Campau et al. v. Chene et al.

are to be received in payment of the one thousand pounds, and when all is paid, Campau or his heirs are bound to appear at the office of the register of the county, "and release the present mortgage in a legal manner."

It is difficult to perceive upon what clause the complainant can rely as furnishing a condition or evidence that it was intended the deed should depend upon a condition either subsequent or precedent. All and each of these different clauses can only be construed as personal covenants; there is an entire absence of any words creating a condition. By the first clause, there is an express covenant that the grantee will pay the $2,500 in a particular manner. The grantor takes this covenant or personal obligation in lieu of money in hand. Chene, by the second clause, assumes to be answerable for the debts of Campau, and if he fails to pay immediately, he assumes to be answerable for all damages and interest accruing therefrom; and this is taken in lieu of a condition, upon breach of which the grantor might re-enter. Why should Chene assume the debts from the time of receiving the deed, and agree to pay damages and interest if he did not pay? and why are they agreed to be his debts, if his title was to depend upon his first paying the debts of Campau, in the manner and to the extent provided? It is not provided, that in the event of his failing to pay, he shall forfeit his title, or that the grantor might re-enter.

The third provision (for the support of Campau) is not stated to be any part of the consideration of the deed. It is a simple engagement or covenant of Chene to support Campau, &c., besides the payment of the money. The undertaking may have grown out of the same transaction, but the deed does not make it a condition.

All these promises and covenants are made by Chene; they are not imposed as the terms and as the language of the grantor. To make them operate as a condition, they must not depend upon another sentence; and the words must be those of the grantor, and compulsory to enforce the grantee to do some act.. 2 Bac. Abr. 280; 15 Eng. C. L. Rep. 227; 2 Jacobs' Law Dic. 2; 2 Coke's Rep. 70; Sheppard's Touchstone, 119.

In the fourth provision, Campau reserves to himself the right to live with Chene, &c. In this there is no condition. The reservation is only of the privilege to live with Chene. It is no restriction to the

Campau et al. v. Chene̱ et al.

estate: it is a covenant, a mere personal right. This sentence contains the nearest approach to a condition or qualification that is to be found in the deed. The manner he was to be at liberty to employ his time, shows the matter rested in covenant, and might be coerced in a court of law. The same may be said of the succeeding provision, by which Chene covenants to support Archange.

But let us apply the rules furnished by the books, and ascertain if they are such that, when applied to the construction of this deed, they will lead to a different conclusion. No precise technical words are necessary to make a condition. It is, however, necessary that it should appear from the face of the deed, to have been the intention of the grantor to create a condition, and whether the words amount to a condition, or a limitation, or a covenant, depends upon the construction of the contract. 4 Kent's Com. 132; 2 Caine's R. 352; Willes' R. 156.

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. 4 Kent's Com. 132.

The words usually employed in creating a condition, are, "upon condition;" and Lord Coke says this is the most appropriate expression, or the words may be "so that," "provided," "if it shall happen.” Apt words of limitation are "while," "so long as," "until,” “ during," &c. 4 Kent's Com. 133, note a.

A condition, then, is a qualification, or restriction annexed to a conveyance of land, whereby it is provided, that in case a particular event does or does not happen, or in case the grantor or grantee does or omits to do, a particular act, an estate shall commence, be enlarged or defeated. 2 Cruise's Digt. 2.

In case of doubt, all intendments are made against the grantor, and a condition which destroys or defeats an estate or grant, is to be construed strictly against those for whose benefit it is intended.

Com. 125; 2 Bac. Abr. 286; 2 Cruise's Digt. 27; 29 Eng. C. L. Rep. 442; 1 Sumner 440; 17 Johnson's Rep. 66; 8 N. H. Rep. 477; 21 Eng. C. L. Rep. 398; 42 id. 693. And if it be doubtful whether a clause in a deed be a covenant or a condition, the court will incline against the latter construction. 4 Kent's Com. 127. To create a con

Campau et al. v. Chene et al.

dition in a deed, a clause of re-entry, or a provision that the estate shall cease and be void, is required. 3 Com. Digt. 87, 88. Not so as to a lease, 4 Kent's Com. 123, if the estate is declared to be void upon non performance, or if in such case the lessor may re-enter. 8 Cowen 295; 1 Bac. Abr. 280, 281.

But words may amount to a condition when, without such construction, the party would have no remedy, but not when there are express covenants to which recourse may be had. 2 Bac. Abr. 287. Paying and yielding rent held not a condition. 2 Bac. Abr. 287, 290; 3 Com. Digt. 88; 4 Cruise's Digt. 375; Sheppard's Touchstone, 118, 119; 9 Eng. C. L. Rep. 296; 27 id. 129.

Applying these rules to these provisions, and they seem to make it more certain that they do not separately or collectively create a condition, but that they are covenants.

