Scovill v. McMahon

• Decision Date: 21 November 1892
• Citation: 62 Conn. 378,26 A. 479
• Court: Connecticut Supreme Court
• Parties: SCOVILL et al. v. McMAHON.

26 A. 479

62 Conn. 378

SCOVILL et al.

v. McMAHON.

Supreme Court of Errors of Connecticut.

Nov. 21, 1892.

Appeal from superior court, New Haven county; J. M. Hall, Judge.

Suit by Henry W. Scovill and another against Lawrence S. McMahon, as bishop of Hartford, to recover a certain trust fund. From a judgment for defendant, plaintiffs appeal. Affirmed.

L. F. Burpee and G. D. Watrous, for appellants.

W. W. Hyde and F. E. Hyde, for appellee.

HALL, J. The plaintiffs by this action seek to recover the whole or a part of the sum of $12,500, held by the defendant under a judgment of the superior court. The material facts alleged in the complaint, to which the defendant demurs, are as follows: The plaintiffs represent the heirs of one J. M. L. Scovill, who, in 1847, by warranty deed with the usual covenants, conveyed to William Tyler, bishop of the Roman Catholic diocese of Hartford, his successors and assigns, in trust for the Roman Catholics of Wuterbury, a tract of land in Waterbury, containing one acre. The deed contained the following provision: "Provided, and this deed is upon the condition, that the above-described premises are to be used and occupied for the purpose of a burying ground, and no other purpose; and that the grantee, his successors and assigns, shall at all times maintain, build, and keep a good and sufficient fence around said premises." Since said date this land has been used and occupied by the grantees as a cemetery for the burial of Roman Catholics, until the removal of all. the bodies and monuments by the city of Waterbury under the legislative act hereafter referred to. No interments have been made in this land since 1880. No fence has ever been built around the premises. In 1882, by a special act of the legislature, the preamble of which recited that this and other old cemeteries within the city of Waterbury had long ceased to be used as places of interment; that they had been in a neglected condition; and that, from the growth of the city and from other causes, they were no longer proper places for cemeteries, it was provided that from and after the date of the act it should be unlawful to make any interment in said burying ground. This act further provided that, upon the petition of the city of Waterbury, the superior court might order the removal by the city of the bodies and monuments from the cemetery; and, after prescribing the manner of ascertaining the owners of the land and the value of their respective interests therein, provided that, upon payment to the owners of the sums decreed by court as the value of their respective interests, the burial ground should become a public park in the city of Waterbury, and that the same might be used for any suitable public building or other public purpose. Special Laws Conn. 677. After a hearing before a committee appointed upon the petition of the city of Waterbury under this act, it was decreed by the superior court. January 2, 1891, that when the city of Waterbury should pay to the defendant the sum of $12,500, said sum having been found to be the value of the land in question, and should remove the remaining bodies and monuments from the burying ground, the same should become a public parkin said city, and be used for any suitable public building or other public purpose. By the judgment of the superior court this sum of $12,500 was to be held by Bishop McMahon "subject to all trusts, claims, and interests which are or may be found to be created and reserved in the deed of J. M. L. Scovill." The heirs of J. M. L. Scovill were represented at the hearing before said committee, but no claim was then made in their behalf. On the 30th of January, 1891, Henry W. Scovill, one of the plaintiffs, in behalf of said heirs, made entry upon the land for condition broken. The city of Waterbury has complied with the requirements of the act referred to, and on the 18th of May, 1891, paid to the defendant the sum of $12,500, which is held by him in conformity to the terms of said judgment.

By their appeal from the decision of the superior court sustaining the defendant's demurrer to the complaint the plaintiffs claim that there has been a breach of the condition of the deed of Scovill to Tyler, by which the title to the land described in the deed has become forfeited, and that they are thereby entitled to the whole of the sum in the hands of the defendant, as that sum represents the value of the land; that, if these facts do not show a breach of the condition of the deed revesting the title in the plaintiffs, they are still entitled to some part of the fund in the defendant's hands as a compensation for the loss of the right which they possess to re-enter upon condition broken, and which right or interest in the land they say has been taken from them by act of the legislature without compensation. Of the alleged breaches of condition there are but two which we need to consider: First, that which it is claimed resulted from the failure to maintain a fence; second, that which it is said was effected by the act of the legislature prohibiting the use of the land as a place of burial, and by the removal of the bodies and monuments by the city pursuant to the act. The alleged right to re-enter for failure to maintain a fence accrued about 45 years ago, as the record shows that the grantees have never built a fence around the premises. During this period of 45 years there has apparently been no demand made, either by the grantor or his heirs, for the erection of a fence. During this period the grantor and his heirs have silently permitted interments to be made and monuments to be erected, until this tract was filled with graves. Indeed, the silence of the grantor and his heirs respecting their claimed right to re-enter for failure to erect a fence seems never to have been broken until the sum of $12,500 was placed in the defendant's hands by order of the court. If the clause in question were to be construed as creating a condition subsequent, we think upon these facts, the plaintiffs may be justly held either to have waived their right or to have lost it by their own laches. A right of entry may be so waived and lost. 2 Washb. Real Prop. 18; Guild v. Richards, 16 Gray, 309; Andrews v. Senter, 32 Me. 394; Ludlow v. Railroad Co., 12 Barb. 440; Merrifield v. Cobleigh, 4 dish. 178.

But we are not willing to be understood as assenting to the plaintiff's claim that the provision requiring the erection of a fence constitutes a condition subsequent. The law is well established that such conditions are not favored, and are created only by express terms or by clear implication; that courts will always construe clauses in deeds as covenants, rather than conditions, if they can reasonably do so; that, if it be doubtful whether a clause in a deed imports a condition or a covenant, the latter construction will be adopted; and that, though apt words for the creation of a condition are employed, yet, in the absence of an express provision for reentry or forfeiture, the court, from the nature of the acts to be performed or prohibited by the language of the deed, from the relation and situation of the parties, and from the entire instrument, will determine the real in tention of the parties. 2 Washb. Real Prop. 4 et seq.; Post v. Weil, 115 N....