
    Benjamin Gray versus Charles Blanchard.
    The demandant, being owner of a parcel of land with a dwellinghouse thereon, adjoining on the north to land with a dwellinghouse thereon belonging to his sister, facing to the south, conveys to the tenant’s grantor in fee simple, “ provided, however, this conveyance is upon the condition, that no windows shall be placed in the north wall of the house aforesaid, or of any house to be erected on the premises, within thirty years from the date hereof.” After the sister has conveyed her land to a stranger, the tenant mortgages by a deed reciting the foregoing provision, and afterward, while remaining in possession, makes windows in the north wall. Heldt that the above clause was a condition, and not a covenant ; that it was a valid condition ; and that such breach of it worked a forfeiture of the estate, and gave the demandant a right to re-enter.
    Writ of entry sur disseisin to recover possession of a parcel of land and a dwellinghouse thereon, situate in Atkinson street, in Boston. Trial before Wilde J.
    
      June 15th.
    
    
      In 1801, the demandant owned a tract of land bounding easterly eighty feet on Atkinson street, and erected on the northern portion of it a dwellinghouse facing to the south with the eastern end fronting on the street.
    In 1802, he conveyed to Willett and Bullard a part of the tract, bounded northerly by the parcel upon which he had erected the house, and measuring fifty feet on the street.
    In March, 1803, he conveyed to his sister, Mrs. Haile Rand, the northerly part of the tract, describing it as bounded southerly by land of Willett and Bullard, and easterly on the street, there measuring thirty feet.
    Willett and Bullard, having erected a dwellinghouse, under the directions of the demandant, on the northern part of the land sold to them, reconveyed such part to the demandant, describing it as bounded east on the street, twenty-eight feet, west on land of Dorr, twenty-eight feet, and north on land of the demandant.
    On the 28th of August, 1804, the demandant conveyed the tract now in question to William Blanchard, describing it as bounded east on the street, twenty-seven feet, south on land of Dillaway, west on land of Dorr, twenty-seven feet, and north on other land of the demandant, being part of the land purchased of Willett and Bullard; habendum in fee simple ; “ provided, however, this conveyance is upon the condition, that no windows shall be placed in the north wall of the house aforesaid, or of any house to be erected on the premises, within thirty years from the date hereof, and also upon the condition, that no building shall be erected upon the strip of land at the east end of said house for the space of thirty years from the date hereof, but during said term said strip of land, measuring twenty-seven feet on Atkinson street, and three feet three inches in depth from said street, shall remain without any incumbrances except the fences as they now stand.
    On the 24th of October, 1821, William Blanchard conveyed the same land to the tenant, “ subject to the terms and conditions mentioned and contained in the original deed from said Benjamin Gray to said William Blanchard, reference being thereto had.”
    On November 1, 1821, the tenant mortgaged the land to Jonathan Amory, by a deed in which the conditions above quoted are recited at length.
    It was proved, that the house on the land in question, is a brick house of about forty feet in length and eighteen in width, the north wall being towards the house conveyed to Mrs. Rand, and that at the time of the conveyance to William Blanchard, the north wall was without any aperture except one door-way ; and that in 1822 the tenant caused two windows to be made in this wall, which have ever since remained there.
    The demandant proved an entry upon the demanded premises for breach of condition.
    The tenant gave in evidence a deed of Mrs. Rand, dated m 1813, whereby she conveyed her land to George Blanchard, describing it as bounded southerly on land of William Blanchard. But the demandant claims to be the owner of a strip of land one foot wide, lying between the demanded premises and the land conveyed by him to Mrs. Rand.
    It was admitted that the demandant, at the time when he gave the deed to William Blanchard, had no interest in the house and land conveyed to Mrs. Rand, and has never since had any, and that none of his family have had any interest therein since his sister made the conveyance to George Blanchard.
    The jury were instructed to find a verdict for the demand-ant ; which was to be subject to the opinion of the Court.
    
