NOTE.-Conditions subsequent and covenants dis- | erected thereon is a condition subsequent. Ellis v.

The use of property conveyed may be restricted Courts will always incline to interpret the lan- by a condition, in the deed of conveyance, as to guage as a covenant rather than a condition sub-the structure to be erected thereon, or the busisequent. Board of Education of Normal School Dist. v. First Baptist Church, 63 Ill. 204; 4 Kent,

Mr. James C. Carter, for appellants: In the interpretation of deeds the language of the parties is to be taken according to its natural meaning; and where technical words are employed, it must be presumed that they are employed in a technical sense unless the context indicates the contrary.

did not make the title good. The undertaking of a seller to give a good title can be fulfilled only by showing a good title of record. The purchaser has a right to a marketable title; and this exists only when it appears by recorded instruments open to the inspection of all.

Langdell, Summary of the Law of Contracts, § 170; Murray v. Harway, 56 N. Y. 337, 343; Hellreigel v. Manning, 97 N. Y. 56, 60.

Shore v. Wilson, 5 Scott, N. R. 1037; Jarman's Rules, 16, 17; 2 Jarm. Wills, 842. This rule determines the character of the pro- In contracts for the sale of land, where a vision in question to be a simple condition sub- time is fixed for the completion, such time, sequent. It is drawn as such in the most pre- whether of the essence or not, is material in cise and approved form. Not one, merely, but equity as well as at law; and where no questwo, of the usual phrases for creating such a|tion arises except that of contract and its percondition are employed, as if for the purpose of leaving no doubt, and there is absolutely nothing in the context to start a suggestion that anything other than a condition was intended. Palmer v. Fort Plain & C. Plank Road Co. 11 N. Y. 376; Wright v. Tuttle, 4 Day, 326; 3 Com. Dig. 86 (Condition A. 2); Gold v. Judson, 21 Conn. 625; Chapin v. Winchester School Dist. 35 N. H. 450; Attorney-General v. Merrimack Mfg Co. 14 Gray, 612; Rawson v. Uxbridge School Dist. 7 Allen, 128.

The omission to declare the estate void on a breach of the condition, or to give a right of re-entry, has never been deemed in any way inconsistent with an intent to create a condition. See Touchstone, 121; Co. Litt. 331, 203; Doe v. Watt, 1 Man. & Ry. 694; Jackson v. Allen, 3 Cow. 220; Simpson v. Titterell, Cro. Eliz. 242; Gray v. Blanchard, 8 Pick. 284; Pembroke v. Berkley, Cro. Eliz. 384; Harrington v. Wise, Cro. Eliz. 486; Thomas v. Record, 47 Me. 500. The mere existence of the release on the day appointed for the completion of the purchase different parcels of the lands, and to secure to those entitled the enjoyment of easements or servitudes annexed by grant, covenant, or otherwise to private estates. Columbia College v. Lynch, 70 N. Y. 448, 26 Am. Rep. 622; Watertown v. Cowen, 4 Paige, 510.

Restrictions as to the use of a lot conveyed by the owner of a block, which are beneficial to all the purchasers of lots in the block, may be enforced by such purchasers, and cannot be released by the grantor. Raynor v. Lyon, 46 Hun, 227, 11 N. Y. S. R. 500.

So of stipulations in an indenture restricting building limits. Payson v. Burnham, 2 New Eng. Rep. 637, 141 Mass. 547.

A stipulation prohibiting the erection or use of buildings for stores, boarding houses, hotels or stables, without consent of the vendor, is enforcible by injunction. Winnepesaukee Camp-Meeting Asso. v. Gordon, 1 New Eng. Rep. 846, 63 N. H. 505.

Relief by injunction.

The fact that a penalty or forfeiture is imposed for doing a prohibited act is no obstacle to the interposition of equity by injunction. Watrous v. Allen, 57 Mich. 362, 58 Am. Rep. 368.

Equity will grant relief by injunction in case of covenants between the grantor and grantees, respectively, against the erection of any noxious business or trade upon the lot of a subsequent purchaser. Tallmadge v. East River Bank, 26 N. Y. 110; Niagara Falls International Bridge Co. v. Great Western R. Co. 39 Barb. 225.

