WRIT op entry, to recover a tract of laud situate in Washington, in said county. Plea, nul disseizin. Held: that although had the demise been by A to B for the term of his natural life simply, it would have been a demise for the life of B, his name appearing as the nearest antecedent to the relative his; yet as the demise was to B,his executors and administrators, and as there was a covenant for quiet enjoyment by B, his executors and…
Good law ✅— No negative treatment on recordhow we know
Decided 1875-03-11
How this case has been cited
Cited by 6 later decisions — most recently December 1951
6 state decisions
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
¶1The proviso is separated from the preceding part of the deed by a printed period, but it is not in a separate paragraph, and it commences with a small p instead of a capital; and I infer, from what is said in the case, that, the deed being written upon a common blank, the proviso had to be partially interlined, which perhaps accounts for the peculiarity of its position.
¶2It appears to me that the proviso naturally applies to what has gone before. I suppose, from the stress which is laid upon the small p, that the parties think that a matter of some importance; but it does not seem so to me, and I do not see anything in that which appears to me to alter what I think is the natural construction of the proviso.
¶3Neither, if we suppose that this conveyancer, whose mechanical skill was so small, was master of all the learning on the subject of implied covenants, is it apparent to me what object he could have which would induce him to substitute for the covenant of warranty implied in the word "give," the express covenant with the qualifying condition. I am therefore of opinion that the proviso must be held to apply to the whole preceding deed. It is also said that the condition has become impossible by the act of God; but I do not understand that the accidental burning of the mill can be considered to be an event so entirely beyond human control as to be properly described as an act of God. If, therefore, the condition had really become impossible by this accidental burning of the mill, the effect would be to give the plaintiff a right of entry.
¶4In this case, however, it appears that the plaintiff requested the defendant to rebuild the mill, so that, had the defendant complied within a reasonable time, the plaintiff must have been held to have waived his extreme rights, and to be estopped to deny that the condition had been performed.
¶5LADD, J. I agree that the exceptions must be overruled. I see no legal reason why one may not grant an estate determinable upon such a contingency as the destruction, in any way, of the building which exist upon the premises at the time of the grant. The estate conveyed would be simply a base or qualified fee.
