
    *Kellam’s Ex’or v. Kellam et als.
    January Term, 1856,
    Richmond,
    1. Common Law Conveyances — Void Conditions. — A condition reserved in a common law conveyance, for the benefit of a stranger to the deed, is void.
    
    2. Deeds Void Conditions -Enforcement in Equity.— A court of equity will not enforce as a charge, a provision in a deed, which was void at law, as a condition.
    3. Common Law Conveyances — Condition for Benefit of Stranger — Enforcement by Stranger’s Executor.— A reversion was granted by a common law conveyance to T. H. K. upon condition that at a particular time he should pay £150 to J. G. K., with a provision, that if he failed to pay the £150, at the time specified, J. G. K. should take possession of the land. Neither T. H. K. nor J. C. K. was party to the deed. After the death of J. C. K., upon a bill in equity, by his executor, to charge the land with the payment of the £150: I'ltoT/i),
    That, even if the condition for the benefit of J. C. K. was valid, his executor could not enforce it.
    On the first day of September, in the year 1808, Matthew Beard and Margaret his wife, conveyed to Thomas Hatton Kel-lam the reversion of the said Margaret, after reserving a life estate to the said Margaret, in and to a certain tract of land in the county of Accomac by deed, as follows :
    “This indenture, made this the first day of September, in the year of our Lord one thousand eight hundred and eight, between Matthew Beard and Margaret his wife, of the one part, and Thomas Hatton Kellam and John Custis Kellam, of the other part, witnesseth: That the said Matthew and Margaret his wife, inheriting a reversion-ary interest and estate in and to that tract, or part, or parcel of a tract of land, called and known by the name of Muir’s Neck, lying and being in Accomac county, and between Pungoteague creek on the north, and a creek called Butcher creek on the south, bounding on the bay of Chesapeake, and adjoining another part of said neck of land, the reversionary *estate in which was heretofore devised by "Walter Hatton, dec’d, to his nephew John Custis Kellam, above named. The said Margaret, wife of the said Matthew, being sister to, and heir at law of, Anne Hatton ats. Taliaferro, who, by devise of the aforesaid Walter Hatton, was entitled to a reversionary interest and estate in the aforementioned part or parcel of a tract of land called Muir’s Neck as aforesaid, and she, the said Anne, dying, leaving no issue, her said reversionary interest and estate in and to said tract of land naturally devolved to her said sister and nearest of kin, the aforesaid Margaret, wife of the said Matthew, immediately at the decease of Elizabeth Muir and Sarah Muir, the present possessors and life-tenants. And the said Margaret at this time having no issue, nor likelihood of having any by the said Matthew, her present husband, and no other issue excepting the said Thomas and John above named, and desirous of doing equal justice to her two said sons, they, the said Matthew and Margaret his wife, first reserving the natural life of her, the said Margaret, in and to the aforesaid reversion and remainder in the said land called and known as Muir's Neck aforesaid, for and in consideration of the natural love and affection that they bear toward the said Thomas Hatton Kellam, give, grant, en-feoff and convey, and by these presents hath hereby acknowledged to have granted, aliened, enfeoffed and confirmed, unto him, the said Thomas Hatton Kellam, and his heirs, (said John Custis Kellam claiming the reversion already in the moiety or one-half of the said neck of land,) all that northern moiety of the aforesaid neck of land, or reversionary interest in the same, after decease of the said Margaret and the present life-tenants above named, on the express condition, that the said Thomas pay over to his said brother, the said John Custis Kellam, at the end of one year after he, the said Thomas, attains to lawful age or gets possession of said reversion, one hundred and fifty pounds, to enable his said brother, the aforesaid John, to build on and improve his other half or moiety of said neck of land. *But in case the said Thomas fail to comply with the said covenant and condition, and persists in refusing to make payment to his said brother of the said one hundred and fifty pounds, at or upon the times stipulated, he, said John Custis Kellam, shall, in virtue of these premises, take possession of one-half of the said northern moiety of the said neck of land, or the said Margaret’s reversion in the same. But in case the said Margaret should recover her health, which at this time is much decayed, and bear more children, in such case this said deed and instrument of writing shall be deemed null and void, and of none effect, otherwise, and upon condition of the payment of the said one hundred and fifty pounds by the aforesaid Thomas to his said brother, the aforesaid John, the said Matthew and Margaret his wife confirm the aforesaid land and premises unto him, the said Thomas Hatton Kellam: To have and to hold the said bargained premises as aforesaid, with all and singular the heredit-aments and appurtenances to the same belonging, unto him, the said Thomas Hatton Kellam, and his heirs lawfully begotten, and to his and their proper use and behoof, and to and for no other use, intent or purpose whatsoever. In witness whereof, the said Matthew and Margaret his wife have hereunto set their hands and affixed their seals, the day and date first above written.”
