Opinion
08-02-1887
RICHARDS, Jr., Trustee, v. BURDSALL.
John W. Wescott, for the motion. H. A. Drake, contra.
On bill for relief. Motion to strike out bill.
John W. Wescott, for the motion. H. A. Drake, contra.
BIRD, V. C. The prayer of the bill is that the defendant may be enjoined from making or selling any spirituous or intoxicating liquors on certain premises described in the bill. The bill shows that 4,600 acres of land were conveyed to the complainant in trust to lay off and divide said premises into smaller tracts suitable for purchasers; to open streets, lanes, and passages, and to dedicate them to public use, and to make such improvements as may be necessary and tend to the more profitable disposition of the said lands; to make sale and dispose of the same in fee-simple or otherwise, and to make deeds of conveyance therefor free and discharged of the said trusts,—the net. proceeds to be equally divided between persons therein named. The bill also shows that, in pursuance of the power and trust, the complainant sold and conveyed a number of parcels to different persons; and that on the fifteenth of January, 1872, he sold and conveyed a small portion to one Allen, with the express provision, restriction, or stipulation that the said Allen, his heirs and assigns, would not at any time make, sell, or permit to be made or sold therein, any spirituous or intoxicating liquors, by large or small measure, except when prescribed or necessary as medicine, on pain of forfeiting the title thereto, and that, in case of breach of said condition, it should be lawful for the said cestuis que trustent to enter as of their former estate. The bill likewise shows that in February, 1885, Allen conveyed one-half of said lot to John S. Burdsall, the defendant, and that said defendant has been and is selling intoxicating liquors, contrary to the true intent and meaning of said stipulation. It should be stated that many of the other lots conveyed have been improved, and houses built upon them.
The motion to strike out is based on the stipulation or condition itself. It is claimed that the complainant, by stipulating that there should be a forfeiture of the title in case of a breach, has determined beforehand the nature of his remedy, and closed the door of this court against himself. Therefore, since forfeiture is the penalty, he can only have a remedy at law. This is said to be a very general rule, and it has been strictly adhered to in this state. And the case of Woodruff v. Water-Poiver Co., 10 N. J. Eq. 489, goes a long way in that direction. In that case the company took a deed, with the condition that, unless the company should erect and maintain a bridge over their race-way across the land conveyed, and erect and maintain a suitable landing, and erect and maintain proper fences, the said lands and premises conveyed should revert to the grantor, his heirs or assigns. The learned chancellor dismissed the bill which was filed for a specific performance of the condition. He held that, the company not having signed the deed, it was not bound; admitting, however, that this is not always necessary. There was no covenant on its part. "Upon covenants, the legal responsibility of their nonfulfillment is that the party violating them must respond in damages. The consequence of a non-fulfillment of a condition is a forfeiture of the estate. The grantor may enter at his will, and possess himself of his former estate. * * * The defendants accepted the deed, entered upon the land upon the condition that if they did not perform them they should forfeit all the benefits of the grant." These views were affirmed on appeal.
This case should be my guide now, unless an essential difference appears which would justify this court in exercising jurisdiction. I think such difference is quite manifest. Supposing that the language in this case imports a condition and not a covenant, and that the penalty of forfeiture follows upon a breach, in this case, to make the penalty just and as far-reaching as the condition implies, and as the complainant can lawfully maintain, he would be entitled to re-enter and repossess himself of the whole tract conveyed to Allen, as well as the one-half thereof sold by Allen to the defendant. There is no satisfying such a bond but in yielding up the whole penalty. In the law there is no modification of this exaction.
Now, Allen has not transgressed. It does not appear that he has violated the condition under which he accepted title. Why, then, should this court refuse its aid, and not compel the defendant to the actual performance of that which every man who thinks at all will say he ought to perform under the circumstances? It seems to me that this court would be doing a most inequitable thing to dismiss the bill, and thereby compel the complainant to consider whether or not he will claim the entire tract sold to Allen under the said condition. Were this to be done, and the complainant were to bring his action of ejectment, and to show that the condition had been violated, the consequences to Allen, however disastrous, would be inevitable. But in the event of an action in ejectment against Allen as well as his grantor, this defendant, Allen, would no doubt become conscious of his rights and equities, and would show to this court his interest in a portion of the land, his improvements thereon, and the advance thereof in value, and ask protection. He would doubtless be protected. It has been decided in many cases that, although there is a penalty by way of forfeiture, the complainant is not obliged to insist upon it. Hodson v. Coppard, 29 Beav. 4; Tulk v. Moxhay, 15 Beav. 577; High, Inj. 701,—showing how third parties may become interested in such transactions, and how the acceptance of such deeds changes the apparent condition into a binding covenant. High, Inj. §§ 713, 721; Parker v. Whyte, 32 Law J. Ch. 520; Bowser v. Colby, 1 Hare, 109, 128, 129; Barron v. Richard, 3 Edw. Ch. 96.
Motion denied; costs to abide the event.