Queen City Park Ass'n v. Gale

• Decision Date: 01 November 1938
• Docket Number: 349B
• Citation: 3 A.2d 529,110 Vt. 110
• Parties: QUEEN CITY PARK ASSOCIATION v. FRANCES F. C. GALE
• Court: Vermont Supreme Court

3 A.2d 529

110 Vt. 110

QUEEN CITY PARK ASSOCIATION v. FRANCES F. C. GALE

No. 349B

Supreme Court of Vermont

November 1, 1938

May Term, 1938.

1. Right of Grantor of Land to Claim Forfeiture under Deed Essential to Right to Foreclose---2. Creation of Estate in Fee Simple upon Condition Subsequent---3. Construction of Words "Provided Nevertheless" and "Upon the Following Conditions" in Deed---4. Words of Condition as Working Forfeiture---5. Conditions Subsequent Not Favored---6. Deed Construed as Not Creating Fee upon Condition---7. Covenant Defined---8. Restrictive Agreements Enforceable in Equity---9. Why Enforceable---10. Provisions in Deed Construed as Valid Covenants Enforceable in Equity---11. Remedy Properly Sought in Court of Equity.

1. Plaintiff claiming forfeiture and seeking foreclosure in suit in equity of defendant's interest in land by reason of latter's failure to pay annual assessments as provided by deeds under which she held title, was not entitled to this relief unless language of conveyances gave right to claim forfeiture.

2. An estate in fee simple subject to a condition subsequent is created by any limitation which, in an otherwise effective conveyance of land, creates an estate in fee simple and provides that upon the occurrence of a stated event the conveyor or his successor in interest shall have the power to terminate the estate so created.

3. While words "provided nevertheless" and "upon the following conditions" used in a deed are appropriate to create a condition they do not of necessity create such an estate, but may be construed as expressing simply a covenant or a limitation in trust when the intention of the grantor as manifested by the whole deed, requires such construction.

4. The strongest words of condition in a deed will not work a forfeiture unless they were so intended to operate, and the absence of a clause for reentry may signify that no condition was intended, when its presence may make such intent plain.

5. Conditions subsequent are not favored in law because on breach of such conditions there is a forfeiture and the law is adverse to forfeitures.

6. Where deed contained so-called conditions and restrictions providing for payment to grantor association by grantee or any person holding under him of annual assessments and for forfeiture of specific sum upon violation of any conditions or restrictions contained therein, but no reservation of right to reenter or declare a forfeiture, the estate conveyed was not a fee upon condition and grantor was not entitled to foreclose as against one who held under the grantee and refused to pay such assessments.

7. A covenant is an agreement between two or more persons, entered into by deed, whereby one of the parties promises the performance or nonperformance of certain acts, or that a given state of things does or shall, or does not or shall not exist.

8. Restrictive agreements are enforceable in equity against all those who take the estate with notice of them, although they may not be, strictly speaking, real covenants so as to run with the land or of a nature to create a technical qualification of the title conveyed by the deed.

9. He who takes land with notice of a restriction upon it will not in equity and good conscience be permitted to act in violation of the terms of such restriction.

10. Where deed of land contained so-called conditions and restrictions providing for payment to grantor by grantee and any person holding under him of annual assessments and for forfeiture of specific sum upon violation of any of conditions or restrictions contained therein, and where one holding under such grantee through mesne conveyances not only had constructive notice of such provisions but for some years paid such assessments, held that such provisions were valid covenants and binding in equity as against such person subject to any available defense.

11. Remedy for enforcement of equitable restrictive covenants was properly sought in court of equity, since doctrine respecting such covenants is purely equitable in its nature.

APPEAL IN CHANCERY. Plaintiff brought bill seeking to have court determine and order paid amount due from defendant under provisions of deed from plaintiff to defendant's predecessor in title requiring payment of annual assessments to plaintiff and imposing penalty for noncompliance, and to have interest of defendant adjudged to be forfeited in default of payment. The defendant demurred. Heard on bill and demurrer at the March Term, 1936, Chittenden County, Shields Chancellor. Demurrer sustained and bill dismissed. The plaintiff appealed and filed bill of exceptions. The opinion states the case.