    Thomas Hatton Kellam was eighteen years of age at the date of the deed. Margaret Beard came into possession of her life-estate in the tract of land, conveyed by the said deed, in the month of December, 1816. Thomas Hatton Kellam died on the 25th September, 1841, leaving a will by which he devised the northern half of Muir’s Neck, called Evergreen, to his son Thomas H. Kellam. John Custis Kellam died on the Vth September, 184S, leaving a will by which he devised the southern half of Muir’s Neck, called Myrtle Grove, to his nephew Thomas H. Kellam for life, with remainder to his eldest son, and a contingent limitation over in default of issue. Margaret Beard, the grantor in the deed, lived until the 2d January, 1846.
    *In July, 1847, the executor of John Custis Kellam, exhibited his bill.in the Circuit Superior Court of Chancerj' for the county of Accomac, against the executors of Thomas H.- Kellam, dec’d, and his son and devisee Thomas H. Kellam, to recover the one hundred and fifty pounds reserved to his testator by the deed of Matthew and Margaret Beard, with interest thereon from 2d January, 1847, being twelve months after the decease of the tenant for life, and the bill prayed, that in default of payment by Thomas H. Kellam, one moiety of the tract conveyed by the deed of 1st September, 1308, might be sold, and the proceeds applied to the payment of the debt of the complainant and the costs of the suit.
    The defendants demurred to the bill, and also answered.
    Thomas H. Kellam, jr. in his answer, pleaded the statute of limitations and the great lapse of time, and insisted, that the amount claimed bj the bill had been paid by his father in his life time; that the £ ISO, was to be applied to the improvement of the lower part of the neck of Myrtle Grove, of which he was the devisee under the will of his uncle, and if there was a decree against him for the money, he had a right to have it .applied as directed by the deed, and consequently the complainant, who was an executor, had no sort of interest in the payment of the £ ISO. The executors of Thomas H. Kellam answered, admitting the facts alleged in the bill, and that thej did not believe that the £ ISO had ever been paid by Thomas H. Kellam, but insisting that it was no charge on his personal estate.
    The demurrer of the defendants was overruled by the court; but on the hearing, after the answers were- filed-, .the,.court ordered the bill to be dismissed with costs.
    The complainant appealed to this court.
    Patton, for the appellant:
    The one hundred and fifty pounds was a charge upon the land, which the executor may enforce. No presumption *of payment arises, because although the deed was executed in. 1808, there was no right to demand payment until the death of Mrs. Margaret Beard, at which time, Thomas Kellam was entitled under the deed to possession, and the presumption is, that he did not pay it until it was due.
    As to the objection, that the money was reserved to John C. Kellam for a particular purpose. It is well settled, that there is no obligation to apply it to the particular purpose. As in case of a legacy, the legatee takes, although he may not require or use the legacy for the purpose named in 'the will. This reservation was not a condition, but a conditional limitation. No right of re-entry was. reserved, because that could only avail- to benefit the grantor and his heirs. A condition for the benefit of a person not party to a deed, for the payment of money, and that he shall have the land, if money not paid, is valid. Thomas’ Coke upon Littleton, (1st Amer. edi.,)vol. 2, p. 11; Butler’s note to Coke’s Littleton, vol. 2, p. 769; 2 Bacon’s Abridg. tit. Condition, letter H, 118. These authorities clearly establish the right of the executor to enforce at law the payment of money secured by such conditional limitation, and a fortiori may he charge the land in equity with it.
    All conditions, strictly so called, are for the benefit of the grantor and his heirs; consequently, they are construed, when reserved to strangers, to be conditional limitations, to secure the benefit of the party intended. Pownal v. Taylor, 10 Leigh, 172.
    A distinction is pmde between a condition to pay a sum of money generally, and a condition to pay money at a particular time. In the former case, the death of the party entitled before payment, excused the performance of the condition ; in the latter it was otherwise. Whether that is sound legal doctrine now or not, it is such a forfeiture as equity will relieve against. 1 .Lomax Dig. 270.
    In the case at bar, the taking possession of the property *created a contract to pay the money. And there can be no doubt of the right of an executor to come into equity to enforce a charge upon land. And the heir has no right to complain, for in equity this conditional limitation was mere security for the payment of money. 2 Coke’s Littleton, p. 230; 2 Story’s Eq. g 1344, g 1324; 1 Lomax Dig. 277-279.
    Robinson, for the appellees:
