
    Keene v. Lee.
    October Term, 1793.
    Devise of Land upon Condition — Performance—Case at Bar. — Devise of land, to A, upon condition, that as soon as be arrives at tbe aere of twenty-one, be joins tbe executors in a conveyance of certain slaves, to the persons wbo may purchase them from tbe executors, upon A’s arrival at full age, be made a declaration in writing, which was recorded; by which he agreed to perform the conditions of the will. He afterwards sold and conveyed tbe land to B, and then by deed settled the slaves upon his family. This last deed is no breach of tbe condition, being made without a valuable consideration, and A was not bound to convey the slaves until they were sold by tbe executors, and be was required to join in the conveyance of them to tbe vendees. The first declaration of A, passed away all bis right to the slaves, and incapacitated him to make the settlement.
    Ejectment in the District Court of North-umberland, brought by the appellee. The parties agreed a case, in substance as follows, viz.
    That William Keene the 1st, being seized &c. by his will, made in 1681, devised 240 acres of land, (part of the tract in Question) to his son William and his heirs for ever, and if he died without issue, remainder over.
    That William Keene the 2d, being seized of the said 240 acres of land, as well as of 260 acres bequeathed to him by Mrs. Banks, (the residue of the land in the declaration mentioned) devised the whole to his son Newton and his heirs for ever.
    That Newton, being seized &c. by his will made in 1770, devised to his executors his lands in Fairfax and Loudoun, and all other the lands and slaves to which he was entitled, as heir by the mother’s side to John Woodbridge, to sell for payment of debts; and if there remained more slaves than were necessary for this purpose, he devised them equally amongst his children. He then devised as follows, viz; “I give to my wife my dwelling plantation, and tract of land, (being the land in question) during her widowhood, and after her death, or widowhood, I give the same to my eldest son William, to him and his heirs, on this condition, that my said son shall, as soon as he arrives to the age of 21 years, join in, and make sufficient deeds for conveying to the purchaser or purchasers of my said land in the county of Fairfax, an absolute estate in fee simple, and shall also join in the sale of the aforesaid negroes, as my said executors may sell for the payment of my debts, and suffer the remainder of the said slaves to be enjoyed, and go for ever as I have before bequeathed them; but in case my said son does not comply with the aforesaid condition, then,” he gives the dwelling plantation and tract of land under the same condition, first to his son Thomas, and then to his son John.
    The testator then proceeds to devise as follows: “Item, it is my will, that if my son William, die without heir of his body, before he comes to the age of 21 years, that the land above devised to him, shall go to my son Thomas and his heirs, yet it is my meaning, that if he attain that age, he shall enjoy a fee simple in the said land, with the condition aforesaid annexed.”
    That William the 3d, in the year 1775, and after the death of his father executed a paper under his hand and seal, which was duly recorded, by which, after reciting that he had just attained full age, and had considered his father’s will, he declared that he would abide by, and perform the directions of the same, and the conditions therein contained.
    That the executors sold the land in Fair-fax, pursuant to the power given them by the will of Newton Keene, and *that his son William, joined them in a conveyance of it to the purchaser.
    That the negroes, to which the said Newton Keene was entitled, as heir by the mother’s side to John Woodbridge, mentioned in the will of Newton Keene, were at the time of his death, and have been ever since, in the adverse possession of George Yerby; and that a suit has been commenced by the executors, and is still pending for the recovery of them.
    That in the year 1789, William Keene the 3d, executed a deed, conveying to trustees all the slaves mentioned in his father’s will, (to which he was entitled as heir on the mother’s side to John Woodbridge,) for the use of the wife and children of the said William; with a power to the trustees, to sue for and recover the said slaves, for the uses mentioned in the deed.
    That the said William Keene the 3d, did In the year 1779 sell and convey all the land, to which he was entitled under the will of his father, and which is the land in the declaration mentioned, to the lessor of the plaintiff, in fee simple.
    That after the execution of this deed, the lessor of the plaintiff used the land in the declaration mentioned, for some years, for the purpose of a cart way, to and from his other land; and that the defendant, who is the second son of the said Newton Keene, entered upon the same, about the year 1788, and still keeps possession.
    That Robert Keene, the son of William the third, is heir at law of the said William, and is yet living1.
    That the widow of Newton Keene, after his death, viz. in 1771, appeared in court, and renounced all benefit under the will of her said husband; after which, William Keene the 3d, entered upon the lands in the declaration mentioned, and allotted to the widow her dower in the same, according to a survey and plat, which are annexed and agreed.
    They agree the lease, entry and ouster, and if upon the whole matter, the law be for the plaintiff, they agree that judgment shall be entered for him, for his term yet to come, in the land in the declaration mentioned ; if the law be for the defendant, then judgment to be entered for him.
    Judgment upon this special verdict was •given for the plaintiff, in the District Court.