      Prescott and Gorham, for the tenant.
    The provision in the deed from the demandant to William Blanchard, considered as a condition, is void. 1. It is against the policy of the law, being idle and useless to the grantor and embarrassing to the grantee. In the case of a lease, the grantor owns the estate and may prescribe the mode of managing it ; and if there is a forfeiture, the lessee ceases to pay rent ; but here there is a barren condition annexed to a fee simple, in land in which the grantor has parted with his whole estate. 2. The condition is repugnant to the grant. It is a restraint on the fair and profitable use of the land, when no estate remains in the grantor. The condition is not annexed to a collateral thing, but to the estate itself which is the subject of the grant. Co. Lit. 223; ibid. 206 b; Newkerk v. Newkerk, 2 Caines's R. 345; Sco
      
      vell v. Cabell, Cro. Eliz. 107; Stukely v. Butler, Hob. 170 Moore and Savil's case, 2 Leon. 132; Jervis v. Bruton, 2 Vern. 251; 2 Bl. Com. 381; Mildmay's case, 6 Coke, 41; 5 Vin. 105, Condition, A. a.
    
    
      
      March 27th, 1827.
    
      But suppose the demandant had been, at the time of the grant and ever since, the owner of the adjoining estate and wished to benefit it, the Court will consider the provision in question as the grant of an easement by the grantee or a covenant, and not as a condition. On the breach of a condition, the grantor only and his heirs can enter ; and if he has assigned the adjoining land and then enters, he holds the estate discharged of the condition and the owner of the adjoining land derives no benefit from the condition. Lit. § 347; Co. Lit. 214 a, 214 b, 215 b; Com. Dig. Condition, A 6; Bac. Abr. Covenant, A; 2 Cruise’s Dig. 6. Covenant will lie on a deed poll accepted by the grantee. Ewer v. Strickland, Cro. Jac. 240; Brett v. Cumberland, ibid. 399, 521; Knipe v. Palmer, 2 Wils. 130; Co. Lit. 231. The clause may be bad as a condition, but good as a contract. Freeman v. Freeman, 2 Vern. 233; Shep. Touch. 368; Holms v. Seller, 3 Lev. 305. The only way of effecting the intent of the parties, is to construe it as a reservation or covenant, running with the land conveyed to Mrs. Rand. The party who took the deed could not have understood that the estate was to be defeated by the non-performance of the supposed condition, there being no words of re-entry, nor any.words signifying that the deed would become void.
    Putting in the windows was a trespass by a tenant at will, and ought not to work a forfeiture as against the mortgagee, who has the fee simple.
    jS. Hubbard and C. G. Loring, contra,
    
    to the point, that the words used constitute a condition, cited Shep. Touch. 121, 122; Bac. Abr. Condition, A, G; Vin. Condition, H, and notes; Lit. § 328, 330, 331; Jackson v. Allen, 3 Cowen, 221. That the condition was not repugnant to the grant, Shep. Touch. 129, 131; Large's case, 2 Leon. 82, and 3 Leon. 182; Dyer, 318, pi. 12, Bac. Abr. Condition, L; Vin. Condition, Z, pl. 4 and pl. 32; Com. Dig. Condition, D 6; Doe v. Pearson, 6 East. 173. That a court of equity will not relieve when the forfeiture is voluntary, Rolfe v. Harris, 2 Price, 210, note. That if the condition had been idle and useless, yet being express and upon a valuable consideration (the price of the land being of course less in consequence of the condition), it must be enforced, Jackson v. Brownell, 1 Johns. R. 267; Skinner v. White, 17 Johns. R. 357; Wheeler v. Walker, 2 Connect. R. 196; King v. Withers, Finch’s Prec. 348. That the lapse of time since the breach of the condition, was not a waiver, Jackson v. Crysler, 1 Johns. Cas. 125; Doe v. Allen, 3 Taunt. 78; Braddick v. Thompson, 8 East, 344; Roe v. Harrison, 2 T. R. 425. That covenant would not lie, Goodwin v. Gilbert, 9 Mass. R. 510.
    The opinion of the Court was delivered at this term, by
   Parker C. J.

The tenant moves to have the verdict set aside, on several grounds.

First, because the words in the deed do not import a condition, the breach of which will work ¡a forfeiture of the estate, but only a covenant, entitling the demandant to his action for damages. But this is untenable. The words are apt to create a condition ; there is no ambiguity, no room for construction ; and they cannot be distorted so as to convey a different sense from that which was palpably the intent of the parties. The word “provided” alone, may constitute a condition, but here the very term is used which is often implied from the use of other terms. “ This conveyance is upon the condition,” can mean nothing more nor less, than their natural import ; and we cannot help the folly of parties who consent to take estates upon onerous conditions, by converting conditions into covenants. It would be quite as well to say that the words mean nothing, and so ought to be rejected altogether. No authority has been cited which bears out this suggestion ; indeed the authorities are all against it

