Henry v. Tupper

29 Vt. 358

Opinion

The opinion of the court was delivered by

Redfield, Ch. J.

This case seems to involve the naked question, whether the grantor of land on condition of defeasance, if he fail to fulfill the covenant annexed to the deed for the support and maintenance of the grantee, can be relieved, in equity, from. the failure to perform such condition ; and if so, whether this is matter of course, and under all circumstances, in courts of equity; and if net, under what particular circumstances such relief will be granted.

It is claimed upon both sides, that this court have determined the question in their favor. The plaintiffs rely upon Austin v. Raymond, 9 Vt. 420. This case was brought by the grantee for the purpose of foreclosing any equity in the grantor, after nonperformance of a condition to afford maintenance. His bill, therefore, must assume that the defendant had still some equity in the premises, so that the question did not strictly arise in the case. But the judge, in giving the opinion of the court, says it had been raised by counsel, and he intimates an opinion upon it: “ There is certainly no difficulty in making compensation for past maintenance, any more than in any case of contract to perform services.” And it is added that an assignee or subsequent mortgagee may be admitted to perform the contract in future.

And the defendant claims that the case of Dunklee v. Adams, 21 Vt. 421, has overruled the case of Austin v. Raymond, and determined the question in his favor. The opinion of the judge delivering the opinion in that case, from a thorough review of the authorities, is expressed somewhat decidedly against the power of the courts of chancery to grant relief in such cases. But in conclusion he says : “ It is not intended to decide the case upon this ground,” but upon the circumstances of that particular case. This must leave the authority upon this subject much as before, upon the case of Austin v. Raymond. And although we are not satisfied that the point was necessarily involved in that case, and it is certain the authorities are not much examined there, still the profession and the people of the state have, perhaps, to some extent, regarded that case as having settled the question in the state. But it seems to us the matter is still so far open that it is expedient to examine it in detail, and determine it, if possible, upon principle and authority.

The deed seems to us to be in form substantially a mortgage. It is a deed, subject to defeasance by the non-fulfillment of a condition subsequent. And that is all there is in any mortgage. At law the estate is gone forever, strictly speaking. The estate, by the terms of its creation, could only exist so long as, and upon the performance of the condition. That failing, the estate lapses and is gone.

But equity, as a general thing, will relieve the party from such a forfeiture. It will do it in all cases, it is said, where compensation can he made; 2 Greenl. Cruise 36, sec. 29.

Chancellor Kent lays down the rule in regard to relief in such cases, that it is confined to cases where the forfeiture has been the effect of accident, and the injury is capable of compensation; Langston v. Tompkins, 4 Johns. Ch. 431, citing Rolfe v. Harris, 2 Price 207; Bracebridge v. Buckley, 2 Price 200; and this seems to be putting the matter upon reasonable grounds.

But if the matter is really capable of compensation, it is more doubtful, perhaps, whether the cases will warrant any denial of relief, upon the ground that the forfeiture was not the result of accident. It is certain no such thing is required to be shown in the naked case of a pecuniary debt. The non-payment may be willful, and the party is still entitled to relief, as matter of right. But the case of Dunklee v. Adams seems to have settled the question in this state, that relief for non-performance of collateral duties is matter of discretion in the courts of equity, to be judged of according to the circumstances of each particular case.

And in Hill v. Barclay, 18 Vesey 56, which is a very elaborate case upon this point, although the chancellor, Lord Eldon, says a great deal about the difficulty of making compensation, in money cases even, and shows very clearly that the payment of money and interest, in most cases, is no compensation for not having it when due, and so shows pretty conclusively, I think, that there is no settled principle in the books in regard to what cases the court will relieve from forfeiture, and what cases they will not; and that, after all, it does not depend so much upon the difficulty of making compensation as upon other circumstances often. Lord Eldon says if the covenantee offers to overlook the forfeiture, there would .seem to be no difficulty in allowing subsequent performance of a specific act, as making repairs. But “ if the tenant still refused, upon what ground,” asks his lordship, “ having willfully refused .and violated all his covenants, could he desire a court of equity to place him in exactly the same situation as if he had performed them ? ” And this point of willful neglect and non-performance is many times referred to in that case as an invincible obstacle to relief. These two points seem to me to have been very generally mixed up most inextricably in the equity decisions upon the subject. In cases where the condition is for the payment of money, or for the performing of a certain value of services, expressed in currency as one hundred dollars of necessary repairs upon buildings leased, it has been, I think, the more general practice of the court to grant relief as matter of right, without reference to the inquiry whether the default was accidental or willful. But in all cases where the thing to be done was something collateral, where the issue quantum damnifi-catus must be sent either to a jury, or masters, before the court could grant relief, they have pretty generally, I think, required to be satisfied that the omission to perform Was not willful but accidental and by surprise, and it has been held always in such cases to depend very much upon the circumstances of the particular case. That relief might be granted in equity, even where the condition was for the performance of collateral acts, seems to be admitted in most of the cases upon this subject; Webber v. Smith, 2 Vernon 103; Hack v. Leonard, 9 Mod. 90; Cox v. Higford, 2 Vernon 664; Saunders v. Pope, 12 Vesey 282. These are cases of non-repair of premises leased; and the chancellor, Lord Erskine, says in the- last case, “ I cannot agree it is necessary the non-performance of the covenant should have arisen from mere accident or ignorance.” The cases are abundant where relief has been granted against forfeiture of title by non-performance of other collateral acts, as for not renewing, a lease; Rowstone v. Bentley, 4 Br. C. C. 415; or for cutting down timber when covenanted against, on pain of forfeiture; Northcote v. Duke, Ambler, 511; Thomas v. Porter, 1 Ch. Ca. 95. But it has been held relief will not be granted where the forfeiture arises from an act incapable of compensation, although of no essential damage to the other party, as the breach of a condition not to assign; Wafes v. Mocato, 9 Mod. 112. The same rule obtains where the forfeiture arises from an omission to insure; Rolfe v. Harris, 2 Price 206.