    Campbell for the appellant.
    I am to contend, that the estate in question, devised to William Keene, by the will of his father Newton Keene, was to take effect upon the performance '"'of a precedent condition. The estate is not to vest, until his arrival at the age of 21 years; immediate^ after which, he is to join in a conveyance of the slaves. It is necessary therefore, that William Keene, or those claiming under him should shew, that he had strictly performed the condition ; since no obstacles however great, could excuse him from the performance. The declaration made in 1775, agreeing to perform the conditions in the will, cahnot be said to amount to a performance, because this is a thing merely executory, whereas the thing to be done, should have been executed.
    The cause of forfeiture which I have just considered, is in the omission of the dev-isee, to convey the slaves. But the conveyance of those slaves to trustees, for the use of the family of the devisee, is a' more active and deliberate breach of the condiL tion, and has for ever put it out of his power to perform it, although all other obstacles should be removed.
    Warden and Washington argued the cause for the appellee.
    There is certainly a material difference, between a condition precedent, and subsequent, both in their nature, and effects; if the former, the condition must be strictly performed, before the estate can vest; but if the latter, the estate is immediately vested, and the continuance of it, depends upon the performance. As to the former, ■ : 1 : 1 i it is admitted that nothing, not even the act of God, or of law, can dispense with a strict performance. In the latter, if the performance be prevented from any such cause, the estate becomes absolute in the possessor; for conditions which go to defeat estates, are odious, and to be taken strictly. Shep. Touch. 129 — 130.
    The condition in question is most certainly subsequent. Immediately after the death of Newton Keene, the remainder vested in his son William in interest; and upon the death of the widow of the testator, it vested in possession. But the condition was not to be performed, until William came of age, which must have been subsequent to the vesting of the estate; and therefore, if the performance was prevented by the act of law, the estate is absolute in him.
    Get it be here premised, that as to the negroes, the condition is nugatory in itself; because they being devised to the executors, with a power to sell, it was entirely unnecessary to require, that William should join in the conveyance, and therefore if he had really refused to do so, tho’ it might have prevented an estate from vesting, it would not have divested an estate.
    *But suppose the act required to be done, were material; it is denied, that a forfeiture has taken place, either by omission, or by any act of commission.
    As to the first, the charge is, that William has not joined in a conveyance of the slaves mentioned in his father’s will. But before this is relied upon, it should appear, 1st, that the executors had found a purchaser for the slaves, and 2dly, that they had produced a conveyance of them, requesting him to join. Bor William Keene, is not authorized to sell, but is required, to join in conveying to the persons, to whom the executors had previously sold. But again: neither William Keene, nor the executors could convey the negroes until they were reduced into possession. Such a conveyance would have been ipso facto void, besides exposing the parties to a severe penalty. A condition to do a thing, which amounts to maintenance is void. Shep. Touch. 129, 1 Hawk. pi. Cr. 255, Rolls Ab. 417. If then this be a condition subsequent, the performance of it is forbidden by the law, and therefore, no forfeiture can have incurred.
    2dly, What act has William Keene done, to disable himself from performing the condition? Let it not be forgotten, that so soon as he arrived to full age, he bound himself by a declaration, sufficient to restrain him from any active breach of the condition. But if not so, the deed of 1789 was not a breach. It is found, that at that time, the negroes were in the adverse possession of another; the deed therefore was void, both at common law, and by the act of Assembly against the selling of pre-tensed titles. If so, it could produce no disability whatever in William Keene, if the negroes should ever afterwards be recovered, and reduced to possession. If a feoffee, upon condition to reenfeoff, be dis-siezed, and then he take wife, and enter into a statute, &c. yet before his entry, this is no breach of the condition, for ’till then, the charge doth not bind the land. Shep. Touch. 143, Co. Eitt. 222, 2 Co. Rep. 59, b. Suppose then, that the negroes in question should hereafter be recovered, and admit that the trustees in the deed of 1789 could recover damages, under an idea, that this deed, though not valid as a conveyance, amounted to a covenant to convey, when the negroes should be recovered, still such a recovery would produce no disability, and most certainly, a Court of Equity, would never decree, in the very teeth of the statute, a specific execution of such an agreement.
    William Keene then, cannot properly be charged with a breach of the condition, until having it in his power, legally, *to perform it, and being requested to do so, he refuses. Besides, the deed of 1789, is not only voluntary, but fraudulent as to the appellee, who had purchased and paid a valuable consideration for the land, ten years before this deed of trust was made.
    But if all these points are against the appellee, he is most clearly entitled to the 240 acres, which were entailed upon William the 2d, by the will of his father, and therefore descended upon William the 3d, unclogged with the condition in Newton Keene’s will.
   The PRESIDENT

