
    Hamilton against Elliott.
    
      Tuesday, December 20.
    A, conveyed land to B, by deed, and the parties executed an indenture reciting the deed, and that it was their intent and meaning, and the deed of conveyance was on this condition and mutual agreement between the parties, that B, should indemnify A, from ail costs and charges, by reason of the non-payment of the quit-rent due or to become due, and would also build a dwelling house on the lot, and suffer A and his wife, to reside there during their joint lives, and until it should be built they were to reside in the old tenement then on the lot. After this followed covenants for mutual performance. B, paid the quit-rents, but did not build the dwelling house. B, and his wife, resided in the tenement during their lives, and A, sometime before his death, conveyed the estate to another.
    
      Held, that the estate was upon condition of building, which B forfeited by not performing within a convenient time, whereby the estate re-vested in A, without the necessity of entry, to take advantage of the breach of condition, as he was in possession ¡ and without notice of the non-performance of the condition.
    In Error.
    THIS was a writ of error to the District Court for the city and county of Philadelphia, in an ejectment brought by Elliott, the plaintiff below, against Hamilton for a ment and lot of ground on the north side of Poplar lane, in the county of Philadelphia. By a bill of exceptions, taken by the defendant to the charge of the Court and returned with the record, the case appeared to be thus :
    
      Edward Almond and wife, by indenture dated 28th 1803, granted the premises to Hugh Hamilton, subject to a ground rent of 10 dollars, payable to John Denny. The consideration expressed was 10 dollars, and the payment of all ground rent, accrued or to accrue. On the same day the said Hamilton executed an indenture which recited the above grant, and then proceeded thus:
    “ And whereas it was the intent and meaning, and the deed and conveyance of the said premises to the said Hugh Hamilton and his heirs, was on this condition and mutual agreement between the parties ; that he, the said Hugh Hamilton, his heirs and assigns, should and would pay and discharge the said annual ground rent, and all arrearages thereof, and indemnify the said Edward Almond,, his executors and administrators, and his and their goods and chattels, from all costs, suit, loss, and damages,' for or on account said of rent-charge, and arrearages thereof, and also build and erect, or cause to be built, erected, and finished, on the rear or north end of said lot, a tenement or dwelling house, of at least twelve feet by fifteen feet, and one story and an half high, with a hip or salt box roof, so as to make a lodging room of the garret, with chimnies, and fire-places, in the same tenement, and permit and suffer the said Edward Almond, and Hester his wife, and the survivor of them, during their joint lives, and the life of the survivor of them, at and for the rent of one grain of Indian corn per annum, to hold, dwell in, and occupy, the same back building, or dwelling house, and have yard room of at least five feet breadth, adjoining the whole length of said tenement, and an alley or passage of at least three feet wide, from the same tenement, into and from the said Poplar lane, at all times during the term aforesaid, and that until the said back building is so finished, they, the said Edward Almond and wife, shall, and may occupy and dwell on the old tenement now on said lot, or such other dwelling as the said Hugh Hamilton can provide for them, whilst the said new tenement is building; now this indenture witnessed, that in consideration of the premises, and of the sum of one dollar lawful money to him, at or before the sealing and delivery hereof, by the said Edward Almond well and' truly paid, the receipt whereof is hereby acknowledged, he, the said Hugh Hamilton hath, and by these presents doth covenant, grant, and agree, to and with the said Edward Almond and Hester his wife, and the survivor of them, in manner following, that is to say, that he, the said Hugh Hamilton, his heirs and assigns, at his and their own cost and expense, shall and will, with the materials of the old house, or otherwise, build, or cause to be built, erected, and finished, for the said Edward Almond and wife, a tenement or dwelling house, of the dimensions, and form as herein before mentioned, with the chimney and fire-place therein, and other suitable accommodations, on the rear or north end of said lot of ground, and permit and suffer the said Edward Almond and Hester his wife, and the survivor of them, to have, occupy, possess, and enjoy, the same back building, or dwelling house, with the privilege of the yard and alley, as herein before mentioned, and free ingress, egress, and regress, into and from the same ; and until the same building is so erected, and finished, shall and will permit, and suffer, the said Edward Almond and Hester his wife, to occupy and dwell in the house now on the said lot, or such other convenient dwelling, as he, the said Hugh Hamilton, can procure for them whilst said back building is erecting, and finishing; and that for the same tenement, and privileges, he, the said Edward Almond and Hester his wife, shall be accountable, and pay to the said Hugh Hamilton, his heirs and assigns, a rent or sum of one grain of Indian corn per annum, and no more, during the term aforesaid. And the said Edward Almond and Hester his wife, hereby covenant, promise, and agree, that the said tenement and privileges, shall be occupied by them, the said Edward Almond and Hester his wife, and by no other person whatever, and shall not be let, or assigned, by them to any black family or person of colour whatever, and immediately on the decease of the survivor of them, the said Edward Almond and Hester his wife, the same tenement and privileges, become the sole and entire property of him, the said Hugh Hamilton and his heirs.”
    A witness on the part of the plaintiff below, of the name of House, gave in evidence, that Edward Almond called upon him in March, 1812, to do some repairs to the house on the lot in question; that he refused to do them. That the witness called upon the defendant, and asked him if he should do the work; the defendant said no; he had nothing to do with the house. The witness told him he understood the house belonged to him, the defendant; he replied, that he had nothing to do with the house, nor would he have any thing to do with it. That Almond did not send him to Hamilton, nor did he tell Almond that he would speak to Hamilton. That after this time, and after the death of Almond’s wife, considerable repairs were done to the house by Hamilton.
    
