And it has been held that, although a deed or conveyance contain a clause declaring the purpose for which it is intended the granted premises shall be used, if such purpose will not inure specially to the benefit of the grantor, but is in its nature general and public, and if there are no words in the grant indicating an intent that the grant is to be void if the declared purpose is not fulfilled, such a clause is not a condition subsequent. (11 Cyc., 1050; Raley v. Umatilla County, 15 Or., 172; Gilbert v. Peteler, 38 N. Y., 165; Rawson v. Inhabitants of School District No. 5 in Uxbridge, 89 Mass., 125.)

Recurring to the old law, which comes down to us as sound to-day as it was then, Sheppard's Touchstone (8 Ed., 121) has this upon the subject:

Conditions annexed to estates are sometimes so placed and confounded amongst covenants, sometimes so ambiguously drawn, and at all times have in their drawing so much affinity with limitations, that it is hard to discern and distinguish them. Know therefore that for the most part conditions have conditional words in their frontispiece, and do begin therewith; and that amongst these words there are three words that are most proper, which in and of their own nature and efficacy, without any addition of other words of re-entry in the conclusion of the condition, do make the estate conditional, as proviso, ita quod, and sub conditione. And therefore if A. grant lands to B. to have and to hold to him and his heirs, provided that, or so as, or under this condition, that B. do pay to A. ten pounds at Easter next; this is a good condition, and the estate is conditional without any more words. But there are other words, as Si, si contingat, and the like, that will make an estate conditional also, but then they must have other words joined with them, and added to them in the close of the condition, as that then the grantor shall re-enter, or that then the estate shall be void, or the like. And therefore if A. grant lands to B. to have and to hold to him and his heirs, and if, or but if it happen, the said B. do not pay to A. ten pounds at Easter, without more words, this is no good condition; but if these or such like words be added, that then it shall be lawful for A. to re-enter, then it will be a good condition.

But here note that these words proviso, ita quod, and sub conditione, albeit they be the most proper words to make conditions, yet do they not always make the estate by the deed to be conditional, but sometimes do serve for other purposes; for the word proviso hath divers operations besides; for sometimes it doth serve for and work a qualification, or limitation, and sometimes it doth serve to make and work a covenant only. And then only (being inserted amongst the covenants of the deed) it doth make the estate conditional, when there are these things in the case:

1. When the clause wherein it is hath no dependence upon any other sentence in the deed, nor doth participate with it, but stands originally by and of itself. 2. When it is compulsory to the feoffee, donee, &c. 3. When it comes on the part and by the words of the feoffor, donor, lessor, &c. 4. When it is applied to the estate, and not to some other matter.

A few modern cases will illustrate the significance given technical words appropriate to the creation of a condition, and when their technical sense will be disregarded; also when a condition will be declared even where no technical words adapted to its creation attend it.

In Gray v. Blanchard (8 Pickering, 283) a deed contained the following provision: "Provided, however, this conveyance is upon the condition that no windows shall be placed in the north wall of the house aforesaid or of any house to be erected on the premises within 30 years from the date hereof." It was objected to this conveyance that the words quoted did not constitute a condition, but evidenced a covenant only. Answering this objection, the court, speaking through Parker, chief justice, says:

The words are apt to create a condition; there is no ambiguity, no room for construction, and they can not be distorted so as to convey a different sense from that which was palpably the intent of the parties. The word "provided" alone may constitute a condition, but here the very term is used which is often implied from the use of

other terms. "This conveyance is upon the condition can mean nothing more nor less than their natural import, and we can not help the folly of parties who consent to take estates upon onerous conditions by converting conditions into covenants. It would be quite as well to say that the words mean nothing and so ought to be rejected altogether. No authority has been cited which bears out this suggestion; indeed the authorities are all against it.

It was further insisted that, because there was no clause of reentry for breach o condition in the deed, the provision was not strictly a condition going to the forfeiture of the estate, but the court here also held to the contrary, saying:

The law seems to be clear the other way. A clause of reentry is not necessary to make a condition. "Proviso, ita quod, sub conditione," make the estate conditional. Com. Dig. Condition, A 2. Other words, such as "si, si contingat," do not make a condition which will work a forfeiture without clause of reentry. Lit. sec. 331; Shep. Touch. 121.

In the case of Hooper v. Cummings (45 Maine, 359) it appears that one Jonathan Cummings conveyed to Nathan Woodbury and others— a committee appointed to build a meetinghouse in the town-certain acreage, and that in the deed, succeeding the covenants, were these words: "Providing the said committee and proprietors fence the said land and keep the same in repair." Deciding as to the effect of these words, the court says:

We may assume that the proviso in the deed created a condition subsequent, and, in this, we are sustained by most, if not all, the authorities, ancient and modern; notwithstanding it is to be construed strictly and most strongly against the grantor to prevent, if possible, a forfeiture of the estate. "If the word proviso be the speaking of the grantor, feoffor, donor, &c., and obliges the grantee, &c., to any act, it makes a condition, in whatever part of the deed it stands; and, though there be covenants before or after, is not material. 3 Com. Dig. 84 (Condition).

