
    Bacon against Huntington and others.
    4 being indebted to B in the sum of 1500 dollars, gave to B two promissory notes, one for 1000 dollars, and the other for 500 dollars, and, at the same time, executed two mortgages, one of While-acre, to secure the former note, and one of jBlack-acre^ to secure the latter note, Some time afterwards, A and Centered into a written contract, by which Qagreed-to purchase White-acre of A, and to pay him for it 500 dollars, and also to pay all prior incum-brances thereon, not exceeding in amount the sum of 1500 dollars. In fulfilment of this contract, Cpaid the 500 dollars to A, and A thereupon executed a warranty deed, to C, by which he conveyed While-acre to him, subject to the payment by C of 1500 dollars, with interest, to B, on A’s notes and mortgages to B. Cafterwards conveyed ins interest under this deed, to D, his son. On _ a bill of foreclosure brought by A against C and JO, stating these facts, it was held, on a demurrer to the bill, 1. that upon a just construction of the deed from A to C, this was a conditional grant, it being the intention of the parties to make the continuance of the estate conveyed to depend upon the payment, by C, of the amount due on the two notes held by B against A ; 2. that the interest taken by C, under his deed from A, being a conditional estate, no greater or different interest passed, by his conveyance to D ; 3. that as compensation could be made for a failure of performance by the time stipulated, the deed from A to B was to be treated as a mortgage, and a decree of foreclosure was the proper remedy ; 4. that as the sole object of the bill was to foreclose the defendants, and all the material allegations conduced to shew a case proper for that kind of relief, the bill was not exceptionable on the ground of multifariousness; 5. that as B had no interest, which could be, or was sought to be, affected by the decree, it was not necessary to make him a party to the bill.
    This was a bill in chancery for a foreclosure and other relief.
    The material facts stated in the bill, on which the principal question arises, are these. On the 30th of April, 1833, John Bacon gave to the Middletown Savings Bank, his two several promissory notes, of that date, one for 1000, and the other for 500 dollars, each payable six months from date, with interest ; and on the same day, he mortgaged to said bank, by several deeds, two pieces of land, one called the Sage place, for the security of the first note, and the other, called the Main-street place, for the security of the other note ; on both of which notes Bacon paid, from time to time, the interest, to May 1, 1836. On the 1st of January, 1836, a contract in writing was entered into between Bacon and Selden Huntington, one of the defendants, by which the latter agreed to purchase the Sage place, and pay Bacon for it 500 dollars, on or before the 1st of May, 1836, and also to pay all prior in-cumbrances thereon, not exceeding in amount the sum of 1500 dollars, (the amount of said two notes to the Savings Banki) meaning, as the bill alleges, in addition to said 500 dollars; when Bacon was to execute to Huntington a conveyance of the Sage place. On the 12th of April, 1836, Bacon, having received from Huntington said 500 dollars, executed to Huntington a warranty deed, of that date, by which, for the nominal consideration of 500 dollars, he conveyed to him the Sage place, “ subject to th,e payment, by said Huntington, of 1500 dollars, with interest thereon from the 1st day of May, 1836, *° Middletown Savings Bunk, on his (said Bacon's) notes hand and mortgages to said bank; which sum of 500 dol- • . ' . . Jars was paid, and said deed given and-accepted, in fulfilment Qp sa;^ contract. In this.deed there was a clause that 500 of said 1500 dollars, so secured by said mortgages, was to he paid by Huntington, within one year, from the dkte of such • deed. Huntington, at the same time, agreed to procure, within a reasonable time, a release of said mortgages, to pay said notes and save Bacon harmless therefrom. Huntington subsequently conveyed,‘by. separate deeds, executed at different times, to each of his minor children, Joseph S.- Huntington and Emily S. Huntington, an equal undivided half of the Sage place.
    
      John Bacon died in the Spring of 1837 ; and the present bill was brought by Martha Bacon, his administratrix'. Sel-den Huntington and his two children above-mentioned, were made defendants.
    To this bill the defendants demurred ; and the casé was thereupon reserved for the advice of this court. j.
    