Judge Stort inclines to the opinion, that in the English Chancery this relief is more sparingly granted of late than formerly ? especially in cases beyond the payment of money eo nomine ; but thinks, as every one must, that there is no just ground for confining it to so narrow limits, and thus to deny relief in all cases where the failure is in regard to some collateral act, capable of definite estimation by a master or a jury; but concludes the present English rule is confined to granting relief for non-performance of covenants, where the breach occurs from “ accident, mistake, fraud or surprise, although the breach is capable of just compensation.” But the cases which he cites upon this point are in Yesey and earlier, most of them; and result from Lord Eldon’s criticisms chiefly, which we have before alluded to, but which he did not himself act upon to the full extent; Reynolds v. Pitt, 19 Vesey 140, 18 id. supra.

It seems, however, to be pretty-well established in England, that relief for non-repair of premises will not be granted as matter of course, and especially when there was a willful default; Bracebridge v. Buckley, 2 Price 200; Hill v. Barclay, 16 Vesey 402 and 18 id. 56. But where the failure is from “ accident, fraud, surprise or ignorance not willful,” relief will be granted; 2 Lead. C. in Equity, 464, 465; Eaton v. Lyon, 3 Vesey 693; the result of all which seems to be, that there is no well settled rule upon the subject, or none which is not liable to considerable variation, and to be affected by the circumstances of the particular case.

It certainly cannot be maintained, from the authorities, that relief is, in all cases, limited to the non-payment of money. Nor is there any principle whereby it can be made to appear that such cases are the only ones where compensation can be made. Many collateral duties are just as susceptible of compensation as a covenant to pay money, as undertakings to deliver goods, to repair premises, or to afford support even; for in all these cases the nonperformance, at the time, is not fully compensated by the payment of the same value and interest at an after time. The non-payment of a sum of money, at a particular time, may, under circumstances, be ones ruin, and at others it may be a positive benefit, if the interest be subsequently paid; and so of any collateral duty. And in regard to this support, it is no doubt capable of being stated in strong terms, and quite consistent with supposable emergencies. But the case would not be different, in fact or in principle, if it was a stipendiary sum in money, for the purposes of support, either in fact or in terms expressed in the contract.

But the apprehension that this equitable relief shall be absolutely confined to cases of pecuniary debts, is certainly presenting a very shortened view of the range of equitable principles. Such a limit, to be held absolutely binding in all cases, would certainly look like an evasion of just and reasonable discretion.

But we must all feel that cases of the character before the court should be received with something more of distrust, and relief aiforded with more reserve and circumspection, than in ordinary cases of collateral duties. And although we are not prepared to say that it must appear that, in all cases, the failure arises from surprise, or accident, or mistake, we certainly should not grant relief when the omission was willful and wanton, or attended with suffering or serious inconvenience to the grantee, or there was any good ground to apprehend a recurrence of the failure to perform, as was held in Dunklee v. Adams, 20 Vt. 421.

But in the present case nothing of this appears on this demurrer; but, on the contrary, it is alleged that the orator was surprised at the finding of the jury that the condition of the deed had not been fully performed by Aikens and others. It does not very distinctly appear when the failure did occur, whether before or after the conveyance to the orator, nor is it very material, perhaps, except in regard to the proof of motive in the orator and his claim to relief.

The court very readily admit that the subject under consideration may admit of many cases where no relief should be granted in equity. This very class of cases will afford abundant illustrations of the essential necessity and manifest propriety of holding the subject únder the control of the courts of chancery, and making the relief dependent, to some extent, upon circumstances. The case might occur where the refusal to afford daily support would be wanton and wicked: indeed, where it might proceed from murderous intentions even ; and it is even supposable that the treatment of those who were the objects of the services, should be such as to subject the grantor to indictment for manslaughter, or murder even, and possibly to ignominious punishment, and to death. To afford relief in such a case, for the benefit of the heirs, would be to make the court almost partakers in the offense.

And the case, upon the other hand, is entirely supposable and of not infrequent occurrence, where, through mere inadvertence, a technical breach may have occurred in the non-performance of some unimportant particular, in kind or degree, where, through perhaps mere difference in construction, or error in judgment, one may have suffered a forfeiture of an estate, at law, of thousands of dollars in value, where the collateral service was not of one dollar’s value, and attended with no sei’ious inconvenience to the grantee. Not to afford relief in such case would be a discredit 'to the enlightened jurisprudence of the English nation and those American states who have attempted to follow the same model.

Decree of chancellor reversed. Demurrer overruled. Case remanded.