Wildman v. Taylor. the other half to him for fifteen years, subject to the rent specified. This construction does complete and exact justice between the parties, and is consonant with the principles of equity as well as the rules of law. But on the construction contended for by the assignee, by which the whole of the machinery in the factory on the 12th of August, 1855 (and this embraced nearly all there was at the time the deed was executed), is to be deemed as passing to Elijah Sturdevant, the latter would obtain half of such machinery without any consideration whatever. He was to pay $6,000, and receive a conveyance of one-half of the establishment as it stood when the bargain was made and the partnership commenced, not one-half of the real estate and the whole of the machinery. Had there been no other instrument of conveyance but the deed, and the construction of the assignee were the correct one, equity would have relieved the other half of the machinery on the ground of mistake, on the undisputed facts as they now appear. But, in my view, the whole difficulty is dissipated by comparing the deed and the lease in the light of surrounding circumstances. The latter instrument refers in terms to the former, and, although that and the deed are very imperfectly and inartificially drawn (being done in haste for execution by a dying man), I think it is apparent on the face of the documents themselves, that one-half the property was intended to be conveyed, absolutely, and the other half leased for the term of fifteen years. The two instruments thus embraced the whole property, except the half of the machinery added after the 12th of August, 1855, which belonged to the grantee and lessee, and upon which neither deed nor lease was designed to, or could, operate. In this view, were there nothing else in the case, of course the assignee would be deemed to have taken all the estate, both under the deed and lease, subject to intermediate incumbrances, which the bankrupts received from Elijah Sturdevant, which was an absolute BT. VOL. IV.—4 Wildman v. Taylor. title to one-half, under the deed, and the right of possession and use of the other half under the lease to the 21st of October, 1871, when the fifteen years will expire. But at this point the respondents, Taylor, his wife, and minor children, interpose the claim that the lease has become forfeit for the non-payment of stipulated rent. This is the next question in order. The language of the lease upon which this question is raised is as follows: "To have and to hold unto the said Elijah, his heirs and assigns, for the full term of fifteen years from this date, and till the same shall be complete and ended, the said Elijah paying to me or to my heirs or assigns, executors or administrators, the yearly rent of $700, during the continuance of said lease, and in default of said payment, for any year during said term, said lease is to be void, and said property is at once to revest in me or my heirs or assigns, without notice to the said Elijah, in the same manner as if this lease had not been given." It is contended by the devisees of the original lessor, that this clause of the lease amounts to a limitation, by the terms of which the estate was absolutely to cease and determine in the event of a failure to pay the rent stipulated, on or before the 21st day of October in any given year, and that no act on the part of the lessor, or his heirs or assigns, was necessary to entitle him or them to immediate possession. The assignee, on the other hand, insists that it is simply a condition, expressing a contingency, the happening of which should render the estate voidable at the option of the lessor. The latter view I think the correct one. "Words of limitation mark the period which is to determine the estate, but words of condition render the estate liable to be defeated in the intermediate time, if the event expressed in the condition arises before the determination of the estate, or completion of the period described by the limitation. The one specifies the utmost time of continuance, and the other marks some Wildman v. Taylor. event, which, if it takes place in the course of that time, will defeat the estate. The material distinction between a condition and a limitation consists in this, that a condition does not defeat the estate, although it be broken, until entry by the grantor or his heirs," (4 Kent., Comm. 126-127), and cases there cited. This is the doctrine of the common law, which now prevails in this State, and must govern this case (Bowman v. Foot, 29 Conn. R. 331.) The only absolute limitation in this lease is in the term of fifteen years. To this there is a condition annexed, that by failure to pay the rent any given year, the term should be cut short, and the lease become void. But it is well understood doctrine, that such stipulations are now always construed to mean that the lease shall become void at the option of the lessor. (Bowman v. Foot, supra; Clark v. Jones, 1 Denio; Jones v. Carter, 15 Mees. & Wels, 718.) In this case there was a failure to pay the rent due on the 21st of October, 1868. The devisees having succeeded to the rights of the lessor were, therefore, entitled to avoid the lease. The provision for a forfeiture was, in the eye of the law, and of common sense, inserted exclusively for the benefit of the lessor and those who might hold the fee under him. Now what steps were necessary on the part of these devisees in order to avoid this lease and secure themselves the right of immediate possession? Storrs, Ch. J., in Bowman v. Foote, already cited, remarks: "If the tenant's right is thus voidable only, the option to avoid must be exercised under the contract, and according to legal usage." This legal usage is to be derived from the doctrines of the common law. In Connor v. Bradley, 1 How. 211, 217, the Court say, "It is a settled rule at the common law, that where a right of re-entry is claimed on the ground.of forfeiture for non-payment of rent, there must be proof of a demand of the precise sum due, at a convenient time before sunset, on the day when the rent is Wildman v. Taylor. due, upon the land, in the most notorious place of it, even though there be no person on the land to pay." The same doctrine is laid down in Taylor's Landlord and Tenant, 3 ed., p. 346, sec. 493, and in Van Rensselaer v. Jewett, 2 Comst. R. 147; McCormick v. Connell, 6 Serg. & Rawle, 151, 153. In the present case, there was an attempt to make a demand on the part of the devisees, by an agent sent to the premises for that purpose on the afternoon of October 21, 1868. The particulars of that attempt were detailed by the witnesses on the hearing, and although it is difficult, in view of this evidence, to repress the suspicion that there was collusion between the agent of the devisees and Elijah Sturdevant, one of the administrators of the original lessor, and Edgar Sturdevant, one of the bankrupts, yet, I do not determine the point on that ground. The demand did not conform to the settled rules of law. It was, not for the precise sum falling due on that day. The agent could not make such a demand, for he testified that he did not know what amount was due. He simply made demand generally for the rent due. This, in point of fact, included not only the amount falling due that day, but also an unpaid balance on a previous year. In no aspect was this requirement of the law complied with. The lease was, therefore, not avoided, and the unexpired term, with all the rights which belong to it, passed to the assignee, and is to be disposed of for the benefit of the bankrupt estate. It follows, of course, from this view, that the assignee is entitled to the immediate and exclusive possession of this property, both real and personal. The lease also covers a small piece of land, with the boarding-house standing thereon, of which he is entitled to the possession. This land seems no way in controversy here, as I understand it is conceded by all parties in interest that it was originally purchased as the joint property of Hiram L. Sturdevant and his brother In the Matter of Garret S. Bellis and James Milligan, Bankrupts. Elijah, and that the fee of the latter's half passed, through the bankrupts, to the assignee. The other half is embraced in the lease, and consequently the assignee is entitled to the use and possession of the whole during the unexpired term. For the plaintiff, Nelson L. White, and D. B. Booth. For the defendants, Taylor and wife and children, W. F. Taylor, Origen S. Seymour. For the defendants, James S. Benedict and Ezra S. Benedict, Averill & Brewster. Southern District of New York. FEBRUARY, 1870. IN THE MATTER OF GARRET S. BELLIS AND JAMES MILLIGAN, BANKRUPTS. BOOKS OF ACCOUNT.-SPECIFICATION OF OPPOSITION TO DISCHARGE. Where it appeared that the bankrupts, being merchants, had not for ten months kept a cash-book, and that it was impossible to tell from their books what was their financial condition when they suspended business, Held, That a discharge must be refused. A specification of opposition to a bankrupt's discharge, averring that the bankrupt had not kept proper books of account in his business, in that such books do not show what moneys were received, or what disposition was made of them, is sufficiently specific to admit evidence that no cash-book whatever was kept for a time. |