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Moore v. Williams

23 Abb. N. Cas. 404 Court N. Y. Court of Appeals ; English

Delivered by Earl, J.

Contents

Majority

p. 404
MOORE v. WILLIAMS.
N. Y. Court of Appeals ;
October, 1889.

Headnote

1. Money received, paid out, etc., under executory contract to purchase.] A purchaser under an executory contract for real property may maintain an action of a legal nature, to recover back his. deposit on the contract, and expenses incurred in the examination of the title, where the title tendered is so doubtful that equity would not compel him to accept it in an action for specific performance.[1]
2. Vendor and purchaser ; good title.] The right of a purchaser under an executory contract for the sale of land, to an indisputable title, clear of defects and incumbrances, does not necessarily depend on. the agreement of the parties, but is given by the law.
3. The same; u>hat constitutes a good title.] A good title means, not merely a title valid in fact, but a marketable title; one which can, again be sold to a reasonable purchaser or mortgaged to a person of reasonable prudence, as a security for a loan of money.
4. The same; as to title the defeats of which can be cured only by-oral evidence.] A purchaser will not generally be compelled to> take a title when there is a defect in the record title which can be cured only by a resort to oral evidence, or when there is an. apparent encumbrance which can be removed or defeated only by such evidence.
5. The same distinction between good and marketable titles.] Since the union in this State of legal and equitable jurisdiction in the same courts, and the right given to set up equitable defences in legal actions, there is no longer any reason—whatever foundation it may once have had—for the rule that the distinction between good and marketable titles is peculiar to courts of equity alone.
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<5. The same.] Where a purchaser sought to recover back his deposit of purchase money, paid under an executory contract for the sale of land, and his expenses of examining the title, on the ground that the title was defective by reason of a judgment recorded against a prior owner, and which was an apparent lien on the land, the fact that it may be shown by extrinsic evidence that the land was in fact held by such prior owner as the property of a firm of which he was a member and not individually, and that therefore the judgment was not a lien thereon, will not defeat the action, and the burden of removing the cloud upon the title will not be cast upon the purchaser. Recitals in the deed from such prior owner of the existence of the trust do not bind and are not evidence against the judgment creditor who stands as a prior encumbrancer.
This action was brought by Maurice Moore against Perry P. Williams and William H. Guión, Jr., in the Superior ‘Court of the City of New York, to recover back a deposit of purchase money on a contract for the sale of lands by the •defendants to the plaintiff, and for expenses incurred by plaintiff in the examination of the title, on account of the failure of the defendants to convey to plaintiff a good and marketable title. The action was tried before the court and ■a jury and resulted in a judgment in plaintiff’s favor, entered upon a verdict by direction of the court for both of such items. Such judgment was affirmed on appeal to the general term, and this appeal is by a defendant from such judgment of affirmance.
The facts are fully stated in the opinion.
G. Zabriskie (Stephen G. Williams, attorney) for appellant.
Maurice Cohen (Davis, Cohen & Mc Williams, attorneys) for respondent.

The defendants, describing themselves as trustees, on December 8, 1884, entered into a written contract with the plaintiff to sell to him a lot of land, known as num

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ber 247 Fulton street, in the city of Brooklyn, for the sunt' of $25,000. The plaintiff, at the time of executing the contract, paid upon the purchase price the sum of $250, and he was to pay $2,250 more upon execution and delivery to him of the deed on January 15,1885, and he was to take the lot,, subject to a mortgage thereon for $22,500. The defendants agreed to give him a proper deed of bargain and sale for'the-conveyance, and assuring to him the fee simple of the lot,, subject to the incumbrance of the mortgage The plaintiff' subsequently refused to complete his purchase on the ground' that the title tendered to him By the defendants was not clear and perfect, such as he was entitled to receive under the-contract, and he commenced this action to recover the installment of $250 paid by him, and $406.14, the amount paid by him to counsel for examining the title.

