
    Lessee of Hezekiah Sperry v. Moses Pond and others.
    A conveyance, on condition tliat the grantee shall keep a saw-mill and gristmill doing huisness on the premises, is a valid one, and if the grantee fails to perform the condition he forfeits the estate.
    This was an ejectment tried on the last circuit, in Trumbull county. A verdict was found for the plaintiff, and a motion made by the defendant for a new trial, which was reserved for decision here.
    *It was proved on the trial that Sperry, the lessor, was seized'in fee of a tract of land through which Mill creek flows, in the county of Trumbull. That being so seized, he, on September 10, 1817, by .a deed duly executed, for good consideration, granted to Isaac Clark, his heirs and assigns, the privilege of erecting on the said tract of land a grist and saw-mill, with any other machinery attached, at such place as Clark should select; of damming the stream and digging the necessary mill races, and to have a quarter of an acre for a mill yard at each mill. The said mills and privileges to be held and enjoyed by the said Clark, his heirs and assigns, “so long as they should continue to use and improve the same for the express purpose of grinding, and no longer.” That on December 11,1820, Sperry, by deed duly executed, for the consideration, as expressed in the deed, of one hundred and fifty dollars, conveyed to Clark, his heirs and assigns, one acre of land described by metes and bounds, including the mills and half acre mentioned in the deed of 1817, and a part of the above tract owned by Sperry, to be enjoyed and occupied by the said Clark, his heirs and assigns, “so long as he, the said Clark, his heirs and assigns, shall keep a saw-mill and grist-mill doing business on the premises, allowing, however, all necessary time for repairs, and no •longer.” That Clark erected on the premises a grist and saw-mill .and put them in operation; that in 1820, he sold and conveyed all his interest in the mills and premises to the defendant, Pond, and put him in possession; that about six months after Pond purchased, the grist-mill, for want of repair, was stopped running; it remained so until the spring of 1825, when it was repaired and run, as the water would admit, until some time in 1826, when it was again stopped running, and has not since been repaired or run. That the saw-mill was continued in operation by Pond from the time he purchased, as the water would admit, until the spring of 1824, when the forebay gave way, and it was not again started until the fall of 1825; witter was then conveyed to it by a trough, and some *sawing occasionally done. In the spring of 1826 the forebay was reconstructed, and the saw-mill repaired, and when there was water sufficient, it has ever since been kept in operation. That the stream would drive one of the mills about three months in the year; both, not more than three days at á time. It was also proved or admitted, that the defendants were in possession when this action was commenced, and that Sperry had not parted with the reversion.
    Stone, for the defendants,
    cited Cruise Dig., tit. 13, sec. 1; 4 Johns. 186, 215, 25.
    Loomis and Metcalf, for plaintiff,
    cited 2 B. C. 155; Cru. Dig., tit. 13, secs. 65, 66; 10 Rep. 41, 42; Co. Lit. 214 a, n. 1, 2.
   Judge Collet

delivered the opinion of the court:

When the first deed was made, it was not known where the mills would be erected; when the last deed was executed this was ascertained. By it an acre of land, described by motes and bounds, including the mills and yards and privileges conveyed by the first, was conveyed to Clark, his heirs and assigns, to be occupied by them “so long” as they kept a sáw-mill and grist-mill, doing business on the premises, “ and no longer.” After .the execution of this deed the premises were held according to its terms; if they vary from the terms of the first deed, the last must govern. The parties had the power and the right to vary them. The contingency, by the happening of which the estate granted might be defeated, is substantially the same in both deeds. The estate granted is made to depend, for its continuance, on keeping a grist■mill and saw-mill on the premises doing business, as much of the time as the water, and the necessary time to repair them, would .admit of, and no longer; not on keeping a saw or grist-mill doing business. It is plain and unambiguous; we can see no room for construction. As the parties make their deeds and contracts, the •court must take them.

*It is probable that the stream would not justify keeping both mills in repair on the premises; that the defendants had better lose their estate in them than do so. This, the court can not take into consideration. It was not impossible for them to keep both mills in repair on such a stream.

No inference can be drawn to preclude the plaintiff’s right tc recover, from his not bringing an ejectment at an earlier period; although the grist-mill did no business, and was out of repair from 1821 until 1825, and from 1826 until the bringing of this action, and the saw-mill from the spring of 1824 until the fall of 1825, The estate conveyed by the deed to Clark was a qualified or determined fee. If the terms of the deed are such, as to be construed a limitation (although the reversion was not disposed of, and Sperry could enter for a forfeiture without destroying any remainder), then, the estate of Pond terminated in 1821, and by operation of law, vested in Sperry, where it has ever since remained. 2 B. C. 109, 155. If the estate of Clark was on condition in deed, then the forfeitures, which happened by suffering the grist-mill to remain still and out of repair, in 1821, and suffering the saw-mill to remain still and out of repair, in 1824, were saved by having them both running in 1826. If Sperry knew of their being out •of repair, and of the repairs going on, and did not enter or forbid the repairs; but by supposing the grist-mill to go out of repair in 1826, and cease to grind, a forfeiture again occurred, and as the grist-mill was not repaired and put in operation before a demand was made by Sperry, the forfeiture still continues. An entry or demand of Sperry revested the title in him. The bringing this action is such a demand as, in England, would entitle him to recover for the forfeiture. 2 D. Rang. 750; Burt, on Ed. 46. The" judges who tried this cause remember, that on the trial it was proved that a demand and entry was made by Sperry some time before the commencement of this suit. If Sperry was ignorant-of, or did not assert his claim as soon as he might, he does not thereby forfeit his title.

*These mills, if kept in operation, as the water would permit,, would increase the value of the balance of Sperry’s tract of land, and\be a benefit to the occupier of it. This* probably, with-Sperry, was a part of the consideration for making the grant. Upon the whole,- the court overrule the motion for a new trial and enter judgment on the verdict.  