    The plaintiff further proved, that Almond and his -wife remained in possession of the said lot during their lives ; and that the house on the lot in question, was an old frame. The plaintiff claimed by a conveyance from Almond, dated some time previous to the death of the plaintiff. The defendant gave in evidence sundry receipts and other papers to prove the payment by him of the arrears of ground rent due on the lot when it was conveyed to him in 1803, and also to prove the payment of the rent accruing from 1803 to 1813, but the defendant had not built’a house on the north ■ end of the lot, nor was there any evidence of a request by Almond, or by the plaintiff to have such a house built.
    Upon this evidence, the counsel for the defendant insisted, first, that the defendant had a good title in fee simple to the lot; that there were no legal conditions created by the deed, and agreement of the 28th June, 1803, for the nonperformance of which the said lot could re-vest in the said Edtvard Almond or his assigns, but that the covenants in the said agreement were personal only; that the agreement to build was merely a covenant, and not a condition. Secondly, that if the defendant did take an estate upon condition, he had his life-time to perform it in, unless hastened by request. Thirdly, that if the estate granted was conditional, yet the title did not re-vest in Almond, without a re-entry or claim to re-enter, for the condition broken.
    But the Court charged the jury, first, that the provisions in the agreement of 28th June, 1803, were conditional, and Hamilton took but an estate upon condition. That the conditions in the said agreement were a part of the original contract to be performed by Hamilton, to perfect-his title, and that if they were not performed, the estate re-vested in Almond. Secondly, that the time in which these conditions were to have been performed was a reasonable time, of which the jury were to judge, and that if Elamilton neglected to perform all the conditions or any part of them, his title fail- • ed, and that Almond had a right to convey to any other person ; and that a demand or request of his performance of the conditions was not necessary to be made by Almond. That no-lice of the non-performance of the conditions should have been given by Almond to Hamilton, and also of the claim of Almond previous to being in of his original estate, and that the evidence of House went to prove siich notice, of which the jury were to judge. Thirdly, that no re-entry or claim to re-enter was necessary, as Almond remained in possession under the agreement. A verdict was found for the plaintiff.
    A. S. Sergeant and Kittera, for the plaintiff in error.
    1. The conveyances of the 28th June, 1803, amounted only to a personal covenant on the part of Hamilton, to build a house, and nothing more was within the intention of the parties. This covenant was for Hamilton’s benefit, and for the purpose of enabling him to use the old house. The words “ on condition” are used, but they are only by way of recital, in a separate instrument. They may perhaps shew, that the grantors intended an estate upon condition, but they have not used those words in the conveyance of the property, which are requisite to create it. Conditions are not favoured : and the words proper to create them must be contained in the grant: they are not to be inferred from uncertain words or recitals. Lit. sect. 328. Co. Litt. 204. a. 5 Vin. 44. 54. 4 Leon. 2.
    
    
      2. If the building of the house is to be considered the condition on which Hamilton’s estate was to depend, there is no time limited within which he was to perform it. It being left at large thus by the assent of the parties, he had by law his life-time to perform it in. Co. Litt. 208. b. If this is not the case, at what time was there a forfeiture ?
    3. If this estate is to be considered as forfeited for breach of the condition, there ought to have been a re-entry to vest the estate. Till such re-entry Almond had no estate, and could not convey it to Elliott. Nor did Elliott even enter after the death of Almond, as he might have done if there was a forfeiture. What acts amounted to notice so as to supply the want of a re-entry, was a question of law, and ought not to have been left to the jury.
    