Sharon Iron Co. v. City of Erie (41 Pa. St., 341) is a case where the city of Erie conveyed by deed a piece of realty to the Sharon Iron Co., subject to the conditions, provisions, and stipulations of certain resolutions. These resolutions provided, first, "That the alienees shall, 'within one year, erect a breakwater in front of each of said lots, under the direction of the city councils.' 2d. That they shall, 'within two years, erect a good and substantial bloomery thereon, or within the limits of the city." " It being alleged that the iron company had failed to comply with these provisions, the city brought ejectment to recover the lots. The bloomery was not constructed as required by the resolutions, and the question came up as to whether the grantees had not forfeited the property by reason of the nonobservance of the condition. Speaking to that subject, the court

says:

The clause in the original resolution incorporated into the deed was a condition, not a covenant, and "where the language imports a condition merely, and there are no words importing an agreement, it can not be enforced as a covenant, but the only remedy is through a forfeiture of the estate." Quoting from Selden, J., in Palmer v. Fort Plain and Cooperstown Plank-Road Company (1 Keenan, 389).

In Wilson et ux. v. Wilson (86 Ind., 472) a deed was executed by father to son upon the consideration of a certain covenant contained in a separate instrument executed by the son. Upon these facts it was held that the deed was upon condition, the court saying:

There was no other valuable consideration for the deed, and, unless the instrument can operate as a defeasance, it is difficult to see how, in respect to some, at least, of its terms, it could be enforced or be made effective in any way. It may be said that the covenants contained in the writing are personal covenants merely, but that can not

affect the conclusion that the deed was made on condition that they be faithfully kept and performed.

In Oliver Hayden et al. v. The Inhabitants of Stoughton (5 Pickering, 528) a devise of real estate to a town for the purpose of building a schoolhouse, "provided it is built within 100 rods of the place where the meetinghouse now stands," was held to be upon a condition subsequent.

Says Lyon, judge, in Horner v. Chicago, Milwaukee & St. Paul Railway Co. et al. (38 Wis., 165, 173):

Although there are technical words which, if used in a conveyance, unmistakably create a condition, yet the use thereof is not absolutely essential to that end, and a valid condition may be expressed without employing those words.

And again:

It is not essential to a valid condition that, in case of a breach thereof, a right of reentry be expressly reserved in the deed, or that it be expressed therein that the estate of the grantee shall terminate with a breach of the condition.

This was a case where the deed conveyed two parcels of land. After the description of the first parcel, and referring to it by the words "the aforesaid piece or parcel of land hereby conveyed to the party of the second part only for depot and other railroad purposes," and after description of the other parcel, which in terms is granted for a railway, the deed contains these words: "Both of said pieces or parcels being granted solely for said road purposes." The court, speaking with reference to these clauses, says:

The words "only" and "solely" are words of restriction or exclusion. As used in this deed their effect clearly is to prohibit the grantee from using the lands for any other than the specified purposes.

So it was said by Page, J., in Kilpatrick v. Mayor of Baltimore (48 Am. St. Repts., 509, 511):

Technical words are not absolutely essential to create a condition, nor on the other hand does their use necessarily raise one; such words may be controlled by the context of the instrument in which they are used, so that sometimes they work a limitaion and condition, and sometimes a covenant or a trust only.

In this case the deed was to the "mayor and city council of Baltimore and its successors," with habendum, "to have and to hold * * * unto the mayor," etc., "forever, as and for a street to be kept as a public highway.' And it was held not to have been made upon condition.

Lurton, circuit judge, now a justice of the Supreme Court of the United States, gave utterance to the principle in Board of Commissioners v. Young (59 Fed., 96, 104). The deed under consideration contained neither technical words importing a conditional estate, nor any clause of reentry. "Yet," says the distinguished jurist, "a condition subsequent may be so strongly and clearly implied from the whole tenor of the deed as to demand recognition, though not expressed in technical language.' The deed in that case, however, was ultimately held not to have been executed upon condition. In Stanley v. Colt (5 Wall., 119, 166) the court says:

It is true that the word proviso is an appropriate one to constitute a common-law condition in a deed or will, but this is not the fixed and invariable meaning attached to it by the law in these instruments. On the contrary, it gives way to the intent of the parties as gathered from an examination of the whole instrument and has frequently been thus explained and applied as expressing simply a covenant or limitation in trust.

