ed: Coke Litt. 206. a.; Harvey v. Aston, 1 Atk. 361. S. C. West's R. 350., and Com. Rep. 726. It is next to be seen whether, in such cases, a court of equity can aid the party and help him to the estate notwithstanding the breach of the condition? Whatever confusion there may be in some of the earlier cases on the subject—and it must be admitted there are some which seem to be contradictory and irreconcileable and a few which appear to have been reversed in the House of Lords (1. Chan. Ca. 90. note; 1. Eq. Cas. Abr. 107. B.; Freeman's C. R. 35. and 220. n.; 1. Vern. 83.; 3 Ch. Cas. 119. and Colles' P. C. 10.) yet when we come down to the period of a more systematic equity jurisdiction, we find the decisions assuming greater steadiness and uniformity of character on this point. I shall begin with the decision of Lord Hardwicke in Reynish v. Martin, 3. Atk. 330. In this case, a legacy had been left to a daughter, upon the condition of her marrying with the consent of her trustees. She had married without their consent. A bill was filed for the legacy. His Lordship noticed the objection of its being a condition precedent unperformed. And he considered that, as there had been a breach of the condition and because the law would not, therefore equity could not help the party. In reference to the legacy being originally a charge upon lands, he observed, "It must have the same consideration as a devise of "lands would have; and in that case, nothing could be "clearer than that the legacy could not be raised, because "nothing vested before the condition performed." The case of Hervey v. Aston, above referred to, was similar and involved the same principle. It had been previously decided by Lord Hardwicke on an appeal from the Rolls; and, after an elaborate discussion, it was decided by his lordship with the assistance of the judges. I would next refer to Scott v. Tyler, before Lord Thurlow (2 Bro. C. C. 431.) as containing a full exposition of the law on this subject. Here, also, was a legacy given upon condition of the legatee's marrying with the consent of her mother; and which had not been done. The question as to the validity of such a condition, as well as the effect of non-performance, drew forth able and learned arguments from the numerous 1833. WELLS v. SMITH. 1833. WELLS v. SMITH. counsel in the cause, and among whom we find Mansfield, Scott, Hargrave, Plumer and Mitford. The argument of Mr. Hargrave embraced and explained in the clearest manner the doctrine and effect of conditions precedent and subsequent and the jurisdiction of equity over them-and which argument the counsel based upon a review of all the cases. He showed, I think, very conclusively and upon the soundest principles, that equity cannot interpose to relieve from the consequences of a condition precedent unperformed, although, with respect to conditions subsequent the doctrine is very different. The decision of Lord Thurlow was in accordance with this view of the law and with Lord Hardwicke's judgment in the former cases. The decisions in Powell v. Pellett, 2 Eq. Ca. Abr. 209. pl. 3. and Sweet v. Anderson, 2 Bro. P. C. 256. are also authorities for the same doctrine and bear directly upon the point. And this doctrine I consider to be brought down to the present day by the recent cases of Duffield v. Elwes, 1. S. & S. 239.; Long v. Ricketts, 2. S. & S. 179.: and Clifford v. Beaumont, 4. Russ. 425. It is founded in reason and justice. A man enters into a contract or makes a deed of settlement or a will (the instrument is immaterial) and he agrees to grant or devise an estate upon a condition which he declares must be performed before the person to be benefitted can take it. No court of law or equity can have a right to say that the condition, which is lawful in itself and one the party had a right to impose, shall be dispensed with. In order to do this, the contract or act of the party himself must be annulled and one created by the court put in its place. This would be contrary to reason and the assumption of a power which I, for one, must disclaim. The principle where on the court is to act in relation to conditions subsequent is widely different. In cases of this sort, if a breach or non-performance happens, the effect of which is to work a forfeiture or divest an estate, the court, acting upon the principle of compensation to the party for the injury sustained by the breach, will interpose and prevent the forfeiture. On account of the nature of conditions subsequent, they are said to fall within the lenient principle by which equity relieves against penalties; and the court will only give relief where compensation can be made in damages. There