FUTURE INTERESTS

PART I

CLASSIFICATION OF FUTURE INTERESTS

CHAPTER I

RIGHTS OF ENTRY FOR CONDITION BROKEN

SECTION 1.-VALIDITY AND CONSTRUCTION

GRAY v. BLANCHARD.

(Supreme Judicial Court of Massachusetts, 1829. 8 Pick. 284.) Writ of entry sur disseisin to recover possession of a parcel of land and a dwellinghouse thereon, situate in Atkinson street, in Boston. Trial before Wilde, J.

In 1801, the demandant owned a tract of land bounding easterly eighty feet on Atkinson street, and erected on the northern portion of it a dwellinghouse facing to the south with the eastern end fronting

on the street.

In 1802, he conveyed to Willett and Bullard a part of the tract bounded northerly by the parcel upon which he had erected the house, and measuring fifty feet on the street.

In March, 1803, he conveyed to his sister, Mrs. Haile Rand, the northerly part of the tract, describing it as bounded southerly by land of Willett and Bullard, and easterly on the street, there measuring thirty

feet.

Willett and Bullard, having erected a dwellinghouse, under the directions of the demandant, on the northern part of the land sold to them, reconveyed such part to the demandant, describing it as bounded east on the street, twenty-eight feet, west on land of Dorr, twentyeight feet, and north on land of the demandant.

On the 28th of August, 1804, the demandant conveyed the tract now in question to William Blanchard, describing it as bounded east on the KALES FUT.INT.-1

street, twenty-seven feet, south on land of Dillaway, west on land of Dorr, twenty-seven feet, and north on other land of the demandant, being part of the land purchased of Willett and Bullard; habendum in fee simple; "provided, however, this conveyance is upon the condition, that no windows shall be placed in the north wall of the house aforesaid, or of any house to be erected on the premises, within thirty years from the date hereof, and also upon the condition, that no building shall be erected upon the strip of land at the east end of said house for the space of thirty years from the date hereof, but during said term said strip of land, measuring twenty-seven feet on Atkinson street, and three feet three inches in depth from said street, shall remain with、out any incumbrances except the fences as they now stand.—

On the 24th of October, 1821, William Blanchard conveyed the same land to the tenant, "subject to the terms and conditions mentioned and contained in the original deed from said Benjamin Gray to said William Blanchard, reference being thereto had."

On November 1, 1821, the tenant mortgaged the land to Jonathan Amory, by a deed in which the conditions above quoted are recited at length.

It was proved, that the house on the land in question, is a brick house of about forty feet in length and eighteen in width, the north wall being towards the house conveyed to Mrs. Rand, and that at the time of the conveyance to William Blanchard, the north wall was without any aperture except one doorway; and that in 1822 the tenant caused two windows to be made in this wall, which have ever since remained there. The demandant proved an entry upon the demanded premises for breach of condition.

The tenant gave in evidence a deed of Mrs. Rand, dated in 1813, whereby she conveyed her land to George Blanchard, describing it as bounded southerly on land of William Blanchard. But the demandant claims to be the owner of a strip of land one foot wide, lying between the demanded premises and the land conveyed by him to Mrs. Rand.

It was admitted that the demandant, at the time when he gave the deed to William Blanchard, had no interest in the house and land conveyed to Mrs. Rand, and has never since had any, and that none of his family have had any interest therein since his sister made the conveyance to George Blanchard.

The jury were instructed to find a verdict for the demandant; which was to be subject to the opinion of the Court.

PARKER, C. J. The tenant moves to have the verdict set aside, on several grounds.

First, because the words in the deed do not import a condition, the breach of which will work a forfeiture of the estate, but only a covenant, entitling the demandant to his action for damages. But this is untenable. The words are apt to create a condition; there is no ambiguity, no room for construction; and they cannot be distorted so as to convey a different sense from that which was palpably the intent of

the parties. The word "provided," alone, may constitute a condition, but here the very term is used which is often implied from the use of other terms. "This conveyance is upon the condition," can mean nothing more nor less, than their natural import; and we cannot help the folly of parties who consent to take estates upon onerous conditions, by converting conditions into covenants. It would be quite as well to say that the words mean nothing, and so ought to be rejected altogether. No authority has been cited which bears out this suggestion; indeed the authorities are all against it.

It is then said, that this condition is void, being idle and useless, and so against the policy of the law. But who shall judge over the head of the grantor, that this condition is idle and useless? At the time of his conveyance to William Blanchard, his sister owned, by conveyance from him, the next adjoining lot to the northward, with the front of her dwellinghouse towards this north wall. He probably intended to protect this estate from being overlooked from windows in that wall, the house in question having been built with this dead wall under his direction. This may have been important to the enjoyment and the value of his sister's estate; and there seems to be no good reason why, in disposing of the demanded premises, he should not provide for her accommodation. Those who hold under her may have considered this restriction on the estate as an inducement to purchase. The grantee was not surprised into the bargain, nor those who hold under him, the condition being inserted in all the deeds; and if the estate was of less value on account of this restriction, they were compensated in the price; at any rate, it was a voluntary bargain, and if they did not choose to take the estate cum onere, they should have rejected it altogether. Every proprietor of an estate has jus disponendi. He may grant it with or without condition; and if he grants it upon condition directly, the estate of the grantee will terminate with the breach of the condition, if the grantor chooses to avail himself of the forfeiture and enter for the breach.1

1 Accord: Littleton, §§ 325, 326, and cases cited in note 5, infra, p. 7. The same ruling occurs where a term for years is assigned subject to a condition subsequent and right of re-entry for condition broken, so that no reversion remains in the assignor. Doe d. Freeman v. Bateman, 2 B. & Ald. 168.