The title came to the defendants from William H. Guión, by a deed dated August 1, 1884, which recites that the firm of Williams & Guión, in liquidation^ indebted to the estate of John S. Williams, deceased, in the sum of $105,000 and1 interest from August 2, 1882, and that Guión and the firm, are desirous to receive the payment thereof; and also contains the following recital: “ Whereas the said William EL Guión is seized of the lands and premises hereinafter described in his own name, but in the right of and for the-use and benefit of the said firm of Williams & Guión. Then by apt and proper words the deed conveys the premises in question, with other real estate, to the defendants in. trust to sell the same and pay the recited indebtedness out of the proceeds. Guion’s title to the lot came from Anson B. Moore and George E. Apsley, who conveyed the sámete him by a deed dated, acknowledged and recorded in February, 1883. While the title was thus in Guión, on February 2, 1884, Domas Barnes recovered and docketed a judgment against him for $4,035.14, and that judgment became an apparent lien upon the lot.

The claim of the plaintiff is that on account of the existence of that judgment the defendants were unable to give-

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him such a title as he had the right to demand, and that therefore they could not perform their contract, and that he was entitled to recover the amount of his payment and the expense of examining the title. The defendants claim and give evidence tending to establish that Guión took title to the lot for the firm of Williams & Guión, and paid for the same with firm property, and that the lot at the time of the recovery of the judgment, although the title thereof stood in the name of Guión, was in fact, as between him and the firm, the property of the firm ; and they therefore contend that the judgment never became a lien on the lot, and that the title tendered to the plaintiff in performance of their contract was in fact perfect.

The defendants attempted to get Barnes to release the-lien of his judgment upon the lot, but he refused to do so,, and it still remains an apparent lien thereon. There is no-record or document which precludes Barnes from enforcing-his judgment against the lot. The recitals in the deed of Guión to these defendants do not bind him, and are not evidence against him, a prior incumbrancer. All the evidence to defeat his lien rests in parol and depends upon the memory of living witnesses. Whenever Barnes attempts to enforce his lien against the lot, he can be defeated only by a resort to the evidence of such witnesses, who may then be dead or inaccessible. He may at any time within ten years issue execution upon his judgment and sell the lot, and after the lapse of many years the purchaser at the execution sale may bring an action of ejectment to recover the lot, and the burden would be upon the defendant in that suit to establish by parol evidence the invalidity of the title of such purchaser.

We will assume that the lot, while the title stood in the name of Guión, actually belonged to the firm of Williams & Guión, that thus the defendants actually had a good title to the lot and that the judgment was not in fact a lien thereon. But is a purchaser bound to take a title which he can defend only by a resort to parol evidence, which time, death

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or some other casualty may place beyond his reach ? By the express terms of the contract of sale, the plaintiff was entitled to a deed conveying and assuring to him the lot in fee simple ; and by a fair construction of the language used, we think he was entitled to the lot free from any incumbrance except the mortgage specified. The express stipulation that he was to take the lot subject to an incumbrance specified shows that in the minds of the parties there was to be no other incumbrance upon the lot. But aside from the language used in the contract it is familiar law that an agreement to make a good title is always implied in executory ■contracts for the sale of land, and that a purchaser is never bound to accept a defective title unless he expressly stipulates to take such title knowing its defects. His right to an indisputable title clear of defects and incumbrances does not depend upon the agreement of the parties, but is given by the law (Sugden on Vendors (13 ed.) 14; Rawle on Cov. 430 ; Burwell v. Jackson, 9 N. Y. 535 ; Delevan v. Duncan, 49 Id. 485). Within the meaning of this sale, at least according to the decisions in this State, a good title means, not merely a title valid in fact, but a marketable title which ■can again be sold to a reasonable purchaser or mortgaged to .a person of reasonable prudence as a security for the loan of money. A purchaser will not generally be compelled to fake a title when there is a defect in the record title which •can be cured only by a resort to parol evidence, or when there is an apparent incumbrance which can be removed or ■defeated only by such evidence; and so far as there are any •exceptions to this rule they are extraordinary cases, iii which it is very clear that the purchaser can suffer no harm from the ■defect or incumbrance. In Swayne v. Lyon, 67 Pa. 436 , :Sharswood, J., said: “ It has been well and wisely settled that under a contract for the sale of real estate, the vendee has the right, not merely to have conveyed to him a good but an indubitable title. Only such a title is deemed marketable, for otherwise the purchaser may be buying a law suit which will be a very severe loss to him both of time and
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money, even if he ultimately succeeds. Hence it has been ■often held that a title is not marketable where it exposes the party holding it to litigation.” In Dobbs v. Norcross, 24 N. J. Eg. 327, it was held that “ every purchaser of land has a right to demand a title which shall put him in all reasonable security and which shall protect him from anxiety, lest annoying, if not successful suits be brought against him, ■and probably take from him or his representatives, and upon which money was invested. He should have a title which shall enable him, not only to hold his land, but to hold it in peace, and if he wishes to sell it, to be reasonably ■sure that no flaw or doubt will come up to disturb its marketable value.”

