Buckmaster v. Needham

Where a father conveyed to his son, by deed, one third of his farm, upon Which the grantor and grantee then both resided, with a condition thereto annexed, that the deed should be void, in case the grantee should refuse to pay to the grantor thirty dollars each year, if the grantor should call for the same, it was held, that the condition should not be so construed, as to permit the annual payments to be consolidated and demanded together, after the lapse of several years, but that each sum must have been demanded by itself, and at or about the close of the year, for which it was claimed, and that any sum, not so demanded, was waived, or relinquished; — and it not appearing, that any such demand as the case required, was ever in fact made, it was held, that there had been no forfeiture of the estate by the grantee, by reason of the non-payment. And where it appeared, in such case, that the grantee, after residing upon the farm with the grantor for several years, had removed and left the grantor in possession of the whole farm, and afterwards, and while the grantor was thus in possession, executed a mortgage deed to the orators of one third of the farm, and the reason or purpose of the removal did not appear, it was held, that the court would not presume, that the grantor was so in possession claiming title to the whole farm adversely to the grantee, as to avoid the mortgage thus executed, and that, although the possession may have been intended to be adverse to the grantee, yet that this would not affect the validity of the mortgage, unless the mortgagees, at the time of the conveyance to them, had notice of such adverse possession. The ordinary presumption is, that a sole possession by one tenant in common is held in the right of both tenants.

Appeal from the court of chancery. On the fifteenth day of February, 1828, Benjamin Needham, Jr., conveyed to his son, Horace Needham, by deed, for the consideration, as expressed in the deed, of $1000,00, one third of his farm, on which his son then resided with him, with a condition annexed to the deed, in these words; — “ The condition of the above deed is such, that whereas ' the said Benjamin Needham, Jr., the grantor, hath made the above * deed to the said Horace Needham for the express purpose of se- ‘ curing to the said Horace Needham the right of the soil above de- * scribed in said deed, after the decease of the said Benjamin Need- ‘ ham, Jr., and his wife, Alice Needham, and the said Horace ‘ Needham is to have the full possession and enjoyment of the land * described above, by paying annually to the said Benjamin the sum ' of $30,00, or to Alice Needham, wife of the said Benjamin, if she should survive the said Benjamin, if either shall call for the ‘ same, as the case may be : Now if the said Horace Needham, ‘ his heirs, executors, or administrators, shall well and truly pay or ‘ cause to be paid to the said Benjamin, or Alice, each and every ‘ year, as long as either of them shall live, the aforesaid sum of ‘ $30,00, if they, or either of them, shall request the same, then the above deed is good and valid, — otherwise void.” Horace Needham continued to reside upon the farm, with his father, until the year 1835, when he removed therefrom, leaving his father in sole possession of the whole farm, — which he retained until his decease, which was in February, 1839. On the thirtieth day of March, 1837, and while Benjamin Needham, Jr., was in possession of the whole farm, Horace Needham executed and delivered to the orators a mortgage deed of one third of the farm, to secure his indebtedness to them, therein described. Alice Needham, the wife of Benjamin Needham, Jr., named in the condition of the deed to Horace Needham, died some years previous to her husband, and he afterwards married the defendant Lucy Needham, who survived him. The other defendants were heirs of his estate. After the decease of Benjamin Needham, Jr., the commissioners, appointed by the probate court to set out the dower of the widow, Lucy Need-ham, severed one third of the farm, as the property of Horace Needham, and set out the dower in the residue of the farm. The orators prayed, that the defendants might be decreed to pay to them the amount due upon their mortgage, and, in default thereof, be ordered to surrender the possession of the mortgaged premises and be foreclosed of all equity of redemption therein. The substance of the testimony taken and filed by the parties is sufficiently stated in the opinion delivered by the court. The master, to whom it was referred to ascertain and report, whether any sum, and how much, was due from Horace Needham to his father, at the time of his father’s decease, reported, that he decided, that, in order to make the said Horace chargeable for the sum of $30,00 a year, for the use of the premises, that sum should have been annually demanded of him, — and that, no such demand being proved, there was nothing due from the said Horace to the said Benjamin at the time of the said Benjamin’s decease. The master also reported, that the sum due in equity from Horace Need-ham to the orators was $1589,76, and taxed the orator’s costs at $147,10. To this report the defendants filed exceptions ; but the court of chancery accepted the report, and decreed, that the representatives and heirs of Benjamin Needham, Jr., be perpetually enjoined from making any claim to the mortgaged premises, and that they surrender the possession of the premises to the orators forthwith, and that Horace Needham pay to the orators the sum reported by the master to be due in equity, and the costs, on or before the first Tuesday in September, 1849, or be foreclosed of all equity of redemption in the premises. From this decree the defendants appealed. It is the obvious intention-of the grantor, Benjamin Needham, Jr., in the conveyance to his son, to secure to him the ultimate fee in the land, or, in other words, the right of soil, beyond a contingency. It would seem, also, from the whole case, that there was a valuable consideration for this deed. At all events, it was such a deed, as the father had a right to make, and did make. Before the grantee, or his assigns, could be subjected to the payment of the sum of $30,00 annually, reserved by this deed, a clear and specific demand for it must have been made; and in order to keep the claim alive from year to year, the demand must have been made from year to year, or at least it must have been so specifically made, that there could be no mistake on the part of the grantee, or his assigns, that such payment had been demanded. The testimony wholly fails to prove any such demand. Whether there was any sum due, and, if any, how much, were questions of fact, referred to the master; and his decision is conclusive. The deed, under which the complainants claim, is void, having been executed while Benjamin Needham, Jr., was in adverse possession. When a grant is voluntary, subjecting the grantee to no expense, nor liability, and is conditioned to be void upon the non-payment of money, equity will not relieve against a forfeiture occasioned by a refusal to pay the money after express demand. Such is the present case. The grant cost Horace Needham nothing; and he was subjected to no liability by it. It being a deed poll, covenant would not lie upon it; Platt on Cov. 10, 54; 2 Steph. N. P. 1068; neither would debt, nor any personal action; 3 Bl. Com. 232. Ognel’s Case, 4 Co. 48 b. Webb v. Jiggs, 4 M. & S. 113. The only remedy for recovering the stipulated payment was to enforce the forfeiture. The stipulated payment was repeatedly demanded. The evidence shows this directly in several instances. It is true, these were after the possession was relinquished; but the condition required the payment, whether in possession, or not. And the rent was never paid. It is true, cases may be found of relief being granted after a wilful refusal to pay money, where the party was still liable to pay a debt and the security was collateral, — as in the instance of bonds and mortgages ; or where he had paid a consideration, or became liable for one, — as in that of leases, which are usually by indenture, binding the lessee, or purchase by a fine, — or in the instance of devises, where the intent of the testator governs, — though this is only where there is no limitation over. But no case parallel to the present can be found. To grant the relief sought would render it necessary to give it, where the grantee had utterly refused to fulfil the condition until the death of the annuitant had satisfied him, whether it would be to his advantage. 2 Story’s Eq. 1315, 1323. Reynolds v. Pitt, 19 Ves. 134. Hill v. Barclay, 18 Ves. 56. Lloyd v. Collett, 4 Ves. 689. Bracebridge v. Buclcley, 2 Price 200. Rolfe v. Harris, 2 Price 212, note.