Messersmith v. Messersmith

Leonard, Judge,

delivered the opinion of the court.

Without stopping to remark upon the irregularity, occurring in the proceeding, of giving judgment against infants by *372 default, for want of an answer, we proceed at once to dispose of the case upon its merits. Here is an estate in land subject to be divested upon the non-performance of an express condition mentioned in the deed, that “ the grantee should provide for the grantor a good and sufficient maintenance during her natural lifeand the grantee having died intestate without making any provision for her support, she asks the court in the exercise of its equitable jurisdiction to enforce the penalty by directing the deed to be cancelled and the land'to be restored to her. The answer to this is, that a court of equity never lends its aid to enforce forfeiture under any circumstances ; (Livingston v. Tompkins, 4 Johns. Chan. Rep. 415 ;) and as we can not consider this a proceeding at law to recover the possession of the land upon the legal title that would have reverted to the plaintiff upon an entry for the breach of the condition, the judgment must be reversed and the petition dismissed.

In order however that the matter may be properly and finally settled between the parties, in any future proceeding that may be instituted for that purpose, we remark, that for any breach of the condition, the remedy of the grantor is in her own hands, by an entry and a suit at law, if necessary, to recover the possession ; and the remedy of the heirs is by a suit of equity to be relieved against the forfeiture, upon making a just compensation, or perhaps, by setting up this matter as a defence, when sued at law for the possession upon a breach of the condition. But, however this may be, the party will, in one way or the other, be relieved against the forfeiture incurred by the breach of a condition, if a proper case for equitable relief exist. In an early case, Peaety v. Somerset, 1 Strange, 447, it is said : “ The true ground of relief against penalties is from the original intent of the ease, and the court gives him all that he expected or desired; it is the recompense that gives the court a handle to grant relief.” In other words,' the ground of equitable interference is, that we ought to presume the object of entering into the contract was its fulfilment, and not an infliction of an injury on one side, nor the acquisition of a *373 collateral advantage on tbe other ; and that when this object is frustrated, the intention of the parties will be best carried out by substituting an equivalent in its stead, and not by enforcing a recovery which is excessive in value and different in nature ; and relief, we believe, is never denied, where the breach is accidental and without fault, and admits of compensation. (Livingston v. Tompkins, above cited; Popham v. Barnfield, 1 Vern. 89; Carey v. Bertie, 2 Verm. 339 .)

If a breach of the condition has been incurred here, merely by the grantee’s dying without making any provision by will for the support of his mother, although leaving ample means for that purpose, which his representatives have offered to apply accordingly, and which she declines receiving, (which we are not now called upon to determine,) it is very clear that it should not be imputed to the fault of the party, and that equity would compel the party to accept a compensation in lieu of the forfeiture.

Judge Ryland concurring;

the judgment is reversed and the petition is dismissed.