Austin v. Cambridgeport Parish

delivered the opinion of the Court. The demandant must establish the following positions, to entitle herself to maintain the present action : —

1. That the estate conveyed to the Cambridgeport Meetinghouse Corporation by Benjamin Austin and Jonathan L. Austin, was an estate upon condition subsequent; —

2. That there has been a forfeiture of the estate by reason of a breach of the condition annexed thereto ; —

3. That the interest of Benjamin Austin in the premises was such an estate as was transmissible by devise, and did pass to his devisees under the provisions of his will; —

4. That the devisee of such interest might, upon breach of the condition in the deed, institute a suit to recover the premises demanded, before making an actual entry.

To maintain the first point the demandant relies upon the terms of the deed, subjecting the estate to the express condition, that the premises thereby granted shall be held by the grantees and their assigns for the use, benefit and support of the ministers who shall be settled by a parish or religious society, to preach in the meetinghouse situate on the meetinghouse lot conveyed to the Cambridgeport Meetinghouse Corporation by the deed of Rufus Davenport and his associates, and all other meetinghouses which shall be hereafter built on the same site where the said meetinghouse stands, and for no other purpose whatever ; and with the further provision, that if the rents and profits are not so applied, the conveyance is to be void, and the premises to be in the grantors and their heirs.

The terms used in this deed are those indicating, in the most direct and unequivocal manner, that the grantees were to take an estate upon condition subsequent. The present tenants derive their title under the grantees in this conveyance, and take it with the like conditions.

2. Has there been a breach of the condition of this deed

It is admitted by the tenants, that the meetinghouse situated on the lot conveyed by Rufus Davenport and others, was *222taken down in the year 1833 by order of the tenants, and that no other meetinghouse has since been built or is now budding on the same site, but the tenants have caused another meetinghouse to be erected on a different lot, in which they have their religious worship. There is therefore at the present time no such appropriation of the land conveyed to them under this deed, as was required by the terms of the grant, and the only remaining inquiry on this point is, whether there has been such an abandonment of the former location as a site for a meetinghouse, as will cause a forfeiture of the estate granted by the deed of Benjamin Austin and Jonathan L. Austin. A destruction of the house by tempest, or other casualty, or the taking it down for the purpose of .rebuilding on the same site, obviously would not have affected the rights of the tenants. The law would in such case preserve their estate, and give such a construction to the deed as would afford a reasonable opportunity for rebuilding a house on the same site whenever it should become necessary. But the tenants contend, that having occasion to make expensive repairs to render the house on the old site suitable and convenient as a place for public worship, they had the right to cause the same to be taken down, to erect a new meetinghouse upon a different lot, and to remove to the same as their stated and regular place of worship, without causing any breach of the condition on which they held the demanded premises, and especially as the tenants, when they voted to change the location of their meetinghouse, also voted, “ that the lot formerly occupied for a meetinghouse be reserved for the erection of a meetinghouse at some period hereafter, when said parish may deem it expedient.”

These considerations will not, in our opinion, save the breach of the condition annexed to their deed. An actual removal without any present intention of returning, and accompanied as it is by the strong presumptive evidence as to the proposed future course, by the erecting on a different site an edifice designed to be used as a substitute for the old one, and a dedication and actual adoption of it as such, are facts too significant in their character to be controlled by the circumstances relied upon by the tenants in their defence. Their, vote “ reserving the lot for the erection of a meetinghouse at some *223period hereafter, when said parish may deem it expedient,” leaves the event altogether too contingent. Such a vote might be but a dead letter, and cannot avail to save the forfeiture of an estate given on the express condition of applying the profits of it to the use and support of a minister who should preach in a meetinghouse to be placed on the lot thus in effect abandoned. The only doubt that can possibly be raised on the point of a forfeiture, is that arising from the comparatively short period of the non-user of the lot according to the terms prescribed by the deed. That period is something less than four years. Although this might, under some circumstances, be insufficient to cause a forfeiture for mere non-user, yet considering the facts disclosed in the present case, the strong indications of purpose manifested by the actual occupation by die tenants, of other premises for this object, and the erection thereon of a new and permanent edifice, the Court are clearly of opinion, that there has been a breach of the condition on which the tenants held the land.

3. It then becomes important to ascertain whether the interest of Benjamin A ustin in the premises at the time of executing his will, was a devisable interest, and if so, whether the de mandant acquired a title to the same under the will.

No difficulty exists in the case on the ground of any adverse possession at the time of making the devise, as the premises were held by a concurrent and an adverse title. The interest of the testator and the tenants united composed only the entire fee simple estate, as much so as in the ordinary case of an estate for life to A, remainder to B. Nor does any objection arise on the ground of any change in the nature of the interest between the time of making the will and the death of the testator. The interest of the testator at both these periods of time was not a present right of entry, but a contingent possible estate. That such an interest is devisable in England, seems well established by the case of Jones v. Roe, 3 T. R. 88, and the cases there cited. Chancellor Kent states the rule to be, that all contingent possible estates are devisable. 4 Kent’s Com. 498, in notes. The case of Hayden v. Stoughton, 5 Pick. 528, is more fully in point, as giving a construction to our statute authorizing devises, and seems to *224be entirely decisive of this question. There can therefore be no doubt but that the testator Benjamin Austin had a devisable interest in the premises.

Nor can there be any question but that this interest was legally devised, and passed by the terms of the residuary clause of the will. It is not like the case of an interest arising by reason of a lapsed devise of real estate, which would go to the heir at law, and not to the residuary devisee, but it is a contingent interest in the testator not disposed of by any other part of the will, and properly falls within the residuary clause disposing of all the estate not before devised. Hayden v. Stoughton, 5 Pick. 528.

4. To entitle the devisee to maintain this action, it would, by the principles of the common law, have been necessary fo her to have made an actual entry before instituting her suit, bu by the provisions of the Revised Statutes great and important changes have been introduced into our system in relation to real actions, both in the form of the pleading and in the proof necessary to sustain such an action. The demandant is no longer required to prove an actual entry under his title in those cases where such entry was necessary at common law, but if he shows that he is entitled to such an estate as he claims in the premises, whether as heir at law, devisee, or otherwise, and that he has a right of entry therein, this is sufficient proof of his seisin. Revised Stat. c. 101, § 4, 8.

The demandant having established a legal title to the premises as demanded in her writ, the tenants must be defaulted.