    John C. Kellam cannot at law or in equity avail himself of any provision in this deed. At common law a stranger could not take under a deed. Viner’s Abridg. tit. Condition, A; Sheppard’s Touchstone, 120. The Code of 1849, p. 500, § 2, has made great change in the law in this regard, but that does not apply to this case. At common law there was a distinction between a deed and a will in this respect. Sheppard’s Touchstone, 123, 127. The grant in the case at bar is .by a strictly common law deed, not by a deed of bargain and sale, which passes possession, but it is a grant of a reversion with words apt to create a condition. It was conceded for the appellants, that the provision in this deed cannot avail John C. Kellam as a condition, and-therefore it was contended, that the provision should be construed to be a conditional limitation.
    It .cannot be held to be a conditional limitation. 1 Lomax Dig. 283. The cases cited by Mr. Patton from Bacon’s Abridgement are cases arising on the construction of ■wills. No stranger can take under a common law conveyance except by way of remainder. Storer v. Gordon, 3 Maulé & Selwyn, 323. When the fee has once passed out of the grantor, it cannot be any further limited to a stranger; but there may be such limitation by will, by way of conditional limitations or executory devises. 3 Lomax Dig. 279, 280; Eearnc on Con. Rem. 18, 270-4; Butler’s Note, 2 Coke Lit. 768; 1 Saunders on Uses, 155.
    In the case at bar, the fee was disposed of to Thomas H. Kellam, and no fee could be afterwards mounted *upon this to John C. Kellam. If it were intended that the latter should have a life-estate, that is determined by his death. The counsel for the appellant thought the fact, that this condition was for the payment of money, made a difference. But the cases cited by him to sustain this position, were cases arising under wills or deeds under the statute of uses. By the death of the parties, it having become impossible to perform the condition according to its terms, it is at an end, and the estate remains where it is. Sheppard’s Touchstone, 138. The heirs and personal representatives cannot avail themselves of a condition, unless it is given to them in terms. Sheppard’s Touchstone, 132; 2 Coke R. 79, B. Wood v. Bate, Palmer’s R. 513; 1 Lomax Dig. 269, ch. 2, § 1, 273; 2 Story’s Eq. § 1304. Where there are two conditions, and one becomes impossible by the act of God, the party is discharged from both. Laughter’s case, 5 Coke R. 41; S. C. Croke Eliz. 398; Warner v. White, Thomas Jones’ R. 95; Sheppard’s Touchstone, 382; 2 Story’s Eq. § 1307.
    If these doctrines be sound law, upon what principles can equity give relief? It is not like the case of a mortgage, which is regarded in equity as a mere security; for here, by the terms of the instrument, the estate is vested in the heir. Marks v. Marks, 10 Mod. 419; S. C. 1 Strange, 129. A court of equity will not interfere to divest an estate and enforce a condition subsequent, or what Mr. Patton styles a charge. 2 Story’s Eq. §1319; 4 Kent’s Com. 130. There is no case where a court of equity has enforced, as a charge, a provision which could not operate at law as a condition. There maybe cases of covenant or lien which a court of equity will enforce. That was the case of Pownal v. Taylor, 10 Leigh, 172. The executor upon any construction cannot maintain this bill. Winchelsea v. Norcliff et ais., 1 Vernon, 402.
    The party who is entitled to the land, if forfeited, is to have the money, if paid. If the executor were permitted to recover here, the money would go to pay debts *in. the course of administration, whereas clearly it should go to the devisee of the property to be improved, who is the defendant in the cause. So it is clear, that upon the demurrer the bill should have been dismissed.
    Now, upon the answer, Mr. Patton relies ! upon the averment, that the improvement | had been made upon the property by John C. Kellam in his lifetime, as showing a foundation for an action for monej had and received. But there must be a request to found such an action, and it is impossible to presume a request in this case. But even if there had been a request, the action for money had and received is barred by the statute of limitations, and the fact that such an action lay would be conclusive against the jurisdiction of equity. But after the lapse of so long a time payment must be presumed.
    Patton, for the appellants,
    in reply:
    The presumption of payment by Thomas H. Kellam, founded upon lapse of time, depends upon an erroneous construction of the deed. The true construction is, that it was not intended that he should pay the money before he got possession of the land. The expenditure by John C. Kellam on the improvement of land, created a personal right in him to recover the money. When one person had paid money, which it was the duty of another to pay, a request is presumed.
    As to the distinction between limitations by deed and by will, the intention must be looked to in both cases. In case of deeds, as well as wills, the courts, to effectuate the intention of the grantor, will construe a provision to be a conditional limitation, rather than a condition. It was admitted for the appellees, that a covenant or charge would be enforced. It is manifest here, that the design of the grantor was to create a charge. The words of the deed are, that John “shall take possession” of the land, not that he shall have title. Why should he take possession of the land, but to enforce the payment of the money? II was a mere *securitj. No title is conveyed to Thomas Kellam, but upon condition precedent, that he shall pay the ¿150 to John Kellam.
    