      Browne, contra.
    1. The conveyances must be taken together, and considered as one. They contain apt words to make a condition. The words, “ on condition,” are sufficient. Lit. sect. 328. Shep. Touch. 121. 10 Co. 35. To construe this a condition will be to fulfil the plain words of the instruments, and the intention of the parties, which was, that Almond and his wife should enjoy a comfortable house to reside in; and this was the main object of the grant. The evidence shews, that Hamilton considered the estate as lost by his non-performance of this condition, as he declared he had nothing to do with it.
    2. As no time is limited, the law will appoint a reasonable time for performance. At any rate it ought to have been done in the life-time of Almond and wife; otherwise the object of the condition is defeated.
    3. There was no necessity for a re-entry, Almond was already in possession, and could not enter. Entry is necessary only for one out of possession. An entry is not required where it would be a vain and useless ceremony. By the terms of the instrument of 28th June, 1803, the estate “immediately on the decease of the survivor,” was to become the property of Hamilton, which is in the nature of a condition precedent.
   The opinion of the Court was delivered by

Gibson J.

Edward Almond, under whom both parties claim, conveyed the premises to the defendant by a deed, dated the 28th June, 1803, in consideration of 10 dollars, and payment by the grantee of all ground rents, to which the premises were subject, then due, or that should become so thereafter. At the same time, the parties executed an indenture, which recites the deed, and further, that it was the intent and meaning, “ and the deed of conveyance .to the said Hugh Hamilton was on this condition and mutual agreement between the parties,” that Hugh Hamilton should indemnify Edward Almond for all costs and charges by reason of the non payment of the quit rent due, or to become due; and would also build a dwelling house on the back part of the lot, and suffer Edward Almond and his wife to reside there during their lives ; and until it should be built, they were to reside in the old tenement then on the lot. After this recital follow covenants for mutual performance of the agreement. Hugh Hamilton paid the quit rents, but did not build the dwelling house. Edward Almond and his wife resided, during their lives, in the old tenement, without any request to hasten the performance of Hugh Hamilton’s part of the agreement; and some time before his death, Edward Almond, thinking the estate had re-vested in him by reason of the non-performance of the condition, executed a conveyance to the plaintiff, who, after Edward Almond’s death, brought this ejectment. It is clear the indenture is to be taken in connection with the deed; for being parts of the same transaction, and executed at the same time, they form but one conveyance. In Cromwel's case, 2 Rep. 75, it was resolved, that a deed, a fine, and recovery, though made, suffered, and levied at several times, make but one assurance, because they all tend to perfect the original bargain according to the true intent and meaning of the parties. Although there is, as to the timé of creating a condition, a difference between contracts executed, and contracts executory, so that, in a feoffment of lands, the conditions must be created at the time of the grant; yet it need not be contained in the same charter with it, but is sufficient if it is in another deed, sealed at the same time. Co. Lit. 236. a. A condition must be reserved by words used by the grantor, and I admit, the covenants on the part of Hugh Hamilton can have no operation for that purpose; but the indenture being-sealed by both parties, and therefore the deed of both, the question is as to the effect of the recital contained in the premises, which unquestionably is not peculiarly the language of either, and which contains words perfectly appropriate to create a condition. The word proviso, which is the language of both,and which is more equivocal, and less operative, than the words sub conditioner has been held to create both a covenant, and a condition. If then, the intention is clear, and expressed by proper words, why should the grantor be, for remedy, restrained to the covenant? The strongest reason is, that a recital contains no direct affirmation^ — all being expressed under a whereas — and hence it is argued, that however we may suppose the parties intended an estate on condition, still, from the operative words of the deed, it is evident no such intention was executed. It is indeed laid down in Vaughan, 74, that a recital in a true deed, that other deeds were sealed and delivered, does not make such deeds true deeds, and that a false recital does not conclude the parties,.or those that claim under them. But the reason there was, because the recital was of a fact that was past, and not a present part of the agreement: and besides the questi°n was, whether in a special verdict the finding of a deed in hcec verba which recited the making of another deed, was a sufficient finding of the deed recited; and it is very plain it was not; because a recital is but evidence of the fact, and not conclusive ; and a finding of the evidence only, and not the fact itself, is always insufficient. That, however, was a very different case ; for I do not here consider the clause in question as a mere recital of a past circumstance stated only to introduce the motive for the covenants that follow, but as a declaration of the present intention and agreement of the parties. The recital being in the past tense is immaterial, for the fact recited was part of the same transaction. Charters are commonly made in the perfect tense, (dedi et cotices^ si,) yet they shall be taken in the present tense, says Per~ ■kins, (sect. 741,) who gives a number of examples to shew, that in the construction of clauses containing conditions, the tenses of the verbs are often changed to get at the real intention of the parties. In 1 Leon. 112. case 164, it is said, a recital is of itself nothing, but being joined to, and considered with the rest of the deed, it is material, and amounts to an agreement: and therefore, where a man by deed recites, that he is possessed of a certain interest in land, and assigns it over, being bound in a bond to perform all the agreements in the deed, if he is not possessed of such interest the bond is forfeited. So a recital in marriage articles, that “ whereas the defendant was to pay to the plaintiff 1000/. for the marriage portion of the wife,” was held to be a ground to support an action of covenant, Graves v. White, 2 Freeman, 57: and on the same principle, an exception in a deed indented, is held to be an agreement. Cro. Eliz. 657. The i*ecital then being a declaration of the present intention, and part of the original contract of the parties, amounts to a reservation of a condition on the part of the grantor, to the advantage of which, in addition to the security, afforded by the covenants, he is fully entitled. In truth, it is unreasonable to suppose he would have parted with the title, relying only on a covenant, whether personal or running with the land.