If the plaintiff had been a purchaser at a judicial sale ■and this had been a proceeding against him to compel him to take the title, or a proceeding by him to be relieved from his purchase and to have his deposit refunded, it cannot be doubted that the title would have been held so defective or doubtful that the court would have granted him relief (Jordan v. Poillon, 77 N. Y. 518 ; Fleming v. Burnham, 100 Id. 1; Toole v. Toole, 112 Id. 333 ; Ferry v. Sampson, 112 Id. 415). If the vendors here had brought an action ■against the vendee to compel specific performance of this ■contract, it is equally clear that they would have failed in the action. The court would not compel the vendee to take the title with the cloud of this incumbrance resting thereon (Marlow v. Smith, 2 Peere Williams, 198, 201 ; Slope v. Fish, 2 Ves. & Beames, 149 ; Shapland v. Smith, 1 Browns Ch. R. 75 ; Jeffries v. Jeffries, 117 Mass. 184 ; Seymour v. De-Lancey, Hopkin’s Ch. 436 ; Hinckley v. Smith, 51 N. Y. 21 ; Freetly v. Barnhart, 51 Pa. 279 ; 3 Pomeroy's Eg. Juris. ,§ 1405).

But this is an action at law and it has sometimes been held that the distinction between good and marketable titles is peculiar to courts of equity, that it is unknown in courts •of law, and that there the question is simply, is the title good or bad ? The earliest case which has come to our attention

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holding such a doctrine is Romilly v. James, 6 Taunton,. 263, 274, decided in 1815. That was an action to recover back the deposit paid on a contract for the purchase of lands upon the alleged insufficiency of the title tendered, and there-Gibbs, O. J., said : “It is said that the plaintiff will have made out his claim to recover back his deposit if a cloud is-cast on the title. That is not so in a court of law; he must stand by the judgment of the court as they find the title to-be whether good or bad ; and if it be good in the judgment of a court of law he cannot recover back his deposit. If lie-had gone into a court of equity, it might have been otherwise. I know a court of equitj-- often says, this is a title-which, though we think it available, is not one which we will compel an unwilling purchaser to take ; but the distinction is not known in a court of law.” In that case, however there was no question of fact depending upon parol evidence.. The sole question was one of law whether a devisee took a defeasible fee simple with an executory devise over, or an estate tail, and the court held that he took an estate tail, and that therefore the vendor could as matter of law make a good title. The vendor clearly had such a title as a court of equity would now compel a purchaser to take. In Sugden on Vendors (13 ed. 332), it is said: “A court of law can of course decide upon the validity of a title, however ambiguous or doubtful the construction may appear to be. Whether courts of law were at liberty to follow in the footsteps of equity and to hold that a title may be too doubtful to be forced on a purchaser, is a question upon which eminent judges have differed with each other, and even, with themselves. But it appears to be ultimately settled that courts of law cannot adopt the equitable rule, and are bound to decide the legal question upon which the right to recover must depend.” The learned author here evidently had in mind titles depending upon disputed questions of law, which a court of law could certainly and finally solve, but not titles depending upon questions of fact to be solved by parol evidence of witnesses, and which, in the absence of the parties
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to be bound, could never be said to be finally settled ; and he cites as authority that a purchaser will be entitled to a marketable title at law: Hartley v. Pehall, Peake's N. P. C- 131; Wilde v. Fort, 4 Taunt, 334; Curling v. Shuttleworth, 6 Bing. 121 ; and as authority that he is entitled at law to-only a good title, although not marketable : Boyman v. Gutch, 7 Bing. 379 ; Oxenden v. Skinner, 4 Gwil. 1573; Maberley v. Robins, 5 Taunt. 625; Romilly v. James, 6 Id. 274.