      McCurdy, in support of the demurrer,
    contended, !.• That Bacon's deed to Seldert Huntington, by a fair construction, merely gave notice of the incumbrances then existing, and did not create any new incumbrance. Consequently, Joseph and Emily, who are hona fide purchasers, without notice ,of any incumbrance, except wjiftt appears from Bacon's deed to the Savings Bank, and his deed to Selden Huntington, are entitled to hold'the. premises subject to such original incumbrau-c.es only. "
    • 2. That if such is not the construction of the deed, it creates either an estate on condition, or a trust, or a mortgage. First, if an estate on condition, then the condition not having been complied with, the title reverts to the grantor, and he has his remedy at law. Wheeler & tlx. v, Walker, 2 ..Conn. Rep. 196. Secondly, if a trust for the payment of debts, then the trustee may sell the estate, and the purchaser holds it free. 2 Sw. Dig.. 114. 6 Ves. jr. 654. n, • Thirdly, if a mortgage, then the plaintiff, as mortgagee, can claim nothing until she has paid the debts. Shepard v. Shepard & ai. 6 Conn. Rep. 37.
    
      3. That as against Selden Huntington, the remedy is at law bn the agreement.
    4. That the bill was bad for multifariousness. Coop. Eq. PI. 182. & seq.
    5. That the Saving's Batik, having an interest in the subject, should have been joined.
    
      Hungerford and Wightmctn-, contra,
    contended, 1. That tfie' conveyance'from Bacon to Selden Huntington was a conditional grant; i.e. the estate granted w.as, by the terms of the grant, to be defeated, if the grantee did not pay the two notes given by Bacon to the Savings Bank.
    
    2. That as the grantee had failed to make such payment, he had only an equitable interest left, which was a proper1 subject of foreclosure.
    3. That if otherwise, the vendor has a lien on the land for the purchase money unpaid, which maybe enforced, by a. suitable decree under this bill. Carson v. Green & al. 1 Johns. Ch. Rep. 308.v- 4 Kent’s Com-, 152. and n.dt And so against a purchaser of the vendee with notice. Watson v. Wells, 5 Conn. Rep. 468. Meigs & al. v. Dimock, 6 Conns Rep. 458.
    4. That the record of the deed from Bacon to Seldeii Huntington furnished sufficient notice to the purchasers in this case. Booth v: Barnum, 9 Conn. Rep. 286. [Numerous other cases to the same effect, were minuted on the brief.]
    5. That the bill was not multifarious.
    6/ That the case did not require the Middletown Savings Bank to be made a party.
   Storrs, J.

This being a bill for a foreclosure, brought to compel payment, by'the defendants, of. the notes given to the Savings Bank, the main inquiry is, whether the conveyance from Bacon to Selden Huntington is a conditional deed-; and that depends upon the construction which is to-be given to the peculiar phraseology used in the deed. '

It is contended, in the first place, by the defendants, that the effect of the language used, in reference to the mortgages previously executed by Bacon, is merely to give notice, and guard against the effect, of the incumbrances therein mentioned, and- not to create a new incumbrance; while the plaintiff insists, that it creates a qualification or restriction to the conveyance, by which it is to be defeated, on a non-compliance with the terms to which it is expressed to be subject.

It is á cardinal principle, in the construction of all written instruments, that the inténtion of the parties, as apparent upon the whole instrument, is to be carried into effect, if consistent with the rules of law. In accordance with this rule, a different construction has been given, by courts, to the same expressions, where the apparent intention of the parties, and the object of the instrument, require it. Thus, the same words have been construed to create a condition, or limitation, or covenant, ás the sense of the parties appears to require. No precise technical words are required in a deed, in order to make a stipulation a condition, whether precedent of subsequent. The words on condition, provided, ita quod,paying, si, and various others, have been held sufficient for this purpose ; and indeed any terms will have the same effect, where the nature of the transaction indicates that it was the intention of the parties that the estate granted should commence, orbe enlarged, or defeated, on the happening or not happening of the event mentioned.