So where land was sold to trustees of a land society, who covenanted that plaintiff should have the exclusive right of selling beer to any public house erected on the premises, a member of the society who acquired a portion of the land with

formance, if a purchaser is ready at the appointed time and demands performance by the vendor, and upon the failure of the latter, from whatever cause, to perform, demands repayment of his deposit, the vendor cannot afterwards enforce against the purchaser a specific performance.

Lloyd v. Collett, 4 Bro. Ch. 469, 4 Ves. Jr. 689, note (b); Pincke v. Curteis, 4 Bro. Ch. 329; Benedict v. Lynch, 1 Johns. Ch. 370; Dominick v. Michael, 4 Sandf. 374; Richmond v. Gray, 3 Allen, 25; Davison v. Jersey Co. 71 N. Ÿ. 333, 339; Bigler v. Morgan, 77 N. Y. 312, 319; Burwell v. Jackson, 9 N. Y. 535, 546; Judson v. Wass, 11 Johns. 525.

Messrs. Evarts, Southmayd & Choate, for respondents:

The restriction in the deed was a covenant or the reservation of an easement, and not a condition subsequent.

What the law formerly deemed a devise upon condition will now, in almost every case, be construed a devise in fee upon trust, and thus,

notice of the covenant, and erected a public house thereon, was restrained from supplying the same with his own beer. Catt v. Tourle, L. R. 4 Ch. 654.

Forfeiture of estate for breach of covenant. Mere nonperformance of a condition subsequent of a conveyance does not devest grantee's estate until grantor elects to declare a forfeiture, by entry for condition broken. Ellis v. Kyger, 7 West. Rep. 749, 90 Mo. 600.

Performance may be waived and the estate continue in grantee until he who has a right to insist upon performance elects to declare a forfeiture. 4 Kent, Com. 127; 2 Washb. Real Prop. 4th ed. 12; 1 Smith, L. C. 8th ed. 130: Memphis & C. R. Co. v. Neighbors, 51 Miss. 412; Kenner v. American Contract Co. 9 Bush, 202; Knight v. Kansas City, St. J. & C. B. R. Co. 70 Mo. 231.

A forfeiture results if the grantee or its assignee used the premises conveyed, for other than the stipulated use, where premises were conveyed to be used for the purpose of a street only. Carpenter v. Graber, 66 Tex. 465.

Although there is a penalty by way of forfeiture, complainant is not obliged to insist upon it. Hodson v. Coppard, 29 Beav. 4: Tulk v. Moxhay, 11 Beav. 577; High, Inj. § 701.

Forfeiture for manufacture or sale of liquors.

A condition in a deed that intoxicating liquors shall never be manufactured, sold or otherwise disposed of as a beverage in any place of public resort on the premises, and that if the condition be broken by the grantee his assigns, or legal representatives, the deed shall become null and void, and the title to the premises shall revert to the grantor, is not repugnant to the estate granted, nor unlawful as against public policy. Cowell v. Colo

rado Springs Co. 100 U. S. 55 (25 L. ed. 547); Plumb v., ment, from denying the corporate existence of his Tubbs, 41 N. Y. 442, a leading case.

wit, a condition that no part of the premises | Lenox and his associates in the trust referred should ever be used or occupied as a tavern. to received and held the properties. Whether this objection was sound and available to Weil is the question which is involved in this appeal.

