This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
Phillips v. Doelittle, 8 Mod. 345; Sheets v. Selden, 7 Wall. (U. S.) 416, 19 L. Ed. 166; Abrams v. Watson, 59 Ala. 524; Atkins v. Chil-son, 11 Mete. (Mass.) 112; Shriro v. Paganucci, 113 Me. 213, 93 Atl 358; Planters' Ins. Co. v. Diggs, 8 Baxt. (Tenn.) 563; (but see Matthews v. Crofford, 129 Tenn. 541, 167 S. W. 695; Moran v. La-vell, 32 R. I. 338, 79 Atl. 818).
8. See 2 Tiffany, Landlord & Ten. Sec. 194 1 (3).
9. Walker v. Wheeler, 2 Conn. 299; Sanborn v. Woodman, 5 Cush. (Mass.) 36; Hart v. IIo-miller, 20 Pa. 248; Carpenter v. Westcott, 4 R. I. 225; Rogan V. Walker, 1 Wis. 527; Grimston v. Bruce, 1 Salk. 156, 2 Vem. 594; Wheeler v. Whithall, Freem. Ch 9, Eq. Cas. Abr. 360.
10. McCaskill v. Union Navar Stores Co., 59 Fla. 571, 52 So. 961 (dictum); Dodsworth v. Pods worth, 254 111. 49, 98 N. E. 279 refused, on the ground, in one ease, that the breach was persistent and culpable,11 in another, that it was impossible for the tenant to pay the taxes, these having been paid by the sale,12 and in another that to grant relief would cast on the landlord the onus of defeating the sale.13
As to conditions involving, not the payment of an ascertained, or readily ascertainable, sum of money, but the performance of some other act, or the adoption of some particular course of conduct, "collateral conditions," as they are occasionally called, the general rule of the English courts is, apart from statute, to refuse relief, except in a clear case of mistake or accident.14 So relief has there been refused when the asserted forfeiture was for breach of a stipulation not to assign or underlet without the landlord's consent,15 not to permit the existence of a way over the land,16 to repair the premises,17 to make improvements,18 or to insure,19 the theory being, it seems, that it is in such cases impossible to ascertain the amount of damage caused by the breach, and consequently impossible to compensate the grantor or lessor for any inconvenience or risk to which he may have been subjected thereby, even if he has not suffered actual pecuniary damage. In this country, while occasionally the courts have indicated a tendency in favor of the rule of the English cases in this regard,20 they have ordinarily shown a more liberal attitude as regards the grant of relief.21 They have at times up-plied the doctrine that equity will relieve from the results of accident or mistake to cases in which the default was the result merely of lack of knowledge or understanding of the terms of the condition;22 and they tend to regard one as entitled to relief if the breach was not wilful, meaning thereby, if the person seeking relief had at the time no intention to violate the condition, or was ignorant of the fact that Le was so doing.23
Kanakanui v. De Fries, 21 Hawaii 123; Tibbetts v. Cate, 6G N. H. 550, 22 Atl. 559; Giles v. Austin, 62 N. Y. 486; Noyes v. Anderson, 124 N. Y. 175, 21 Am. St. Rep. 657, 26 N. E. 316; Abrahams v. Tappe, 60 Md. 317 (semble); Planters' Ins. Co. v. Diggs, 8 Baxt. (Tenn.) 563, Buckley v. Beigle, 8 Ont. 85.
11. Bacon v. Park, 19 Utah, 246, 57 Pac. 28.
12. Gordon v. Richardson, 185 Mass. 492, 69 L. R. A. 867, 70 N. E. 1027; See Schimelfenig v. Howell, 172 111. App. 201.
13. Kann v. King, 204 U. S. 43, 51 L. Ed. 360.
14. Hughes v. Metropolitan Ry. Co., 2 App. Cas. 439; Bargent v. Thomson, 4 Giff 473. In Barrow v. Isaacs (1891), 1 Q. B. 417, where a breach of a covenant against subletting without consent was due to forgetfulness on the part of the tenant's agent, the court refused to grant relief, for the reason that this was not a mistake, or if it was, it was the result of negligence.
15. Wafer v. Mocato, 9 Mod. 112; Barrow v. Isaacs (1891), 1 Q. B. 417.
16. Uescarlett v. Dennett, 9 Mod. 22.
17. Hill v. Barclay, 18 Ves. Jr. 56; Bracebridge v. Buckley, 2 Price 200, 215; Croft v. Goldsmid, 24 Beav. 312.
18. Nokes v. Gibbon, 3 Drew. 681.
19. Rolfe v. Harris, 2 Price, 206, note; Green v. Bridges, 4 Sim. 96.
20. Sheets v. Selden, 7 Wall. 416, 19 L. Ed. 166; O'Byrne v. Jebeles Colias Confectionery Co., 165 Ala. 183. 51 So. 633; Par-sons v. Srnilie, 97 Cal. 647, 32 Pac. 702; Farmers Pawnee Canal Co. v. Pawnee Water Storage Co., 47 Colo. 239, 107 Pac. 286; Brink v. Steadman, 70 111. 241; Gordon v. Richardson, 185 Mass. 492, 69 L. R. A. 867, 70 N. E. 1027; Roberts v. Geis, 2 Daly (N. Y.) 535. Powers Shoe Co. v. Odd Fellows Hall Co., 133 Mo. App. 229, 113 S. W. 253; Maginnis v. Knickerbocker Ice Co., 112 Wis. 385, 69 L. R. A. 833, 88 N. W. 300.