In Jeakes v. White, 6 Ex. 873, decided in 1851, the-action was brought to recover the expenses incurred by the-plaintiffs in investigating the defendant’s title to mortgage certain lands, and the plaintiffs recovered. Pollock, O. B.,. writing the opinion of the court said : “ The question really is, whether this was such a title as a vendee has a right to-expect, and which would justify him in concluding the purchase. We think that, where a question arises between-parties who are about to enter into the relationship of vendor and vendee, as to the meaning of a good or sufficient title,, there must be such a title as the court of chancery would adopt as a sufficient ground for compelling specific performance.” In Simmons v. Haseltine, 5 C. B. N. S. 554, decided in 1858, after the 13th edition of Sugden on Tendors was published, it was held that when the ability of the-vendor to make a good title to a purchaser of the premises-sold depends upon a doubtful question of fact or of law, the title will not be deemed a good or sufficient title as between vendor and vendee. There A. bought certain premises, the description of which in the particulars included a stall, which was claimed by the purchaser of the adjoining house under the same vendor, and it was doubtful as a matter of fact whether the description had been corrected at the time of the sale to A., so as to exclude the stall, and as a matter of law whether the stall was included in the conveyance to the purchaser of the adjoining premises, and a court of equity had refused to decree specific performance against A., and it was-held that A. was entitled to receive back his deposit and interest, and the expenses of investigating the title, in an

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action at law against the vendor. So we do not perceive liow it can be said that the law has been finally settled in England according to the text of Sugden.

In this State in O’Reilly v. King (2 Robertson, 587); Methodist Episcopal Church Home v. Thompson (52 Super. Ct. 321); Bayliss v. Stimson (53 Id. 225), the ¡New York ■superior court held that in an action by a vendee of real ■estate against the vendor, to recover back a deposit made on account of the purchase price, it was not sufficient for him to show that the title tendered was doubtful, but that he was bound to show that it was in fact bad, and that the doctrine of equity courts as to marketable titles had no application. The latter ease was affirmed in this court, not upon the law however as announced in the court below, but upon the ground that the objections to the title were baseless. There is also some countenance for the doctrine of the superior court cases cited in the opinion of Folger, J., in Murray v. Harway (56 dV. Y. 337). There, however, the learned judge •was of opinion that upon the facts a court of equity would have ■adjudged specific performance against the vendee, and it is ■clear that whenever such is the case the vendee cannot, in a court of law, rescind the contract and recover back a payment of purchase money. It has been settled in Pennsylvania that a vendee can defeat an action at law, brought by ■the vendor for an installment of purchase money under an •executory contract for the sale of lands, by showing not that the title tendered is actually bad, but that it is doubtful ■and unmarketable (Colwell v. Hamilton, 10 Watts, 413 ; Ludnick v. Huntzinger, 5 Watts & S. 51 ; Swayne v. Lyon, 67 Penn. 436 ). In Allen v. Atkinson ( 21 Mich. 351 ), an ■action at law, Cooley, J., said: “ The vendee had an undoubted right to a good title, and to a deed with proper •convenants; and he had a right also to insist that the title should be a marketable one, not open to reasonable objection.”