      
      See monographic note on “Deeds” appended to Fiott v. Com., 12 Gratt. 564.
    
    
      
      Tbe law is changed by the Code of 1849, § 2, ch. 116, p. 500.
    
    
      
      See monographic note on “Deeds” appended to Fiott v. Com., 12 Gratt. 561.
    
   TYLER, J.,

delivered the opinion of the court.

Margaret Beard, the mother of Thomas H. and John C. Kellam, being entitled tb the reversion in the northern moiety of a tract of land called Muir’s Neck, in the county of Accomac, which would fall in at the death of Elizabeth and Saralj Muir, united in a conveyance -with her husband Matthew Beard, on the first of September, 1808, by which the said Matthew and Margaret, in consideration of their natural love and affection for Thomas H. Kellam, gave, granted and conveyed to the said Thomas H. Kellam and his heirs,- all the northern moiety of the aforesaid neck of land, or the reversionary interest in the same, after the death of the said Margaret, “on the express condition, that the said Thomas pay over to his said brother John C. Kellam, at the end of one year after he attains lawful age, or gets possession of said reversion, ¿150, to enable his -brother to build on and improve the other half or moiety of said neck of land. But in case the said Thomas H. Kellam fails to comply with the said covenant and condition, and persists in refusing' to make payment to his said brother of ,£150 at or upon the times stipulated, he, the said John C. Kel-lam, shall, in virtue of these presents, take possession of one-half of the said northern moiety of the said neck of land, or the said Margaret’s reversion in the same.” It appears that at the date of this conveyance, the said Thomas H. Kellam was about eighteen years old; that both he and his brother John C. died before the reversion fell in, the mother, the life tenant, outliving both. In July, 1847, the bill in this cause was filed by the executor of John C. Kellam against the executors of Thomas H. Kellam and the devisee of the reversion, alleging that the conveyance to Thomas H. Kellam created a charge *on the land in favor of John C. Kellam, and asking a decree against the devisee of the reversion, and in default of payment, that the land might be sold and the proceeds . applied in discharge of the £150 and in-terest.