may even be cases of conditions subsequent unperformed in which the court will not relieve from forfeiture on account of the difficulty of ascertaining, with any degree of certainty, the amount or adequacy of compensation to be allowed: Jeremy's Eq. Jur. 475. It is unnecessary, however, to pursue this branch of the subject. The present case does not fall within it, There is one view taken of this cause upon the argument which I feel bound to notice. It is this, that the contract between the parties is, in effect, a sale and a mortgage back for the purchase money and the purchaser going into possession under the contract makes it so; and that it operates as a mortgage to the defendant who has all the security and rights of a mortgagee and the complainant the rights of a mortgagor entitled to redeem, even though the mortgage may be forfeited by non-payment on the day specified. By way of meeting some portion of this argument, it may be asked: why did not the parties put the transaction in the form of a conveyance of the title and legal estate and of a mortgage back, by executing the proper instruments for the purpose, provided they intended it should have such an effect? Now, this they have not done; but, on the contrary, have left the whole to rest in covenant. The title did not pass; and I am not at liberty to suppose the parties intended it should have passed, or that any effect was to be given to the contract beyond the plain import of its terms or inconsistent with the rules of law. The great difficulty, however, in giving to the transaction the effect of a mortgage and regarding the parties as mortgagee and mortgagor is, that no legal title or estate has ever vested in the complainant :-for, as before remarked, the contract amounted to an agreement to convey and that too upon a condition, and not to a conveyance. In my judgment, the whole claim and right of the party depends upon this point. With respect to mortgages in general for securing the payment of money, it may be observed, that the conditions. upon which they are given are conditions subsequent, and, therefore, in regarding them as they are known to the common law-independently of improvements growing out of 1833. WELLS v. SMITH. 1833. WELLS v. SMITH statutory regulations-the court of chancery can always relieve from a forfeiture of the estate on a breach of the condition: because it is enabled to award compensation in the payment of principal and interest of the debt to the mortgagee. As I feel myself bound to give effect to the transaction between these parties as a mere matter of contract in fieri and constrained by principle and upon authority to regard the condition of the contract in this case as a precedent condition, the strict performance of which was necessary in order to entitle the complainant to a fulfilment of it on the part of the defendant, I cannot extend to him the relief of a mortgagor. The consequence may be a great hardship upon him: but this he, himself, should have foreseen and prevented by a greater diligence on his part and on the part of those upon whom he was induced to rely for the means of completing the purchase. A little exertion would have accomplished the object and saved trouble and expense. The bill must be dismissed; but, under the circumstances, without costs. 1833. STAGG STAGG v. BEEKMAN and others, executors of RUTGERS, deceased. v. BEEKMAN. A trust is not to fail for want of a trustee or from any other cause, unless it would be in- In equity, a mere bequest by a creditor to his debtor is not necessarily or even prima facie 1833. The late colonel Henry Rutgers made his will and also June 24th. added several codicils to it. By the will, he directed his executors to pay the sum of one thousand dollars to Henry Will. Rutgers Stagg, the complainant, which he gave and bequeath- Legacy. ed to him for ever. He directed that all his devisees and le- Legatee gatees should receive the shares and bequests free from any owing testacharge; and authorised his executors, at their discretion, to compound debts where the debtors, from misfortune or otherwise, might be unable to pay or, if his executors thought it just, to forbear suing such debtors altogether. By one of the codicils, there was a devise in favor of the complainant in the following words: "I also give and de"vise that certain lot of ground in Market street aforesaid, "distinguished on said map as lot number 455, unto Henry "Rutgers Stagg his heirs and assigns for ever." By an af ter-codicil, the testator directed that the devise of a lot of land to Henry Rutgers Stagg and the legacy theretofore bequeathed to him should be revoked: and he ordered and di tor. Trust. |