The case of Methodist Episcopal Church Home v. ‘Thompson {supra) came to this court, and the judgment

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was here affirmed upon the facts ( 108 N. Y. 618 ). But the doctrine of the superior court cases above cited, as well as that of Romilly v. James (supra), was distinctly repudiated. Beckham, J., writing the opinion here, said : “ We disagree with the court at General Term upon the necessity in such a case as this of showing that the title is absolutely bad. We think that if there was a reasonable doubt as to the vendor’s title, such as to affect the value of the property, and to interfere with the sale of the land to a reasonable purchaser, the plaintiff’s cause of action would be sustained.” While \vhat was thus said was not necessary to the decision of that case, it is more than a mere dictum. The opinion, concurred in by the entire court, was written to set right what was deemed an erroneous view of the law taken in the court below, and which might otherwise have been supposed from the opinion or the judgment to have received the approval of this court.

It has sometimes been said that the reason why a court of equity will not compel an unwilling vendee of real estate to take a title which although good is not marketable, is that such a court is not competent to decide, or is at least unwilling to decide,-doubtful questions of law and fact in such cases, at the hazard of what might afterwards be determined in a court of law (Rawl, on Covenants, 433, note). Courts of law with jurors as triers of the issues of fact were deemed more competent than courts of equity to solve the doubts. But whatever foundation the reason may once have had it has none now in this State since the union of law and equity in the same courts, and since equitable defenses can be set up in legal actions. Courts in equitable actions are just as competent here to deal with both the law and the facts of a case as they are in legal actions. If the conscience of a judge in an equitable action needs information, he can obtain the findings of a jury by submitting the issues of fact to them.

So now there is no longer any reason whatever for the distinction which some judges have made as to marketable

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titles in courts of law and equity. If a vendor cannot by an •action for specific performance compel a vendee to take a conveyance of land because the title is doubtful and unmarketable, why should he be permitted to compel him in :an action at law to pay for the land, both actions being triable in the same tribunal ? "Why should a purchaser be -compelled to pay for a title which he is not bound to take ? If a vendee who has paid part of the purchase money sues •to recover it back because the title tendered to him is ■unmarketable, the vendor in the same action can set up as an -equitable defense or counterclaim a cause of action for the -specific performance of the contract (Moser v. Cochrane, 107 N. Y. 35 ); and it would be quite an absurd administration -of the law if the same court, at the same time and upon the •same evidence, should deny the defendant specific performance on the ground that his title was doubtful and unmarketable and yet permit him to retain the purchase money because his title was in fact good although doubtful and unmarketable.

Dealings in real estate generally involve large pecuniary values, and large amounts are frequently invested in buildings and other improvements. The law is such that an adverse claim need not be asserted for many years, until after •time has closed the mouthá of living witnesses and destroyed ancient muniments of title. For many purposes a doubtful •title is a' worthless title. Hence it is generally the expectation of the vendees entering into executory contracts for the purchase of land that they will receive a good title, not only, but one free from reasonable doubt and damaging infirmity ; ■and such a title it must be assumed that every fair, honest vendor expects to give unless he is freed from the obligation by some express stipulation in the contract; and this understanding should be respected and enforced by both courts of law and of equity. As said by Selden, J., in Burwell v. Jackson ( 9 N. Y. 535 ), “ Executory agreements for the purchase of lands are frequently made under circumstances

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which afford neither time nor opportunity for a thorough -examination, and the purchaser cannot be presumed, prior to entering into such an agreement, to have investigated the title.” Repays his money in reliance upon the understanding that he is to have a title both good and marketable, and if the ■vendor does not tender him such a title there is absolutely no reason why he should not receive back the money paid, .and he should not be compelled to take an unmarketable title at the peril of losing what he has paid. Take the ease where a vendee has made an executory contract of sale, paid the entire purchase price, and the vendor at the time of performance by him tenders a title which by the record appears to be in another, and yet where he can show by parol evidence a lost deed or will vesting him with the title, shall the vendee be compelled to lose the money paid or take an infirm and for many purposes a worthless title ? It is true that even courts of equity have in some cases compelled purchasers to take title resting upon adverse possession. But in such cases the adverse possession was established beyond any reasonable doubt. It is a fact usually open and notorious and generally known to many witnesses. Such a title is strengthened by every passing hour. Such cases bear little analogy to one like this, where the lapse of time operates in a different way and may speedily wipe out the only evidence competent to cure or remove the defect in the title tendered.