By the counsel for the appellees it is in-' sisted, that the conveyance by which this reversion was transferred from Matthew and Margaret Beard to Thomas H. Kellam was a common law conveyance — a grant of the reversion, was a condition expressed in the grant, the object of which was, in case of its non-performance, to defeat the estate granted, by entry reserved, and that such reservation being to John C. Kellam a stranger, and not to the grantors or their heirs, -that the condition is void. And it is admitted, if such is- the character of the conveyance and such the stipulation, that -such is the law. But it is urged, on behalf of the appellants, that the stipulation in the conveyance is either a conditional limitation of the estate or a charge on the .land, and in either event it will enure to the benefit of John C. Kellam and his representatives.

We think the construction of the stipulation in the conveyance by the counsel for the appellees is the true construction, and that the conveyance is the common law conveyance by grant. At common law, feoffment and grant were the two great means by which lands were transferred; feoffment operating on the possession, and grant on the estate or interest which the grantor had in the estate granted and which he could lawfully convey, and grant was the conveyance applicable to reversion, rents and incorporeal hereditaments generally; and it is, we think, only necessary to read the conveyance to determine its character as a common law conveyance. If the stipulation, then contained in this conveyance be not a condition, the breach of which the grantor or his heirs only could take advantage of, it must be either a limitation or a conditional • limitation. That it is not a limitation, is manifest from ■ the fact that the entire interest in the reversion is granted to Thomas *H. Kellam and his heirs, leaving nothing for a limitation over to operate on, as by this species of conveyance a fee cannot be limited on a fee. And if it had been the object and intention of the grantor to create a limitation, instead of granting the reversion to Thomas H. Kellam and his heirs with the condition annexed, the grant of the reversion should have been to John C. Kellam to hold the same until Thomas H. Kellam paid to him the £150, and then over to Thomas H. Kellam; and on the payment of the money, the period of limitation having arrived, the estate of the grantee would have ceased and determined without entry or claim, no act being necessary to “vest the right in him having the next expectant interest.”

Having then ascertained that the stipulation in this grant is not a limitation, and that the conveyance is a common law conveyance, it would seem unnecessary to determine whether the provision in the grant • is a conditional limitation or not. Because, though it might be adjudged to be a conditional limitation, yet it would not be valid in a common law conveyance. See 4 Kent’s Com. 126-127, where it is said: “To get rid of the difficulty under the old rule of law, that an estate could not be limited to a stranger upon an event which went to abridge or determine the previously limited estate, a distinction was introduced in the case of wills between a condition and a conditional limitation, and which has been supposed to partake more of refinement and subtlety than of solidity;” and after giving an example of a conditional limitation, he adds: “these conditional limitations, though not valid in the conveyances at common law, yet within certain limits they are good in wills and conveyances to uses.” And further, it seems to be necessary to create a conditional limitation by any instrument, that a particular estate should be carved out of the fee, because it is said that conditional limitations and contingent remainders are in fact the same, and the distinction is merely verbal; although Mr. *Fearne maintains a contrary doctrine. See note to Kent’s Com. p. 127, and the authorities cited.

The appellant in his bill, however, alleges, that a charge on the' land conveyed was created to the extent of the £ISO, and that he is entitled in a court of equity to enforce this lien and to have one-half of the land sold to pay the said .sum. To construe the condition contained in this grant into a charge on the land, or to treat the land as a security for the debt, would be to make- a new contract between the parties. The language of the instrument is plain and unambiguous; it is a grant of the reversion in fee, with a condition annexed, that if the grantee failed to pay a third party (John C. Kellam) £150 at a stipulated period, that then John C. Kellam should take one-half of the reversion granted. If this condition was operative in favor of John C. Kellam, the remedy was at law, by an action to obtain possession of the premises ; and if it was inoperative and void at law, a court of equity cannot give relief.

We are of opinion,therefore,that as the law was at the time this contract was made, no right accrued to John C. Kellam, which could be enforced by him or his representatives, either at law or in equity; that it is the case of a party claiming the benefit of a condition respecting an estate under an instrument to which he was no party and from whom no consideration moved; and that such a party was without remedy until the enactment of the 2d section of chap. 116, Code of 1849, and that this statute was enacted to embrace cases not before provided for. We are further of opinion, that in no aspect of the case could the executor of John C. Kellam claim title to the ,£150. The decree of the court below is therefore affirmed with costs.

Decree affirmed.  