It is then said, that this condition is void, being idle and useless, and so against the policy of the law. But who shall judge over the head of the grantor, that this condition is idle and useless ? At the time of his conveyance to William Blanchard, his sister owned, by conveyance from him, the next adjoining lot to the northward, with the front of her dwellinghouse towards this north wall. He probably intended to Prolect this estate from being overlooked from windows in that wall, the house in question having been built with this dead wall under his direction. This may have been important to the enjoyment and the value of his sister’s estate ; and there seems to be no good reason why, in disposing of the demanded premises, he should not provide for her accommodation. Those who hold under her may have considered this restriction on the estate as an inducement to purchase. The grantee was not surprised into the bargain, nor those who hold under him, the condition being inserted in all the deeds ; and if the estate was of less value on account of this restriction, they were compensated in the price ; at any rate, it was a voluntary bargain, and if they did not choose to take the estate cum onere, they should have rejected it altogether. Every proprietor of an estate has jus disponendi. He may grant it with or wdthout condition ; and if he grants it upon condition directly, the estate of the grantee will terminate with the breach of the condition, if the grantor chooses to avail himself of the forfeiture and enter for the breach.

It is next argued, that this condition is void, as being repugnant to the grant, restraining the beneficial use of the estate. Without doubt, conditions of the nature supposed are void, and the estate is absolute; but the law very clearly defines this rule, and the cases cited to support this position show the limitation and the exceptions to the rule.

A lease for two years, provided the lessee occupy but one ; this is repugnant and senseless, and the proviso shall be rejected. Scovell v. Cabell, Cro. Eliz. 107.

Grant of a house upon condition not to meddle with the shops, the shops being part of the house ; this is of the same nature. Hob. 170.

So a grant of land or rents in fee simple, upon condition that the grantee shall not alien, or that his widow shall not have dower ; these conditions are void, as clearly repugnant to the grant; Shep. Touch. 129, 131 ; for it is of the essence of a fee simple estate, that it shall be alienable and subject to dower.

But if the condition be that the grantee shall not alien to particular persons, or within a reasonable limited period, these conditions shall stand, not being inconsistent with the nature of the estate granted. Co. Lit. 223.

If one make a feoffment in fee on condition that the feoffee shall retain the land for twenty years without interruption, it seems this is a good condition and not repugnant. Shep. Touch. 131. A feoffment in fee with a condition that the feoffee shall not enjoy the land or take the profits, or that his heirs shall not inherit it, or that the feoffee shall do no waste, or that his wife shall not be endowed ; these are all repugnant and void. Shep. Touch. 131. And the same law is of a grant by deed of bargain and sale, for by our law this is an entire substitute for a feoffment.

But partial and temporary restrictions as to the use, may be consistent with the estate granted, and so may stand.

A condition in a deed of a house, that there shall be no windows in it, or no passage in and out, or that the grantee should never occupy or sell it, would come within the rule and be void ; but that there should be no door or window on one side or end, that it should not be sold for several years, or to a particular person, would fall within the exception to the rule, and form a valid condition.

Again, it is said that the demandant not owning any land adjoining he has no interest in the condition, and so cannot avail himself of the forfeiture. But it is not necessary, in order to make a condition valid, that the party creating .it should have any beneficial interest in any other estate which may be usefully affected by the condition. He may have con veyed an adjoining estate for the benefit of which this condition was created. He may have received a greater price for that estate on account of this condition, and justice to others may require that he should exact its performance.

It is said to be a general rule, that when a man hath a thing, he may condition with it as he will. This however is subject to the foregoing rule. Shep. Touch. 118. And the condition cannot be reserved to a stranger, but by and to him who doth make the estate. Neither can it be granted over to an°ther, except to and with the land or thing unto which it is annexed and incident. Ibid. 120.

It seems to us that there are many things which may he provided for as conditions in a deed, which, though of small consideration in the view of a stranger, may be thought of great importance by the grantor. A man has a vacant lot in front of his dvvellinghouse, which somebody is desirous to buy, and he is willing to sell, if thereby his light and air shall not be too much obstructed. May he not sell it under a condition, that no building shall be erected beyond a certain height, or within a certain distance from his house, or that the land shall not be used for the purposes of a tavern, or for any particular business which is likely to be noisy or troublesome, at least for a limited number of years ? Who is prejudiced by such a condition ? The purchaser and all who may claim under him have notice of the restriction, and if it diminishes the value of the land, they get their compensation in the price.