Here Barnes insists upon his lien and refuses to cancel it. The vendors should be at the expense of clearing the title ■of this cloud, and it is not just that they should cast that burden upon the vendee and require him to take an unmarketable title.

We therefore conclude that the judgment below is right ■and should be affirmed with costs.

All the judges concurred, except Gbaz, J., not voting.

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NOTE ON CONDITIONS SUBSEQUENT CONSIDERED AS INCUM-BRANCES OR DEFECTS IN TITLE EXONERATING A

PURCHASER.

Conditions subsequent]. An important class of suggested doubts upon title is that consisting of conditions subsequent. Here the objection appears on the record, and the vendor relies, on extrinsic evidence, sometimes to construe the conditions as. a mere covenant, and sometimes to show extinguishment.

In Post v. Weil (Ct. of App. Oct. 1889) it was held that language expressed to be a condition as thus : "Provided always, and these presents are upon the express conditions that,” etc., should be treated not as a condition but only as a covenant, if in view of all the circumstances this appears in accord with the intent of the parties. Gray, J., in delivering the opinion of the court laid some significance upon the fact that there was no express clause in the same deed giving right of re-entry. A purchaser was accordingly held liable, notwithstanding an express condition subsequent in the chain of title, and its breach. Post v. Weil (to appear probably in 115 N. Y. ) rev’g or overruling 8 Hun, 418 .

Limitation on condition.] In the case of the Mayor, etc. of Macon v. East Tennessee, et.c. R. R. Co. (Ga. 1889), 9 Southeastern Rep. 1127, it was held that a specific limitation, providing that the estate created was to exist only so long as the property was used for the purposes specified in the deed, is to be distinguished from an ordinary condition subsequent, in as much as it marks the limit or boundary beyond which the estate conveyed could not continue to exist [Citing Bl. Comm. 155, 156; 3 Minor, Inst. 263 ; 2 Washb. Real Prop. • 23-25, (457-459); Smith Ex. Int. §§ 34-42; 2 Kent Comm. 129; Henderson v. Hunter, 59 Pa. St. 335 ; Ashley v. Warner, 11 Gray, 43 ].

To the same effect, see Robinson v. Missisquoi R. Co., 50 Vt. 436 ; s. c., 4 New England Rep. 891.

Suspension of alienation by conditions.] Professor Gray in his Restraints on Alienation, opposes the American rule that a perpetual condition may be valid beyond the limits prescribed by the statute forbidding the suspension of the power of alienation for more that a life or lives, or, as in Hew York, two lives in being. He seems to overlook the fact that the rule against suspension is not violated, at least, in the form in which it exists in this State, where there are persons in being by whose uniting a conveyance giving absolute title could be made. The suspension contemplated by the statute may arise where a conveyance is in trust, and the trustee could

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not convey in contravention of the terms of the trust, or where a contingent remainder is attempted to be vested in a person, not in being, etc. ; for in such cases the power of alienation is suspended. Otherwise where, as in case of a condition, alienation will require the concurrence of several persons who are in being, and who will not agree; for in such case, although alienation is suspended, the power of alienation is not suspended. Drafting conditions, etc.] For notes on stipulations for restraint in the use of granted premises, pointing out the distinction between mére designation of use, personal covenants, covenants binding the land, and conditions with forfeiture for breach, see 13 Abb. N. C. 105 and 114. The following cases will aid in advising on titles involving such a question ; but in applying the rules they declare it is to be remembered that the courts to-day are less bound by technical phraseology, and search more freely than ever before for the intent of the parties, even contrary to phraseology.

Ho tes of Cases.

Spaulding v. Hallenbeck, 35 N. Y. 204 ; affi’g 39 Barb. 79 (Condition to support grantor for life).

Leach v. Leach, 4 Ind. 628 (condition to pay over share of produce for grantor’s support).

