Hodsdon v. Smith

The condition annexed to the conveyance from the plaintiff to the defendant, by which, if the defendant and others should fully and freely pay to the plaintiff two sums of $115.00 each, at the times there specified, the deed should be void, is certainly somewhat singular ; especially when it appears from the statement that the sums there mentioned are the purchase money of the land conveyed, and the notes given to secure their payment the very consideration upon which the deed was executed.

How it happened that such a condition should have been inserted, the parties have not informed us, nor is it material. Whether it were from “fraud, accident or mistake,” (and it would seem that it must have been from one of these causes,) the result must be the same.

But it is not necessary to resort to equity to reform the conveyance, nor to the principle that conditions repugnant to the conveyance to which they are annexed, are void. The •plaintiff conveyed to the defendant in fee a tract of land, to which it seems he had a good title, for the defendant has entered under the deed, and holds the land, so far as appears, without any adverse claim. The defendant, in consideration of this conveyance, executed the two notes which the plaintiff now seeks to recover; against which recovery the defendant has nothing to allege except the condition in the deed, which he fears will destroy the conveyance upon payment of the consideration. But this fear is groundless. The defendant has effectually secured himself from such a catastrophe by the non-performance of the condition. If the plaintiff should attempt to avoid his deed, upon the ground *44that the defendant had performed the condition, he musí show that the defendant freely and fully paid the sums mentioned at the times specified. That is the condition upon which alone the deed was to be void, and the plaintiff can-hot enforce a forfeiture except upon a strict performance. The present suit, therefore, will be a perfect answer to any such attempt, as it shows, very conclusively, the nonperformance. The defence will be upon record. We must, therefore, give

Judgment on the verdict.