Opinion
March Term, 1866
Henry Smith, for the appellants.
Abraham Becker, for the respondents.
The deed to Hallenbeck is founded on a sufficient consideration, to wit, the agreement of the grantees, therein expressed, to maintain and support the grantors. The deed contains not only a condition, but also an express covenant to that effect. The language is, "Hallenbeck is to and agrees to keep, maintain," c. The grantee, having accepted the deed and taken possession under it, is bound, by the covenants therein contained, as effectually as if he had signed them. (9 Wend., 618; 1 Seld., 229.) In Jackson v. Florence, cited by the appellants' counsel (16 Johns., 46), there was a bare naked condition expressed in the deed, unaccompanied by any covenant or agreement on the part of the grantee. The distinction between cases of that description and those like the one before us, where the condition is connected with a covenant, is obvious and well established by authority. (8 Paige, 402; 11 id., 414; 1 Kern., 387-391.)
The admissions of Ezra Spaulding, Sr., to the effect that the conditions had been performed, upon the forfeiture of which his title and right of action depended, were admissible in evidence as against the plaintiffs, his heirs, by reason of the privity between them. By those admissions he qualified his own right, and his heirs, who succeed him, succeed only to the right, as thus qualified at the time when their title commenced. (1 Greenl. Ev., § 189.)
It is urged, however, by the appellants, that such admissions could not properly be proved by the testimony of the defendant Hallenbeck. But the question whether Hallenbeck was a competent witness in behalf of the defendants, to testify to transactions and conversations had by him personally with the deceased, is not raised by the exceptions. He was sworn and examined without objection. No objection was made to any part of his testimony except that which related to the declarations of the deceased, and that portion was objected to only upon the untenable grounds that it was hearsay and irrelevant. The motion made at the close of his testimony to strike out the whole of it was properly denied, for the reason that it was too broad, since the defendants were clearly entitled to so much of his testimony as did not relate to transactions and conversations with the deceased. The subsequent motion to strike out all his testimony as to transactions with the deceased was also too broad, as it included the version which Hallenbeck had given of certain transactions with the deceased respecting which the plaintiff, Spaulding, had previously testified in behalf of himself and his co-plaintiff, and in reply to whose testimony that of Hallenbeck was given. It is probably true that the Code of 1860, which was in force when the trial was had, did not provide for such a case as has been done by a subsequent amendment. (1862, ch. 460, § 31, p. 858.) Nevertheless, the defendants were entitled to retain the testimony, for the reason that both parties, by the course of examination adopted by them, of their own motion, had made the testimony of the plaintiff and the defendant in respect to the particular transactions in question competent evidence in the cause, and it would have been obviously unjust to strike out the testimony of one party on motion of his adversary, while that of the latter was retained. In this view of the case, it is unnecessary to consider the question, discussed in the court below, whether the plaintiffs, as heirs of Ezra Spaulding, deceased, are to be regarded as his "representatives," within the meaning of the Code of 1860. (§ 399.)
The exceptions to the charge have no merit. The argument submitted to us by the appellants' counsel seems to assume that the jury were told by the court that the defendants were entitled to recover, even although they were in default. The charge is not liable to that construction. On the contrary, the judge instructed the jury that if Hallenbeck had failed to perform the conditions of the deed, in that case the deed became void, and the plaintiffs were entitled to recover. The accompanying instruction, that if the jury were satisfied from the evidence that the conditions of the deed had, in all respects, been substantially performed by the defendants, the plaintiffs were not entitled to recover, was unexceptionable. Substantial performance of the conditions, in all respects, is all that the grantors could require.
The charge that if the grantor was in fact satisfied with the manner in which he was treated, and so expressed himself, it was to that extent a waiver of a strict performance of the conditions, was also correct. It is not susceptible of the construction which the plaintiffs' counsel attempts to put upon it, to wit, that the grantor's expression of satisfaction was a waiver of a subsequent breach, or that his omission to express dissatisfaction precluded him from insisting on a performance of the condition. It was equivalent to saying to the jury that so far as the grantor expressed his satisfaction with the treatment he received, to that extent was such treatment a compliance with the condition, or accepted as such.
The judgment should be affirmed.
Judgment affirmed; LEONARD, J., not voting, and PORTER, J., taking no part in the case.