Berryman v. Schumaker, 67 Tex. 312 (the same in effect; but death before claim of forfeiture terminated it).

Plumb v. Tubbs, 41 N. Y. 442 (condition against liquor traffic). Smith v. Barrie, 56 Mich. 315 ; s. c., 56 Am. R. 391 (the same). O’Brien v. Wetherell, 14 Kans. 616 (the same). Woodworth v. Payne, ( 74 N. Y. 196 ; affi'g, in effect, 5 Hun, 551

(condition to use for church purposes). Gage v. School Dist., 64 N. H. 232 ; s. c., 4 New Engl. R. 284

(condition for school uses). Eilis v. Kyger, 90 Mo. 600 (condition to build railroad and depot). Gilbert v. Petler, 38 N. Y. 165 ; affi’g 38 Barb. 488 (condition against,

building so as to obstruct neighbor’s view). Hoyt v. Ketcham, 54 Conn. 60 (condition in restraint of cheap buildping).

Tardy v. Creasy, 81 Va. 553 ; s. c., 10 Va. L. J. 346 (covenants against all business, void as in restraint of trade).

Anon., 2 Abb. N. C. 56 (holding a covenant expressed to be as one off the conditions of the foregoing conveyance was a condition).

2 Washb. on Real P. 4 (says that words not in themselves sufficient?; to constitute a condition subsequent may become so with the addition of a clause reserving a right of re-entry).

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Weinerich v. Weinerich, 18 Mo. App. 364 (condition coupled with restraint on alienation till forfeiture).

Towle v. Remsen, 70 N. Y. 303 , 311 (holding that a reservation of right of to re-enter, etc., meant re-entry by action). Compare Osgood v. Abbott, 58 Me. 73 , 79 ; Ludlowy. N. Y. &. Harlem R. R. Co., 12 Barb. 440 ; Stratton v. Cole, 78 Me. 553 ; s. c., 3 New England, Rep. 388 (necessity of judicial proceedings or other acts of notoriety).

Indianapolis, Peru, etc. R. R. v. Hood, 66 2nd. 580 (statement of permanent use for depot, as the consideration implies condition).

Canal Bridge v. Methodist Society, 13 Metc. 335 (condition that church, etc., be built within a specified time, held repugnant to a second condition, that the land should be forever appropriated to public worship, and the latter condition therefore void).

Watson v. Milwaukee, etc. Ry., 57 Am. R. 67, n. (statement of sole purpose of conveyance, interpreted as a condition, upon extrinsic -evidence of intent.

Compare Robinson v. Missisquoi R. Co., 50 Vt. 426 .; s. c., 4 New Engl. 891; abst. s. c., 86 Alb. L. J. 308 (a).

Riley v. Umatilla Co., 15 Oreg. 72; s. c., 13 Pacific Rep. 890 (deed for sole use of educational purposes not a condition).

Lyon v. Hersey, 103 N. Y. 264 (contract for sale of bark restricting' vuse, held not to create a condition).

Bennett v. Culver, 27 Hun, 554 (condition that land should be used 'for cemetery purposes).

O’Brien v. Wagner, 94 Mo. 93 (covenant under penalty of forfeiture, held a condition).

Richter v. Richter, 3 Ind. 456 (deed with mortgage to grantor to secure care and support of him for life, held a deed on condition). Wilson v. Wilson, 86 2nd. 472 (deed with contemporaneous declarasion of grantee’s obligation not to incumber nor convey without parent’s consent during their lifetime, held a condition).

Although equity will not enforce a forfeiture, a remedy in equity by injunction is not denied merely because the parties, instead of inserting a covenant, inserted a condition. Woodruff v. Woodruff, 44 N. J. Eq. 349 ; Stuyvesant v. Mayor, etc. of N. Y., 11 Paige, 414; Morrris v. Tuskaloosa Mfg. Co., 83 Ala. 565 ).

But compare to contrary effect under peculiar circumstances, Hoard v. Chesapeake, etc. Riv. Co., 123 U. S. 222 .

Cases cited