21. See Paschall v. Passmore, 15 Pa. 295; Hagar v. Buck, 44 Vt 285, 8 Am. Rep. 368; South Penn Oil Co. v. Edgell, 48 W. Va. 348, 86 Am. St. Rep. 43. 37 S. E. 596; Donnelly v. Eastes, 94 Wis. 390, 69 N. W. 157.
22. Dodsworth v. Dodsworth,
254 111. 49, 98 N. E. 279; Mactier v. Osborn, 146 Mass. 399, 15 N. E. 611, 4 Am. St. Rep. 323; Lun-din v. Schoeffel, 167 Mass. 465, 45 N E 933; Tibbetts v. Cate, 66 N. H. 360, 22 Atl. 559; South Penn Oil Co. v. Edgell, 48 W. Va. 348, 86 Am. St. Rep. 43, 37 S. E. 596. That the default was due to gross negligence excludes any possibility that it was due to accident or mistake. Kann v. King, 204 U. S. 43, 51 L. Ed. 360.
23. See Dodsworth v. Dodsworth, 254 111. 49, 98 N. E. 279; Sanborn v. Woodman, 5 Cush. (Mass):36; Tibbetts v. Cate, 66 N. H. 360, 22 Atl. 559; Bacon v. Park, 19 Utah 246, 57 Pac. 28; Henry v. Tupper, 29 Vt. 358; Wheeling & E. G. R. Co. v. Town of Triadelphia, 58 W. Va. 487, 4 L. R. A. (N. S.) 321, 52 S. E. 499; Maginnis v. Knickerbocker
Occasionally the matter of granting relief against forfeiture is referred to as one of discretion as regards the particular case24 and sometimes the disproportion between the loss to the grantor resulting from the breach and the loss to the grantee resulting from the forfeiture is regarded as a consideration in favor of relieving the latter.25 Occasionally, moreover, the courts have indicated a disposition to be guided in this regard by the consideration of the propriety of a strict enforcement of the particular class of condition in order properly to secure the lessor from imposition on the part of the lessee, as for instance a condition in an oil or gas lease requiring prompt development of the property.26
That the grant of relief would cause actual loss, or decided probability of loss, to the grantor or lessor seeking relief, is no doubt a strong reason for refusing relief,27 and a probability that the lessee, if relieved, would, by reason of insolvency or otherwise, be guilty of another breach of the same condition28 or of other stipulations of the lease29 has also been so referred to. Apart from the question of actual loss to the grantor or lessor by the breach of condition, the fact that the breach did not in any way increase his risk of loss has been regarded as a consideration in favor of granting relief.30
Ice Co., 112 Wis. 385, 69 L. R. A. 833, 88 N. W. 300.
24. Henry v. Tupper, 29 Vt. 358; Coventry v. McLean, 21 Ont. App. 176.
25. Springfield & N. E. Traction Co. v. Warrick, 249 111. 470, Ann. Cas. 1912A 187, 94 N. E. 933; Lundin v. Schoeffel, 167 Mass. 465, 45 N. E. 933; Hagar v. Buck, 44 Vt. 285, 8 Am. Rep. 368; Stevens v. Pillsbury, 57 Vt. 205, 52 Am. Rep. 121; South Penn. Oil Co. v. Edgell, 48 W. Va. 348, 86 Am. St.
Rep. 43, 37 S. E. 596.
26. Brown v. Vandergrift, 80 Pa. 142; Munroe v. Armstrong, 96 Pa. 307; Hukill v. Guffey, 37 W. Va. 425, 16 S. E. 544.
27. Rann v. King, 204 U. S. 43, 51 L. Ed. 360.
28. Dunklee v. Adams, 20 Vt. 415, 50 Am. Dec. 44.
29. Sunday Lake Min. Co. v. Wakefield, 72 Wis. 204, 39 N. W. 136.
30. Lundin v. Schoeffel, 167 Mass. 465, 45 N. E. 933, referred
In so far as the grantor or lessor by his conduct induces the grantee or lessee to believe that a strict performance of the covenant or condition will not be insisted on, and he afterwards attempts to enforce a forfeiture for a breach which he has thus induced, equity may relieve on the ground of fraud or surprise.31 Such conduct by the grantor or lessor may also, as was before stated,32 be regarded as involving a waiver of the condition.
While it has been said that equity will not relieve in the case of breach of a condition precedent, as distinguished from a condition subsequent,33 it appears that it may do so in case the breach consists in the non payment of money at a stipulated time, or if the breach of condition is otherwise such as to admit of compensation, and compensation is made.34