Jackson ex dem. Bronck v. Crysler — 1 Johns. Cas. 125

Majority

p. 149

*Jackson, ex dem. Bronck, against Crysler.

Headnote

In an action of ejectment, it was held, that an actual entry was not neces‘'"sary in any case, except to avoid a fine.

Where B., the lessor of the plaintiff,, granted a tract of land to H. in fee, “ upon condition, nevertheless, that the said H., his heirs and assigns, should maintain B. and his wife in a suitable manner during their natural lives, and should also pay the debts of B.; and in default of which, it should be ' laVful for the lessor to re-enter, &c.; and H. afterwards conveyed part of the tract to the defendant, and B. made no objection to the deed, though he knew of it before it was executed, but continued with his family to reside on the residue of the tract.

In an action of ejectment for breach of the condition, it was held, that no parol assent, or silent acquiescence, will destroy the effect of a condition contained in a deed or amount to a waiver of the forfeiture.^)

(a) Gray v. Blanchard, 8 Pick. 284 ; and by Parker, Ch. J. at 292.

This was an action of ejectment, brought to recover certain premises in the possession of the defendant, situate in the town of Bethlehem, in the county of Albahy.

The cause was tried before Mr. Justice Benson, at the last sittings in Albany. It appeared that the lessor of the plaintiff by a deed, bearing date the 3d May, 1795, granted a tract of land,' including the premises, to Hendrick Bronck in fee, “ upon condition, nevertheless, that the said Hendrick Bronck, his heirs and assigns, should maintain the lessor of the plaintiff and his wife in a suitable manner, during their natural lives, and should also pay the debts of the lessor, and in default of which it should be lawful for the lessor to reenter,” tfcc. H. Bronck afterwards conveyed the premises to the defendant; and this action was brought upon a forfeiture of the condition above mentioned.

It further appeared, that the sale to the' defendant was made by' H. Bronck, for the purpose of enabling him to discharge the debts of the lessor of the plaintiff, who agreed with him as to the propriety of a sale of part of the tract for that purpose, but objected to the sale of the particular quantity or parcel actually conveyed to the defendant. The agreement between H. Bronck and the defendant for the

p. 150

sale of the premises was, however, completed, and carried' into effect; and the- lessor being apprised of it before the execution of the deed to the defendant, did .not express any objection to it; but continued with his family to reside on the residue of the tract.

The weight of evidence as to the performance of that part of the condition which related to the maintenance of the lessor of the plaintiff and his wife was conceded to be against the defendant; but no actual entry into the premises for the forfeiture was shown on the part of the lessor of the plaintiff. A verdict was taken for the plaintiff, subject to the opinion of the court on the whole case.

[*126] *On the argument two questions were made ; 1.

Whether an actual entry was necessary to be shown, in order to entitle the plaintiff to recover..

2: If not, whether the lessor, having previously assented to and acquiesced in the sale made to the defendant, (which was contended to be the result of the evidence,) was not thereby precluded from a recovery.

Emott, for the plaintiff .

Spencer., for the defendant

As -to the • first point, there was formerly much contrariety in the cases on this subject; but it seems to be settled by repeated decisions, (2 Ld. Raym. 750 1 Salk.. 250; S. C. 1 Vent. 248; 2: Vent 332; 3 Burr. 1897; Doug. 486,) for near a- century, that the confession of lease, entry, and ouster, is sufficient to maintain an ejectment for a condition broken, and that an actual entry is not necessary to be shown in any case, except to avoid a fine. •

As to the second point, it does not appear thát any fraud or concealment was practised by the lessor of the plaintiff to entrap the defendant. The rule of caveat emptor, therefore, applies. It was incumbent on the defendant to examine the title. The consent of the lessor if proved, was ineffectual, unless he actually relinquished his right. No parol assent or silent acquiescence can destroy the' effect of an express condition' contained in a deed.^[1] (Shep. Touch. 117.)

(a) (a) Butin Chalker v. Chalker, 1 Conn. R. 79, where land was conveyed on *151 condition of paying a certain annuity, and after a failure to pay, the annuitant accepted the annuity, the forfeiture was held to be waived, and once waived, could not afterwards be claimed. See also 7 Conn. R. 45; Willard v. Henry, 2 N. H. R. 120 ; Coon v. Brickett, id. 163 ; and per Sutherland, J., 3 Cowen, 230.

p. 151

The condition, therefore, accompanied the lands in the hands of the defendant and subjected him to the forfeiture.

In some cases, particular acts may waive a forfeiture by affirming the continuance of an estate, after a condition broken ; but these are acts done by the grantor or lessor, after a forfeiture accrued, and for his benefit. No parol assent will amount to such a waiver.

Judgment for the plaintiff.