But it is argued., that if there were a condition, the feoffee had his whole life time to perform it, unless he were hastened by request: and on the other hand it is said, it was broken, by not being performed within a reasonable time, or at all events at the death of Edward. Almond the grantor. The last position rests on the authority.of Lord Clifford's case, 18 Ass. 18, which was much shaken, if not entirely overruled by the decision in Cromwel 's case, 2 Rep. 78, for Lord Coke there tells us, that a difference was taken by some of the Judges, between the death of the feoffee, and that of the feoffor, before any estate made according to the condition: for in case of the former, the condition is broken, and in that of the latter, it is not. He was of opinion also, that in Clifford's case, the Court went on other grounds than.the death of the feoffor, and that the judgment does not warrant the doctrine usually deduced from it. In the case before us, the point is at all events immaterial, because unless the condition were broken before the conveyance to the plaintiff, he cannot recover; for although chancery might perhaps compel Edward Almond, or his heirs, to execute a new conveyance if the estate were acquired after the execution of the first deed, yet it would not compel him to take advantage of the forfeiture, in order to re-acquire the estate for the benefit of the grantee. There can be a recovery, only in case the condition were to be performed presently, and to re-vest the estate, an entry by Edward Almond, as being already iii possession were unnecessary. As to the first, there are a variety of distinctions between feoffments and obligations, and also between the various kinds of acts that may constitute the condition of either; and of these it is unnenecessary to speak further than to say, it is an undoubted general rule, that where the condition is to be performed to the feoffor himself, and there is no limitation as to time but only as to person, the feoffee has his whole life time to perform it. The reason is, that conditions, not being favoured by the law, are taken strictly; and therefore a literal compliance with their terms is all that is required. But to this there are exceptions; in which, from the reason and nature of the thing, the condition shall be performed according, not merely to the letter of the agreement, but to its spirit, and the true intent and meaning of the parties. Thus in the case of Andrews v. Blunt, reported in 3 Dyer, (but with the omission of this point,) it was held, says Lord Coke, who was present when the Court gave judgment, that if a man grant an advowson on condition that the grantee shall re-grant the same to the grantor in tail, and the church becomes vacant before the re-grant, although there has been no request by the grantor, the condition is broken, because the grantor cannot have all the benefit intended him by the re-grant, which was to have all the presentations during his life. 5 Fin. Condition. E. b. pi, 2. So if one enfeoff another, on condition that the feoffee shall grant the feoffor a rent or annuity during his life, payable yearly at Michaelmas and the Annunciation; in this case, the feoffee has not his lifetime, but must perform the condition before the first of those feasts, for otherwise, the feoffor would not have all the advantage of the rent intended him by the condition. Lord Cromweps case, 2 Rep. 78. And the same principle was resolved in Andrews’s case for this reason, that if it were not so, the feoffor would not have it during his life. Co. Lit. 208. b. From a view of all the cases, the rule seems to be, that where a prompt performance of the condition is necessary to give the feoffor the whole benefit contemplated to be secured to him; or where its immediate fruition formed his motive for entering into the agreement, the feoffee shall not have his life-time for performance, but only a reasonable time. Now it cannot be doubted, that the immediate enjoyment of the dwelling house described in the indenture, was the principal object Edward Almond had in view. A secure retreat, sufficiently large to accommodate him and his wife, in which they might spend their remaining days in peace and comfort, undisturbed by the cares of the world, seems to have been the extent of his aim, and the operative cause of his entering into the arrangement. In proportion therefore to the delay in erecting it, would his enjoyment of the benefit be abridged. In fact, nothing but prompt performance stands even with the letter of the contract, which speaks at the time of its date, and requires the feoffee to permit the feoffor and his wife to reside in the new building during their lives j and this could not be fulfilled by erecting it so as to enable them to spend but a part of their lives in it. The true construction then is, that the condition was to be performed in convenient time. That being the case, there was not, by the acquiescence of Edward Almond, any waver of performance, as contended; nor could there be ; for otherwise there would be no forfeiture in any case, without a precedent request, and that would be equivalent to giving the feoffee his life-time in every instance where he was not hastened by request,'and would entirely destroy the value of the distinction I have endeavoured to establish.