But the sixth provision, in my opinion, goes far to settle the proper construction to be put upon this deed. The very circumstance of setting forth the lien shows it was never intended to create a conditional estate, for if it was intended to be a conditional estate, the grantor would not have made such a provision; he would have provided a clause of re-entry; and it is to be remarked, that the lien has reference entirely to the consideration, and not to the support of Campau and his daughter. All the covenants are the language of the grantee, except one; and even if the last covenant be considered as the language of both parties, it shows that a mortgage only was intended by both parties, and in case of payment, Campau was bound to give a full receipt, and to release the lien in the register's office. This would not have been necessary, if payment and fulfilment was only required to perfect the deed. If the covenant against alienation could be considered a condition, it would be void. For a condition annexed to a conveyance in fee or devise, that the purchaser or devisee should not alien, is unlawful and void. 4 Kent's Com. 126.

In the case of Lessee of Foster v. Dennison, 9 Ohio R. 121, the court was required to construe an instrument by which the parties acknowledged payment of the consideration, and obliging the grantor to forever quit claim land; sealed, acknowledged, recorded, and possession released to the grantor, and held for thirty-five years; and the court held it to be a conveyance; that this was the manifest intent of

Campau et al. v. Chene et al.

the parties, and the law would endeavour so to interpret the proceedings of the parties as to work this effect.

The views we have expressed in regard to the covenants in the deed, are illustrated and fully supported by the case of Pownal v. Taylor, decided in the Virginia court of appeals, 10 Leigh's Rep. 179. The owner of a tract of land conveyed it to his nephew in fee, subject to the maintenance and support of the grantor and his sister. The deed contained a covenant by the grantee for such maintenance and support, and declared that the land was to be held therefor, into whose hands soever it might come. But the deed did not state that it was upon condition that such maintenance and support should be furnished, nor was there any clause providing for a re-entry by the grantor. Held, the provision for maintenance and support constituted merely a charge upon the estate, which might be enforced in equity-not a condition for breach of which the grantor could re-enter, as of his former legal estate. In that, as well as in this case, there was a provision for a third person, and it was held, that the third person (the sister) instantly acquired a beneficial interest, which she might have enforced by bill in equity. But if the provision was a condition then for the breach, the grantor might re-enter, defeat the estate, reinvest himself with his original title, and annihilate the vested solemn act conferred upon his sister. This cannot be, unless the grantor had expressly reserved the right to re-enter upon failure of the grantee to fulfil the purposes of the grant. These last remarks apply with full force to the provision for Archange in this deed. See 18 Pick. 248.

interest which he had by his own

The mutual covenants in this case go only to a part of the consideration, and a breach of that part may be paid for in damages. In such case it has been held, they are to be regarded as independent. 7 John. R. 244; 1 Ohio 154; 10 Pick. 507; 3 Peters 346; 1 H. Black. 273; 5 Wendell 496;-particularly when they regard real estate, restrictions on which are odious in law. Sheppard's Touchstone 133.

We are therefore of the opinion upon the question of lapse of time, that complainants' bill cannot be sustained: and also, upon the question raised upon the deed, we are of the opinion that it is neither a deed of trust, nor a deed upon condition, but that it is an absolute deed, incorporating in it a lien, in the nature of a mortgage, to the grantor for the consideration money, &c.

Campau v. Gillett.

Let it be so certified to the circuit court for Wayne county.

Certified accordingly.

CAMPAU V. GILLETT.

A license was granted to an administratrix to sell real estate for the payment of debts, under an act of the late territory of Michigan, entitled an act directing the settlement of the estates of persons deceased, and for the conveyance of real estate in certain cases, adopted 27th July, 1818. The license was granted on the 12th January, 1827, but the sale did not take place until the 7th July, 1831. The sale was held to be void, as more than four years had elapsed between the ganting of the license and the sale-the statute of limitations then in force, barring all claims against the estate after four years.

Where a license was granted by a county court to an administratrix to sell real estate, and after the granting of the license and before the sale, the law giving the court jurisdiction was repealed, the sale was held to be void the repeal of the law being a revocation of the license.

CASE reserved from Wayne Circuit Court. Ejectment by Henry Campau, son and heir at law of Henry Campau, deceased. The defence was a deed of the premises in controversy, dated 8th August, 1831, from the administratrix on the estate of Campau, deceased, to Peter J. Desnoyer, whose title the defendant held. Campau died in 1822, and his widow took out letters of administration on his estate the same year, or the year following, and, on the 12th January, 1827, the county court of Wayne county, on her application, licensed her, as administratrix on the estate, to sell the premises in question. On the 8th July, 1831, having been regularly advertised, they were sold at public auction, and purchased by Desnoyer, to whom they were conveyed by the administratrix. The act giving the county court jurisdiction to grant licenses in such cases, entitled "An act directing the settlement of the estates of persons deceased, and for the conveyance of real estate in certain cases," adopted 27th July, 1818, was repealed in 1829, previous to the sale. Ses. L. 1829, p. 86.