The common law does not so interfere with the right of disposing of estates ; as appears from the authorities cited Neither is there any thing unreasonable in the particular condition of this deed. The tenant’s house is built with its easterly end on the street, its front to the south. Such houses are usually pro video with light from the front and the ends. This very house had stood many years without windows in the back wall. Certainly if it is a hard thing for the demandant to exact the forfeiture, it was a foolish thing in the tenant to give him the opportunity.

Then it is thought that the various conveyances under the original grantee of the demandant, William Blanchard, and the tenant, who has charged the land with a mortgage, may have destroyed this condition, or defeated the right of the demandant to enter for the breach of it. But the law is otherwise.

“ The estates of both parties are so suspended by the condition, that neither of them alone can well make any estate or charge of or upon the land that is, free from the burden of .he condition. For he that parteth “ with the estate and hath nothing but a possibility to have the thing again upon the performance or breach of the condition, cannot grant or charge the thing at all. And if he that hath the estate, grant or charge it, it will be subject to the condition still; for the condition doth always attend and wait upon the estate or thing whereunto it is annexed.” “ And when the condition is broken or performed, &c. the whole estate shall be defeated and the whole estate of the whole, and not of some part only. shall be avoided, except by agreement the condition is limited to part.” Shep. Touch. 120, 121.

The last pointemade in the argument for the tenant is, that there being no clause of re-entry for breach of condition in the deed, the provision is not strictly a condition going to the forfeiture of the estate, but may for this reason be construed into a covenant. But here again the law seems to be clear the other way.

A clause of re-entry is not necessary to make a condition. Proviso, ita quad, sub conditions, make the estate conditional. Com. Dig. Condition, «8 2. Other words, such as si, si contingat, do not make a condition, which will work a forfeiture, without clause of re-entry Lit. § 331 ; Shep. Touch. 121.

It has been suggested also, that as the proprietor of the estate next north of the wall, must have known of the placing windows there, and did not prohibit or complain of the act, uis silence sncm.u oe construed a waiver of the condition, so as to defeat the i>»martd >ut’s right to re-enter. But there are two objections to ft'isfirst, that the then owner of the adjoining estate had no legal interest in that-condition, and therefore could not waive it. His silence might result from a reliance that the demandant, under whom derivatively he held, would vindicate his own rtgnts. ¡secondly, a mere indulgence is never to be construed into a waiver of a breach of condition ; and so are the authorities. If the windows had been made before the conveyance in mortgage by the tenant to Amory, the demandant knowing that the condition had been broken and having omitted to enter for breach, there would be a- strong case in equity for an .injunction from a court with competent jurisdiction on the subject; but the mortgage was made before the breach of condition. It has been strongly urged, that after the mortgage, Charles Blanchard was only tenant at the will of the mortgagee, and that his act, unauthorized by the mortgagee, could not work a forfeiture. But he was, to everybody but the mortgagee, tenant in fee ; and remainhig in possession with the consent of the mortgagee, his acts have the same effect as if he had not conveyed in mortgage. The mortgagee’s estate was subject to the same condition, not only by virtue ol the original deed from the demandant, but the condition was expressed also in his deed from the tenant ; so that he should have dispossessed the tenant, if he would have avoided the effect of his acts.

We therefore see no ground on which, consistently with the rules of law, we can deny the demandant’s claim. It is a harsh proceeding on his part, but it is according to his contract, which must be enforced, if he insists upon it.

Judgment according to verdict. 
      
       See Newkerk v. Newherk, 2 Caines’s R. 345; M'Williams v. Nisby, 2 Serg. & Rawle, 513; Stockton v. Turner, 7 J. J. Marshall, (Ken.) 192 Hawley v. Northampton, 8 Mass. R. 37; Lawrence v. Gifford, 17 Pick. 366.
     
      
       See Jackson v. Topping, 1 Wendell, 388; Winn v. Cole, Walker, 119; Hayden v. Stoughton, 5 Pick. 528; Brigham v. Shattuck, 10 Pick. 306; Clapp V. Stoughton, 10 Pick. 463; Austin v. Cambridgeport Parish, 21 Pick. 215.
     
      
      
         See Jackson v. Crysler, 3 Johns. Cas. 125; Hutchenson v. M'nutt1 Hammond, 21; Coon v. Brickett, 2 N. Hamp. R. 163; Willard v. Henry, 2 N Hamp. R. 120; Lawrence v. Gifford, 17 Pick. 366.
     