On examining the deed in question, by these plain and familiar principles, it is impossible to doubt that it was the intention of the parties, to make the continuance of the estate conveyed, to depend on the payment, by the grantee, of the amount due on the two notes held "by the Savings Bank. The grant is expressed to be “subject to the payment by said Huntington [the grantee] of 1500 dollars, with interest thereon from the 1st day of May, 1836, to the Middletown Savings Bank aforésaid, in his, the said John Bacon’s, notes of hand and mortgages to said bank as aforesaid.” It is not merely stated to be subject to the mortgage executed on said property, to said bank, by the grantor, which would be the most natural, proper and usual phraseology, if the intention had been only to give notice of that incumbrance, or to save himself from liability on the covenants subsequently inserted in the deed. But it is subject to the payment of a certain sum of money : that payment, it is stated, is to be made by the grantee, and on the notes and mortgages executed previously by said grantor to said bank ; as if to shew, beyond all doubt, that the payment was not to be made by the! grantor, who was primarily liable to the bank ; and that it was also to be made for the benefit of said grantor, by relieving his other - mortgaged property from the incumbrance created on it by one of said notes. For, it will be observed, that there was only one mortgage on the premises conveyed to Huntington, and tHat was to secure only one of said notes: the other note W'as' secured by another mortgage of a distinct piece of land. No reason whatever can be assigned why a conveyance should thus be made of one of these two several pieces of land, subject, not only to the note and mortgage resting on that piece of land, but to another note and mortgage resting on another piece entirely flistiilct, with which the former was not affected nor encumbered, and with which it had no con-nexion, unless it was the intention of the parties so to restrict and qualify the grant that the estate should be defeated, if payment should not thus be made. It is also to be observed, that the amount, which it is provided shall be paid by the grantee, is much greater than the sum which whs due on the claim for Which the land had been previously mortgaged; and that it is further provided, in the deed, that a specified part of the said 1500 dollars “So secured by said mortgages,” to wit, 500 dollars, was to be paid by the grantee, within one year from the date of the deed; whereas the debt to the bank, and which it was designed to cancel, had previously become due. Froni these circumstances, it is very manifest, that it was the design of the parties to impose an obligation on the grantee to pay the claims specified in the clause in question, and to annex a condition to the grant, by which it should be defeated, if that obligation Was not fulfilled. The words “subject to” used in this deed, taken in connexion with the phrase of which it is a part, and interpreted according to the meaning which it evidently imports, and of which it is susceptible, without doing the least violence to its proper signification, is as expressive of a conditional grant as any that could have been selected; although it is true, that it is more commonly used for the purpose of qualifying the covenants in a deed, than the estate conveyed by it. To construe it, in this instance, otherwise than as importing a condition, would be to thwart the obvious design of the parties, and to give to the language which they have employed, no meaning or effect whatever.

This view of the case renders it unnecessary to examine the objections urged by the defendants, that the deed created only a trust for the payment of the debts due to the Savings Bank, and that the children of Selden Huntington had no notice of the agreement between him and Bacon.

The interest taken by Selden Huntington, under the deed in question, being a conditional estate, no greater or different interest passed, by his conveyance to his children, the other defendants, who received it liable to the condition it contained.

As by the terms of the deed, 500 dollars, part of the 1500 dollars due to the Savings Bank, was to be paid by the grantee, within one year from its date, and is a part of the condition which the grantor has not complied with, there has been a breach of the condition ; and as compensation can be made for a failure of precise performance, the deed, in conformity with a principle established by our courts, is to be treated as a mortgage, and it is a proper case for a decree of foreclosure.

We discover no ground for the objection to the bill for multifariousness, its sole object being to foreclose the defendants, and all the material allegations conducing to shew a case proper for that kind, of relief. There are, it is true, averments in it, which, under our practice, are unusual and unnecessary ; but they are merely statements of evidence and reasoning, and do not so relate to any other matter as to bring it within this objection. Nor has the Savings Bank, as is claimed, any interest in the subject, which either can, or is sought to be, affected, by the decree ; and it was, therefore, unnecessary that it should have been made a party to the bill.

The superior court is, therefore, advised, that the demurrer to the bill be overruled.

In this opinion the other Judges concurred, except CmntcH, J., who was not present.

Demurrer overruled.  