A fortiori, where there is a reversion in the creator of a particular estate, the interest created may be made subject to forfeiture in favor of the reversioner for the breach of a condition subsequent.

NOTE ON CONDITIONS IN LAW.-Lit. § 378. Estates which men have upon condition in law, are such estates which have a condition by the law to them annexed, albeit that it be not specified in writing. As if a man grant by his deed to another the office of parkership of a park, to have and occupy the same office for term of his life, the estate which he hath in the office is upon condition in law, to wit, that the parker shall well and lawfully keep the park, and shall do that which to such office belongeth to do, or otherwise it shall be lawful to the grantor and his heirs to oust him, and to grant it to another if he will, &c. And such condition as is intended by the law to be annexed to anything, is as strong, as if the condition were put in writing.

Co. Lit. 233 b. As to conditions in law, you shall understand they be of

It is next argued, that this condition is void, as being repugnant to the grant, restraining the beneficial use of the estate. Without doubt, conditions of the nature supposed are void, and the estate is absolute; but the law very clearly defines this rule, and the cases cited to support this position show the limitation and the exceptions to the rule.2 A lease for two years, provided the lessee occupy but one; this is repugnant and senseless, and the proviso shall be rejected. Scovell v. Cabell, Cro. Eliz. 107.

Grant of a house upon condition not to meddle with the shops, the shops being part of the house; this is of the same nature. Hob. 170.

So a grant of land or rents in fee simple, upon condition that the grantee shall not alien, or that his widow shall not have dower; these conditions are void, as clearly repugnant to the grant; Shep. Touch.

two natures, that is to say, by the common law, and by Statute. And those by the common law are of two natures, that is to say, the one is founded upon skill and confidence, the other without skill or confidence: upon skill and confidence, as here the office of parkership, and other offices in the next section mentioned, and the like.

Touching conditions in law without skill, &c., some be by the common law and some by the statute. By the common law as to every estate of tenant by the curtesy, tenant in tail after possibility of issue extinct, tenant in dower, tenant for life, tenant for years, tenant by statute merchant or staple, tenant by elegit, guardian, &c., there is a condition in law secretly annexed to their estates, that if they alien in fee, &c., that he in the reversion or remainder may enter, et sic de similibus, or if they claim a greater estate in court of record, and the like.

IN CASE OF LEASEHOLDS-IMPLIED CONDITION THAT A TENANT SHALL NOT REPUDIATE THE TENANCY AND CLAIM TO HOLD AGAINST THE LANDLORD.-It is clear that if a tenant not only disclaims to hold under his landlord, but acknowledges another as such and pays rent to him, the former may, without any formality, elect to forfeit the tenancy and sue for possession in a forcible detainer suit against the tenant and the new landlord whom he has acknowledged. Ballance v. Fortier, 3 Gilm. (Ill.) 291; Fortier v. Ballance, 5 Gilm. (Ill.) 41; McCartney. Hunt, 16 Ill. 76; Cox v. Cunningham, 77 Ill. 545; Doty v. Burdick, 83 I. 473; Wall v. Goodenough, 16 Ill. 415 (semble). It seems, also, that the giving up of possession by a tenant to a stranger who takes on assignment or sublease from the tenant, but claims to hold under a paramount title is a sufficient ground for the immediate forfeiture of the original lease. Upon such forfeiture the landlord may at once maintain forcible detainer against the stranger. Hardin v. Forsythe, 99 Ill. 312; Thomasson v. Wilson, 146 Ill. 384, 34 N. E. 432. Even a mere oral disclaimer by the tenant, coupled with the claim of title in himself, is, in this state, a sufficient ground of forfeiture. Fusselman v. Worthington, 14 Ill. 135; McGinnis v. Fernandes, 126 Ill. 228, 19 N. E. 44; Brown v. Keller, 32 Ill. 151, 83 Am. Dec. 258; Herrell v. Sizeland, 81 Ill. 457; Wood v. Morton, 11 Ill. 547. The attempt by a tenant to transfer more than he has operates as an assignment of his interest. Turner v. Hause, 199 Ill. 464, 65 N. E. 445. Quære: Does such a conveyance by itself furnish a ground of forfeiture? It has been said that any conveyance by a tenant at sufferance will forfeit the tenancy. Proctor v. Tows, 115 Ill. 138, 150, 3 N. E. 569. The owner, however, is always entitled to possession as against a tenant at sufferance. For the form and effect of statutes making every breach of a covenant in a lease a ground of forfeiture, see Kales, Future Interests, §§ 24, 25.

2 See Newkerk v. Newkerk, 2 Caines (N. Y.) 345; McWilliams v. Nisly, 2 Serg. & R. (Pa.) 513, 7 Am. Dec. 654; Stockton v. Turner, 7 J. J. Marsh. (Ky.) 192; Hawley v. Northampton, 8 Mass. 37, 5 Am. Dec. 66; Lawrence v. Gifford, 17 Pick. (Mass.) 366.—Rep.