A few months after Hogan's conveyance to Lenox and others, "Monte Alta" was conveyed to Mark by a deed; in which were joined, as After a careful consideration of the facts, and grantors, Hogan and wife and the said trusupon a review of the whole situation, I am un- tees. That deed recited the facts of the agreeable to find any serious difficulty in reading the ment of Hogan to sell to Mark, and of the clause in question as a covenant, whether we conveyance by Hogan and wife to Lenox and consider it on principles of strict law, or of others as trustees, subject to that agreement. common justice. Mere words should not be, It conveyed the fee of the premises, free of inand have not usually been, deemed sufficient to cumbrances, and with covenants of title and constitute a condition, and to entail the conse- warranty; but with the following provision, quences of forfeiture of an estate, unless from contained in the habendum clause, víz.: “Prothe proof such appears to have been the distinct vided always, and these presents are upon this intention of the grantor and a necessary under-express condition, that the aforesaid premises standing of the parties to the instrument. Nor shall not, nor shall any part thereof, or any should the formal arrangement of the words building or buildings thereon erected, or to be influence us wholly in determining what the erected, be at any time hereafter used or occuclause was inserted to accomplish; but, in this pied as a tavern or public house of any kind." as in every other case, our judgment should be The Hogans' grant was of their right, title, inguided by what was the probable intention, terest, dower and right of dower, etc., in or to viewing the matter in the light of reason. The the premises described; while that of Lenox operation of this clause, as contended for by and others was directly of the premises themthe appellants, would have been to effect a great selves. It is quite probable that the union of injustice; whereas if, as we read it, it was in- the Hogans as grantors was to perfect the rectended as a covenant for the protection of prop-ord title, which the absence from the records erty, no prejudice could accrue to anyone and the purpose in the original grant would be respected and preserved in all its integrity. I am aware of the difficulty which attends the discussion of the legal question involved in this case and also of the importance which is given to it, by the fact that the courts below have held the clause in the deed to be a condition subsequent; while they have enforced the performance of the agreement of purchase upon other grounds. I shall therefore briefly review the facts as they appear in the record before us, in order better to demonstrate that the conclusion to be drawn from them, as to the probable intention of the parties, is that the clause under consideration could only have been inserted as a covenant.

The premises in question were formerly part of a large estate, lying in the upper portion of New York Island, and known as "Monte Alta." That estate and an adjoining estate, known as "Claremont," were owned and occupied as farms and country residences by one Michael Hogan. In 1807 he entered into an agreement in writing with one Jacob Mark, for the sale to him of the Monte Alta estate for a sum of $16,000; and the agreement contained this clause: "Upon the special condition that no part of the land or buildings thereon should ever be used or occupied as a tavern." In 1811, four years afterwards, Hogan and wife deeded to Robert Lenox, Jacob Stout and John Wells, upon certain trusts, both of said estates,-that of Monte Alta, however, subject to the agreement with Mark. These facts are disclosed, not by the agreement and deeds themselves,for they do not appear to have been recorded and they were not produced,-but from subsequent deeds, which were made by these grantees, or trustees, of Hogan and the Hogans, in conveyance of the properties to others. We are without information as to the reason for the noncompletion of Hogan's agreement with Mark, from the year 1807, when it was made, until the year 1811; and we know nothing concerning the nature of the trusts, upon which

of their deed to Lenox and others might affect, and to prevent any question from being raised as to the validity of Mark's title. In the conveyance subsequently made, in 1812, of the Claremont estate, the grantors were the same as in that of Monte Alta and the deed was similar in form; but it did not contain the clause respecting the use of the premises, which I have quoted from the habendum clause in the deed of the Monte Alta property.

In 1816 a release of that restrictive clause was, as matter of fact, executed, and the title was thus freed from any question which might arise by reason of its existence; but as this release had not been recorded and was lost at the time of the sale and of the tender of the deed by the vendors, and was not discovered and recorded until about two years afterwards, and after the commencement of this suit, it cannot be considered in determining upon the right of Weil to reject the title when the deed was tendered to him. He was entitled to rest upon the state of facts, as it was proved to be, when he refused to accept the deed. In 1819 Lenox and others executed to Hogan an instrument, which, after reciting that they had settled and accounted with him, touching the trust property by him conveyed to them in 1811, "as far as the same hath been sold, ap propriated, collected, received or disposed of by them," assigned and conveyed to him whatever remainder there might be of the trust property; and Hogan by the same instrument released them from all claims respecting the execution of the trusts. In 1821 Joel Post became the owner of both of these estates and he and his heirs held the same from that time until the sale by the heirs in 1873.

These are all the material facts in the case. When this purchaser objected that the estate was subject to a common-law forfeiture, because of the condition subsequent reserved in the deed to Mark, the vendors answered that the tripartite deed to Mark did not reserve a condition, on the grant in fee, upon which a forfeiture would inure to the grantor or his

heirs in case a tavern should, at any time, be kept on the lands comprising the Monte Alta estate; but a covenant which, running with the land, would, while kept alive, prove an equitable protection against any injury from its breach, in favor of any subsisting interest, entitled to insist upon a performance of the cov

enant.

In that construction of the clause in the Mark deed, we think the plaintiffs were right, and, as that conclusion would dispose of the whole case, no other of the answers which they make in defense of their title need be considered.

