Little v. Thurston

Appleton, C. J.

This Avas an action on a note, signed by the defendant and one Washington Garland, dated Nov. 4, 1861, and payable to Edtvard T. Little, or order, in one year from date. The ■ consideration for the same Avas a bond of even date, given by said Little to said Garland, for the conveyance to him of a certain lot in Errol, N. IL, to which said Little then had a good title, upon the condition that the notes described therein,, of Avhich the note in suit Avas one, were paid at maturity. The bond to be void if the notes Avere not so paid.

The land, mentioned in the bond, remained in the possession and under the control of the obligor. The notes of the obligee not being paid at maturity, the obligor conveyed away the land by deed. His administrator noAv seeks to enforce the notes referred to in the bond giA’en to Garland, notAvithstanding his intestate had, by deed, incapacitated himself from making the conveyance of the land stipulated by the bond to be conveyed.

The obligor, in a bond like the one in this case, has a right to require a strict compliance with its conditions on the part of the obligee, and, in case of non-compliance thereAvith, to enforce a forfeiture. The obligee, by a failure on his part, does not necessarily put an end to the contract and make it void. He only gives the obligor a right to terminate it if he choose. Or he may waive a strict compliance and continue it in force. Thus he may waive a forfeiture by receiving or enforcing payment of the notes of the obligee, and if he does so, the bond is held as still valid and obligatory.

In the present case the obligor, Edward T. Little, conveyed away *88 the land upon the failure of Garland to pay at maturity the notes, the consideration for which was his bond. This must be deemed an election, on his part, to insist upon a forfeiture, as he had a right to do. The bond, then, ceasing to be obligatory, there is no remaining consideration for the notes mentioned therein, and they cannot be enforced.

These views seem to be in accordance with the uniform current of authority, as well as with the equities of the case. In Winter v. Livingston, 13 Johns. 54 , the facts were substantially the same as in the case at bar. In giving their opinion the Court say: “ The notes in question were given as the consideration for the reconveyance of the land by Winter to Livingston, according to the covenant entered into between them. By this covenant, however, it was provided that the agreement was to be void, unless Livingston paid his notes as they fell due. He did not pay them; and, of course, the agreement was void, .if Winter elected so to consider it. And the case fully shows that he availed himself of this forfeiture, for he went on and sold the land for his exclusive benefit, and Livingston has, therefore, received nothing for his notes; and Winter has a complete and perfect title to the lands.” The nonsuit of the plaintiff, who sought to recover the amount due on the notes, was sustained. In Frost v. Frost, 2 Fairf. 239, this court held that after taking the .land, the plaintiff could not enforce further payments, when he availed himself of a forfeiture arising for the defendant’s neglect. In Manning v. Brown, 10 Maine, 49, the defendant relied on the case of Winter v. Livingston, but the court distinguished that case from the one then under consideration. “ Manning,” remarks Parris, J., “ did not elect to consider the agreement void. He did not enter into or sell the land, but permitted the defendant to retain the undisturbed possession. He has not, therefore, availed himself of the forfeiture, but, by enforcing the payment of the notes, has waived it.” This case cannot be regarded as adverse to the defense. In Chandler v. Marsh, 4 Vermont, 161, Hutchinson, C. J., in delivering the opinion of the court, says, “ The bond was the security for the title when the full payment should be made. *89 The plaintiff has his remedy on each note, when payable, and the defendants cannot take away this right by any neglect of their duty, nor by any act of theirs, short of actual payment. The plaintiff might destroy his right of action by conveying away his title to the land, and rendering himself unable to convey such title to the defendants.”

The plaintiff’s intestate having elected to claim a forfeiture by having conveyed the land, his administrator cannot now enforce the payment of the note in suit. Plaintiff nonsuit.

Kent, Walton, Barrows, and Danforth, JJ., concurred.