It is said however, that if there were a forfeitnre, the estate did not re-vest, as there was no entry by any one. Now I take it to be clear, that neither entry nor claim by Edward Almond himself was necessary, for he was already lawfully in possession. If, says Littleton, land be granted to a man for five years, on condition, that if within two years he pay forty marks, then he shall have the fee, otherwise but the rterm of five years, and livery of -seisin is made to him, here he has a fee simple conditional: but if the condition be not performed within the time, the freehold shall be adjudged to be in the grantor, ’ because, he cannot enter at the end of the two years, for the grantee is at all events in by title, for the five years. 1 Inst.-216. b. So if a man grant a rent charge in fee out of his land, the rent shall be extinct, on a breach, of the condition, without any entry or claim; for he is in possession, and need make no claim on his own land: and for the same reason if a feoffee in fee, on condition, let the land for five years to the feoffor, and during the term there is a breach of the condition, the estate re-vests in the feoffor without entry or claim. 1 Inst. 218. b. But, it is said, that after the death of Edward Almond, the plaintiff, his grantee, who never was in possession, might have entered. That could not be ; for none but the feoffor, or his heir can enter ; and the reason why a right of entry cannot be assigned, is, that a contrary doctrine would favour maintenance and promote litigation. 1 Inst. 214. As then neither the feoffor nor his assignee could enter, he would have been without remedy, if the estate had not re-vested in him by operation of law, without any act done on his part.

But the Court charged the jury, that although, in lieu of an entry or claim on the land itself, notice to the feoffee of the non-performance of the condition was necessary, yet that evidence given in the cause, that the latter declared to the witness he had nothing to do with the house, and forbade him to make any repairs on his account, was proper to go to the jury, to prove notice had in fact been given : and this is excepted to. I however can see no necessity for notice at all, and therefore the error, if there was one, was not prejudicial to the party by whom it is assigned. Notice is never superadded to an entry, but is said by the counsel to be necessary only in lieu of one when it cannot be made. Then the object of the entry itself, must he to give notice to the feoffee. It is not so, however, but to restore to the feoffor the actual seisin which passed from him at the time of the feoffment. Entry is an act in pais, which in point of notoriety is equal, and analogous to, the ancient feodal investiture, which always took place in the presence of the other vassals, the feodal peers of the grantee: its object therefore, in case of a condition broken, is to give notice of the resumption of seisin, not to the grantee, but the pares or freeholders of the county. 2 Bl. Com. 209. 3 Bl. Com. 174, 175. To what end should the feoffee have notice ? It may be said he should have it in this instance, to prevent him from continuing to pay the quit-rents after Edward Almond had determined to take advantage of the forfeiture, which to permit him to do, would be a fraud. I will not say there may not be such a fraud on the part of the feoffor as will entitle the feoffee to equitable relief, but mere want of notice will not constitute it. The feoffee is a tortfeasor who knows he has incurred a forfeiture, and therefore has reason to expect the infliction of the penalty : that ought to put him on inquiry, and if he afterwards fruitlessly expend his labour or money, he will have himself to blame. The same reason would, for the purpose of preventing improvements being made after a forfeiture, require an. entry, where the feoffor is hot already in possession,'to be made presently after failure to perform the condition: nothing, however, short of the statute of limitations will bar it — even a descent cast will not. But were the' rule as laid down by the Court below, still the evidence appears competent to prove notice as far as it went. .'From ‘'Hugh ÍJarfiilton’s declaration, that he had nothing to do with the property, a jury might perhaps infer, he knew that Edward Almond had rescinded the contract, and this could only be done by notice, if notice were necessary. We are of opinion, that the judgment should be affirmed.

Judgment affirmed.  