1 understand the appellants' counsel to concede that his appeal must succeed on the sole point that the reservation pointed out in the deed created a condition subsequent. And, in fact, it must be so; for if it created a covenant the union of both of the estates in Joel Post in 1821 would have the natural and legal result of extinguishing the covenant.

Although the words of the clause in question are apt to describe a condition subsequent, reserved by a grantor, we are in no wise obliged to take them literally. In the consideration of what, by the use of these words, was imported into the conveyance, we are at liberty to affix that meaning to them which the general view of the instrument and of the situation of the parties makes manifest. Whether they created a condition or a covenant must depend upon what was the intention of the parties; for cove nants and conditions may be created by the same words. In order that a covenant shall be read from the words of an instrument, they need not be precise, nor technical, nor in any particular form.

they have frequently been inserted in conveyances, to maintain the eligible character of property adjoining the parcel conveyed, by protecting it against the creation of nuisances, or of offensive structures, or against the carrying on of an injurious or offensive trade, is a familiar fact. It seems unnecessary to cite from the opinions of judges, or of the writers upon this subject of jurisprudence; for there is a general consensus in opinion among them, that the question is one always open to the determination most consistent with the reason and the sense of the thing. Reference, whether it be to the earlier or later reports, fails to aid us in deducting from them a defined principle of construction. Many, if not most, of the early cases have been those turning upon the construction of clauses in leases, and, in each case, so far as the examination I have been able to give enables me to say, the court construed the clause as the circumstances and facts of that particular case seemed to demand.

I would not pretend to reconcile all the decisions which have been made upon the subject; but I readily extract the principle that technical words may be overlooked, where they do not inevitably evidence the intention of parties. I think the tendency of the law has been to assume towards this vexed question, as towards others, which have come down from the days of the old common law, a more scientific attitude. So, if the only reason for construing a clause is in the technical words which have been used, the court may disregard them in performing the office of interpretation. If we can construe this clause as an obligation to abstain from doing the thing described. which, by acceptance of the deed, became binding upon In Bacon's Abridgment (Covenant "A") it the grantee as an agreement, enforceable in beis said: "The law does not seem to have appro- half of any interest entitled to invoke its propriated any set form of words which are ab-tection, I think we are in conscience bound to solutely necessary to be made use of in creat-give that construction and thereby place ouring a covenant.'

selves in accord with that inclination of the

In Sheppard's Touchstone, pp. 161, 162, it is law which regards with disfavor conditions said: "There need not be any formal words, involving forfeiture of estates. In this conas 'covenant,' 'promise,' and the like, to nection it may be noted that there is no clause make a covenant on which to ground an action in the deed giving the right to re-enter for conof covenant; for a covenant may be had by ditions broken. While the presence of such a any other words.' clause is not essential to the creation of a conChancellor Kent in his Commentaries, vol.dition subsequent, by which an estate may be 4, *132, in speaking of whether a clause in a deed shall be taken to create a covenant or a condition, says: "Whether the words amount to a condition, or a limitation, or a covenant, may be matter of construction depending on the contract. The intention of the party to the instrument, when clearly ascertained, is of controlling efficacy; though conditions and limitations are not readily to be raised by mere inference and argument.' The Chancellor sums up the matter in this language: "The distinctions on this subject are extremely subtle and artificial and the construction of a deed, as to its operation and effect, will. after all, depend less upon artificial rules than upon the application of good sense and sound equity to the object and spirit of the contract, in a given

defeated, at the exercise of an election by the grantor or his heirs to re-enter, yet its absence, to that extent, frees still more the case from the difficulty of giving a more benignant construction to the proviso clause. The presence of a re-entry clause might make certain that which, in its absence, is left open to construction. The absence of such a clause may have its significance, in connection with the circumstances of the case and the intent to be fairly presumed therefrom.

Now the first significant feature of this case, which may be referred to in determining the intention, is the agreement between Hogan and Mark. That was the agreement by which the one was to sell and the other to buy "Monte Alta." In it was inserted a "special condition that no part of the land or buildings thereon should ever be used or occupied as a tavern." That was the agreement or understanding of both parties as to a restriction upon the use the premises might be put to. Then we are to presume, from what took place in the conveyance