applying this rule to the provisions of the deed in question, the nature of the conditions becomes unmistakable. All the authorities agree that the intention of the parties to the deed, as gathered from it and the existing facts, furnishes the test by which the nature of a condition therein is to be determined. 2 Washb. Real Prop. (6th Ed.) § 941; 4 Kent, Comm....