Jenks v. Walton

The petitioner claims that the premises are forfeited to her for the non-performance of a condition subsequent, contained in a deed from her to the respondent. A question arises whether she made a sufficient entry upon the land to entitle her to the benefit of tbe forfeiture.

Her counsel contends that this inquiry is not necessary, because the right of partition is conferred upon any petitioner who has only “a right of entry” into lands. R. S., c. 88, §§ 1 and 2. But this provision refers to one having the title and not the possession of land, and not to one whose title is conditional upon the fact of entry. Without an entry to recover the locus, the petitioner has neither possession or title.

What constitutes an entry for condition broken ? It is deducible from the authorities that it must be an act. An intention to make an entry is not enough. The right to make it, so long as it is postponed, is considered for the time being as waived. A mere entry upon the land is not enough. The entry must be for the *100purpose of taking the land back. The factum and the animus must concur in order to make the entry available. A mere casual or accidental presence upon the land would not operate to do it. The intention must be sufficiently shown either by the act itself or by words accompanying the act. Therefore it has been customary to take witnesses upon the land and personally express the intention in their presence. It is not necessary to turn the grantee off the premises. Nor to take possession in his presence. Nor to give an actual notice to him. Still the act itself must be of such a character as would serve to indicate to the person in possession that his right to the locus was regarded as terminated. It is not necessary that the grantor should make an entry even, if being in possession he remains in with the intent to hold the property for forfeiture, but in such ease there must be somé clear manifestation of such intent. Robison v. Swett, 3 Maine, 316; Peabody v. Hewett, 52 Maine, 33; Brickett v. Spofford, 14 Gray, 514; Stockbridge Iron Co. v. Cone Iron Works, 102 Mass., 80. See Washburn on Real Property, Titles, Estates on Condition and Possession.

Applying the evidence to these rules, and the testimony of the petitioner must be regarded as showing a sufficient entry to revest the title of the estate in her. She says that she made an entry upon the locus for condition broken with witnesses and notified the respondent on the premises that she should take possession of the land, because he had broken the condition in the deed.’

After verdict the respondent moved that an auditor be appointed by the court to ascertain what sum of money would be sufficient to relieve the forfeiture, in order that; upon the payment of such sum, further proceedings in the suit might be stayed. This request was denied and an exception taken thereto. Most of the cases cited in support of this motion would be applicable if this was a real action to foreclose a mortgage given by the respondent, instead of his being the grantee in a conditional deed. Probably a common law court has the power to grant such a motion if deemed proper to do so. Atkins v. Ghilson, 11 Metc., 112. *101A sufficient answer in the present case, is that there is no evidence of any kind before us which would show whether the motion is a meritorious one or not. There is nothing to indicate hut that the breadles of condition were of a gross, wilful or inequitable character. The respondent can best judge whether the circumstances were such as would warrant his attempt to obtain a relief from the forfeiture by future proceedings in equity. No remedy is open to him here. Exceptions overruled.