
    The President, Directors and Company of the Lincoln and Kennebeck Bank versus Alexander Drummond.
    Where one conveyed an estate upon a condition to be thereafter performed by the grantee, and the grantor continued in possession, he need not make a forma: entry for the condition broken, and the fee remains in him without entry.
    The plaintiffs demanded seisin and possession of a tract of land described in the writ, lying in Georgetown, in this county, and declared that one John Drumnond, being seised thereof in his own demesne as of fee, on the 27th of June, 1803, by his deed of bargain and sale, and of mortgage, duly executed and recorded, for a valuable consideration, conveyed the same to the plaintiffs, to hold in tee and in mortgage, by force whereof they became seised. &c., and ought to be in the possession thereof; but the said Alexander had unjustly entered into the same, and ousted the plaintiffs, and deforced and keeps them out, &c.
    * Upon not guilty pleaded, the cause was tried before [ * 322 ] Thatcher, J., September term, 1807, and a verdict taken for the defendant, subject to the opinion of the Court upon the facts proved at the trial, as the same should be reported by the judge who sat in the trial.
    In support of the issue on their part, the plaintiffs produced the mortgage deed of John Drummond, to them, conditioned for the payment of 500 dollars in one year from the 27th of June, 1803, the date of the deed, and a bond of the same date for the same sums, which appeared to be in no part satisfied.
    The defendant produced a deed from himself to the same John Drummond, dated the 30th day of July, 1800, whereby, for the consideration pf ] 00 dollars paid him by his beloved son, the said John, «nd in further consideration of the said John’s maintaining the grantor and his wife during their lives, the said Alexander conveys to the said John the demanded premises in fee, with warranty; provided the said John, his heirs or assigns, should maintain him, the said Alexander and his beloved wife Jane, during thé natural lives oí ¿ach, in a comfortable and Christianlike manner.
    The defendant proved that from the date of the deed to the time of the trial he had lived upon the premises, and in the family of his said son until his decease in March, 1806. From that time he had received no aid, support or maintenance for himself or his wife, from the heirs, executors, administrators or assigns of the said John, but had altogether supported himself and wife by his labor, occupation and possession of the demanded premises. Administration of John Drummond’s estate was granted to Alexander Drummond, Jun., July, 1806. No evidence was given of any formal entry upon the demanded premises by the defendant, for the non-performance of the condition of his deed to his son, nor of any demand upon the administrator of * the son’s estate, or upon the [ * 323 J present plaintiffs, to contribute to his support and maintenance.
    At the last June term, the cause standing for argument, Wilde, of counsel for the tenant, observed that the demandants, claiming under John Drummond, could have no better estate in the premises than he held. The conveyance to him did not create an estate in mortgage, which always implies something to be done on the part of the grantor, for which the estate is a pledge, but a conditional estate at common law. The only remedy for a breach of the condition was by entry; but as, in this case, the grantor had continued in possession, this was equivalent to a formal entry. Whether a tender of performance afterwards would relieve the pledge is a question not arising in the present action. Certainly no demand on the plaintiffs was necessary. They were bound to understand their own title, and to furnish the defendant with the proper supplies.
    
      Lee, for the demandants
    urged the hardship of forfeiting the estate for a slight neglect. The heirs of John Drummond were minors, and could do nothing themselves; and shall they lose their whole inheritance for a few days’ neglect of the administrator ? Perhaps, too, weeks or months might elapse after the death before administration was granted. The defendant may have a sufficient remedy by a bill in equity to compel a performance of the condition; and in this way complete justice will be done.
   The cause stood over for advisement to this term, when the opin ion of the Court was delivered by

Parsons, C. J.

The action is entry upon disseisin against the tenant as disseisor. On not guilty, a verdict was found for him, subject to the opinion of the Court upon the report of the judge.

. From the facts reported it is manifest that the estate conveyed by Alexander to John Drummond was an estate upon condition, and that the condition has been broken.

[ * 324 ] * Generally the grantor of an estate on condition must enter for condition broken, to revest the estate in himself. But when he is in possession already, and cannot enter, the estate shall revest in him on the breach of the condition . In this case it is found that the tenant always continued in possession, living in the house: he could not therefore enter, and without entry the fee of the estate is in him. He cannot therefore be considered at law as a disseisor, and the verdict must stand.

How far an estate upon condition to be void; unless some further act be done by the grantee, is a mortgage within the statute of 1798, c. 77., so that this Court can in equity relieve the grantee, or his heirs or assigns, against the breach of the condition, or whether we can only relieve the grantor on condition and these claiming under him, may be determined hereafter, if the demandants should be advised to apply by bill to the equitable jurisdiction of the Court. 
      
      
        Co. Lit. 218. § 350.
     