delivered the opinion of the court.

There can be no dispute about the 240 acres, which being entailed ay William Keene the first, descended upon William the 3d, free from the conditions in the father’s will, and being converted into a fee simple estate in 1776, he was enabled to convey to the lessor of the plaintiff; a compleat and absolute estate in this parcel of land, by the deed of 1779.

But as judgment is given for all the lands mentioned in the declaration, without distinguishing this part, from the other, it must be reversed, unless the plaintiff’s title to the whole can be sustained.

The condition annexed to this devise in the will of Newton Keene, is active, so far as it requires the son, when of age, to join with the executors in a conveyance of the slaves to those, who might purchase from them; or passive, as it injoins him, to suffer this property to be enjoyed by the devisees, in case they were not sold. The condition was certainly nugatory, since the devise to the executors to sell, or to the legatees, was perfect, and would have included the heir, without any act on his part. It was added, probably, from abundant caution, to remove any doubts of the title from the minds of purchasers. But though it was unnecessarily required, the devisee was not therefore excused from the obligation of performance, since he took the estate subject to that condition. This then brings us to the Question, whether it has been sufficiently performed, or not?'

In January 1775, the devisee executed a writing under seal, reciting, that in the preceding month he had attained full age, stating the condition on which the land, was devised to him, which he had considered, and declaring, that he would abide by the directions, devises, and conditions of the will, and join in any sale of the lands and slaves, according to the will.

It is objected, that this is not a conveyance, but merely an executory declaration. As to the lands, this is true; the title *to them cannot pass at law, but by a regular conveyance; yet a Court of Equity would have compelled him, to release to the person, who might purchase from the executors. But it is unnecessary, to consider the extent of the obligation, which this-declaration imposed upon William Keene, as to the land1, since it is found, that he joined the executors in a conveyance of it.

As to the slaves, the declaration under consideration, is important. This species of property may pass, from one to another, without a deed or written contract, if a valuable consideration be given. And if William Keene had instituted a suit for the recovery of these slaves, the writing in question, would have been such an evidence of a contract, as to have created a bar to his recovery; not by way of estoppel, but as passing his title.

But it was contended, that he ought, as soon as he came of age, to have conveyed his right in the slaves to the executors.

This would have been doing more than the testator required. He is only enjoined, (in case of a sale made by the executors,) to unite with them in a conveyance to the purchaser, and this he was not bound to do, unless required by the executors. If no sale were made by them, he was then bound, to suffer this property to be enjoye'd by the devisees.

It is objected, that the deed of trust made in 1789, has disabled William Keene from conveying to a purchaser when required, and has also deprived him of the power, of permitting the enjoyment of the property by the devisees, within the meaning of the testator. To this, there are two sufficient answers.

1st, That the settlement is merely voluntary, and therefore fraudulent as to creditors and purchasers, and indeed as to all the world, except the grantor himself. It is therefore void, as to the appellee, who claims under a prior title from William Keene. Besides, the declaration made in 1775, and recorded, had passed away his. interest in the slaves, to the uses mentioned in his father’s will, and therefore the deed of 1789, could not operate to defeat it.

2d, If it could be admitted, that this deed produced a forfeiture, still the remainder man could not lawfully enter in 1788, before this deed was made.

Upon the whole, we are of opinion, that the conditions in the will of Newton Keene have been performed, and that the judgment must be affirmed.  