Allen v. Howe

Morton, J.

The demandants’ title is derived by mesne conveyances from Moses Kimball, to whom, the tenant conveyed the demanded premises by deed dated March 31, 1864. This deed contains the following clause: “ And this gift, grant, bargain, sale and conveyance is made upon and subject to the express conditions, that for twenty years, next ensuing from the day of the date hereof, the said grantee, his heirs, executors, administrators and assigns, and any and all persons claiming by, through and under him, them or any of them, shall use that portion of the granted land which lies between the main road and a line drawn parallel to said main road at a distance twenty feet north of the northerly side of the bam now standing on the granted premises, exclusively for hotel accommodations, and for no other purpose whatsoever, and shall not during said term of twenty years erect or suffer to be erected on said portion of the granted premises any building less suitable, commodious and convenient for hotel purposes than the one recently erected thereon would be when fully completed, or use or suffer to be used any building or buildings now on or that may be hereafter erected on said portion of the granted premises for any purpose whatsoever other than for° hotel purposes during said term of twenty years, and the intention, obligation and force of these conditions, any and all of them, shall be nowise annulled, weakened, or anywise affected by reason of the partial or entire destruction, by fire or otherwise, of any building or buildings, now erected or which may hereafter be erected on the granted premises or any portion thereof. It being understood, however, that the lower story of the westerly wing of the hotel building may be occupied for a store, as at the presént time.” By this deed, the grantee took an estate upon a condition subsequent; and the only question in this case is, whether there has been a breach of the condition which works a forfeiture.

It appears that the hotel on the demanded premises was completed by said Kimball, and on April 28, 1868, was totally destroyed by fire. It has never been rebuilt. A part of the premises which by the terms of the condition were to be used exclusively for hotel purposes was leased by the demandants’ grantor to one Griffin, who occupied it for about a year after the fire for agricultural purposes. The tenant entered for a breach of the condition, on May 13, 1869; and this suit was commenced August 11, 1870. Up to this time it does not appear that the demandants or their grantor have offered to rebuild the hotel, or done any act indicating an intention to do so.

We are of opinion that the facts of the case show a breach of the condition. Under the most favorable construction which the grantee can claim, he was bound to rebuild the hotel, in case of destruction by fire, within a reasonable time. Hayden v. Stoughton, 5 Pick. 528. He could not otherwise perform the condition that he should use the premises for hotel purposes. The condition provides that the destruction of the buildings by fire should not in anywise annul, weaken or affect its obligation or force; and the grantee paid nothing for the estate, the only consideration of the conveyance being the expected benefit to the other property of the grantor from the performance of the condition. It is obvious that it was the understanding and purpose of the parties, that the buildings, if destroyed by fire, should be promptly rebuilt. We are of opinion that, under the circumstances, the failure of the demandants or their grantor to rebuild, or to take any steps towards rebuilding, was unreasonable. There is nothing in the case to show any excuse for the delay, or that the demandants have any intention hereafter to rebuild. On the contrary, the inference from the fact of their leasing the premises for agricultural purposes, and from the other facts of the case, is very strong, that they have permanently abandoned the use of the premises for hotel purposes. For these reasons, we are of opinion that there was a breach of the condition. Judgment for the tenant.