Decree reversed and cause remanded.

Stickney, Sargent & Chase for the plaintiff.

J. Boone Wilson, Charles F. Black, Willsie E. Brisbin and J. A. McNamara for the defendant.

Present: MOULTON, SHERBURNE, BUTTLES and STURTEVANT, JJ., and JEFFORDS, Supr. J.

OPINION

BUTTLES

The plaintiff in this case is a Vermont corporation which formerly owned a tract of land in South Burlington known as Queen City Park. At some time prior to 1885 this tract or a portion thereof was divided into lots, and some of these lots from time to time were sold by the plaintiff to individuals. The propriety and regularity of such sales are not questioned. One such lot known as number 108 was sold and conveyed by the plaintiff to Elisha Allen, and another known as number 107 to A. E. Manum. Through mesne conveyances lot number 107 and five feet from the south side of lot number 108 were conveyed on August 2, 1909, to Nora Truax Gale. It is alleged by the plaintiff that thereafter all interest of Nora A. Gale--presumably meaning the same person previously referred to as Nora Truax Gale--in said lots was decreed by the probate court for the district of Chittenden to Cameron C. Gale, who later acquired title to an additional seven feet off the southerly side of lot number 108, making in all twelve feet, or one-half of said lot number 108 then owned by him. On September 18, 1929, the said probate court decreed said lot number 107 and portion of said lot number 108 to Frances F. C. Gale, the defendant herein.

The original conveyances from the plaintiff and the mesne deeds above referred to purported to be made upon certain conditions and restrictions therein recited. One ground of the demurrer hereinafter referred to is that the plaintiff, in its amended bill of complaint, sets out a deed in full containing these alleged conditions and restrictions, but that said deed purports to be executed by one P. S. Briggs who, so far as appears, was a stranger to defendants' title. The fact appears to be as stated in the demurrer but the original bill of complaint sets forth the alleged conditions and restrictions which were numbered eight and nine respectively together with the statement that the same were contained in the deed given by the plaintiff and in the later mesne deeds in defendant's chain of title. We are also given some information as to the setting of the original conveyances from the quotations from the constitution and by-laws of the plaintiff contained in the amended bill, and the statement that the various committees referred to therein were duly appointed each year and performed their duties.

The eighth and ninth of such alleged conditions and restrictions are set forth in said bill of complaint as follows:

"8th. That the grantee or any person holding under him, shall pay such yearly assessments as may be laid upon the granted premises by the Board of Directors, not exceeding five dollars or less than one dollar per year, within thirty days after the same has been demanded by the Treasurer or Collector of the Association.

"9th. That upon the violation of any of the preceding conditions and restrictions, the grantee or person holding or using under him shall forfeit to the Association the sum of ten dollars and be subject to all damages accruing from such violation."

Prior to and including the year 1933 annual assessments in accordance with article 8 were made and the same were paid upon the Gale lot and half lot by this defendant and her predecessors in title. An assessment was regularly made by the directors of the plaintiff corporation for the year beginning Aug. 23, 1934, in accordance with the constitution and by-laws of the corporation and, so far as appears, within the terms of the provision contained in said deeds. This assessment the defendant refused to pay and thereafter the plaintiff brought its bill of complaint in chancery praying that the court find the amount due from the defendant to the plaintiff by reason of her failure to pay said assessment, that she be ordered to pay such amount together with the costs taxed in this suit, and that in default of such payment being made within a time to be limited by the court all right, title and interest of the defendant in said lands be adjudged and decreed to be forfeited for violation of the conditions and restrictions upon which said lots were conveyed by the plaintiff, and that all right, title and interest of such defendant in said lots has reverted to and become that of the plaintiff. There was also a prayer for other and further relief.

To this complaint the defendant seasonably demurred. The case comes here on an appeal from the decree of the court of chancery sustaining such demurrer and dismissing the bill of complaint.

The plaintiff claims a forfeiture and seeks foreclosure of the defendant's interest in the land so held by her. The plaintiff is not entitled to this relief unless the language of the conveyances gives it the right to claim a forfeiture. It is therefore important to consider the nature of the title conveyed. That it was a fee of some kind is...