Again, in Atlantic and Pacific Railroad v. Mingus (165 U. S., 413, 428), Mr. Justice Brown says:

It can not be supposed that Congress intended to vest a title in the railway company to this enormous grant of lands without contemplating that the Government might in some way reacquire it in case of a failure of the company to comply with the conditions of the grant. No express provision for a forfeiture was required to fix the rights of the Government. If an estate be granted upon a condition subsequent, no express words of forfeiture or reinvestiture of title are necessary to authorize the grantor to reenter in case of a breach of such conditions.

It is not unusual for the Crown or the Government to annex conditions subsequent to grants, and such grants are subject to forfeiture for failure to observe the conditions imposed, as private grants may be forfeited unless the breach is subsequently waived by act of the grantor. United States v. Arredondo (6 Pet., 691); United States v. Wiggins (14 Pet., 334); United States v. Repentigny (5 Wall., 211). Indeed, it is a thing quite common in some form attending grants in aid of railroads and other internal improvements.

Two authorities may now be noted which have discussed conditions, one of similar import and the other identical with these under consideration. The first is Nichols v. Southern Oregon Co. (135 Fed., 232), a case decided in this court. By act of March 3, 1869 (15 Stat., 340), a grant of lands was made to the State of Oregon in aid of the construction of a military wagon road, containing the following provision:

Provided further, That the grant of land hereby made shall be upon the condition that the lands shall be sold to any one person only in quantities not greater than one quarter section, and at a price not exceeding $2.50 per acre.

The defendant company succeeded to a portion of these lands, and the plaintiff sued to require it to convey to him a tract of 160 acres, after tendering the price thereof at the rate of $2.50 per acre, claiming that under the clause above quoted he was so entitled to purchase the land, and that the defendant was obligated to convey to him. Judge Bellinger, in disposing of the controversy, says:

The grant was not a law for the sale of the granted lands. It did not offer them for sale. That was left to the State, subject to restrictions as to the price at which they should be sold and the quantity that should be sold to any one person. These restrictions were mere incidents of the grant, mere regulations that the State was required to observe in selling the granted lands, at such time after they were earned as the State should conclude to sell them. The object to be accomplished in nowise depended upon them. Whatever rights existed in respect to these restrictions belonged to the United States. No interest was created in the complainant. He is not a beneficiary in the grant, and he has no standing to complain that the State has violated its conditions in the manner in which it has disposed of the granted lands. That is a matter that can only be taken advantage of by the United States. Furthermore, above 30 years ago Congress authorized patents to issue to the State or to any corporation or corporations to which it had transferred its interest, and patents have been issued to the State's grantees in pursuance of that law. It is not necessary to consider whether this act was a waiver by Congress of the conditions s bsequent in the grant.

Three things seem to have been decided, namely, that the restrictions imposed by the clause quoted were mere incidents or regulations that the State was required to obey; that whatever rights vested in respect to such restrictions belonged to the United States; and that a third or outside party was not a beneficiary to the grant; and, incidentally, the conditions are spoken of as "conditions subsequent."

The other case is Warrior River Coal & Land Co. v. Alabama State Land Co. (154 Ala., 135). The action was in ejectment, and involved

a tract of land included in a grant by Congress to the State to aid in the construction of railroads. The grant, which was made by act of June 3, 1856 (11 St., 17), seems to have lapsed in part, and a revival was accorded by act of April 10, 1869 (16 St., 45), containing a clause identical with the one here under consideration amendatory of the act of July 25, 1866. Speaking with reference to the clause, the court

says:

The legal title to the granted lands having vested in the State, and the beneficial interest in the railroad company having become individualized as to the land and the companies, respectively, the land here in controversy included, by the performance of all conditions precedent erected by the national grant, the limitation quoted from the act was, at most, a condition subsequent, a violation of which rendered the estate in the particular instance amenable to forfeiture by the appropriate action of the granting government, and by that only.

There is here the intimation that the clause might create a condition subsequent, but that if it did, the court was of the view that the forfeiture could be insisted upon only by the General Government. Without for the present concluding whether the provisions in question constitute a condition subsequent, the logical order requires that we first determine the contentions of cross-complainants and interveners.

The position of cross-complainar ts is that these provisions-the settlers' clause-devolved upon the grantee and executory trust to be administered by it, and that when any citizen, qualified to take and hold lands in his own right, became an actual settler upon the land selected by him, he then became qualified as a cestui que trust, to whom the grantee was bound to sell at the rate of $2.50 per acre, and in due time to convey, and that equity will interpose its jurisdiction to enforce the trust. Under this theory, it is further asserted that it makes no difference that a cestui que trust was not in being and qualified as such at the time of the grant, but that the act has in contemplation any such qualified person, who may at any time make settlement and, with a tender of the purchase price, demand a deed. A word as to the signification of the term "covenant" before proceeding to the inquiry thus suggested. It is "an agreement between two or more persons, entered into by deed, whereby one of the parties promises the performance or nonperformance of certain acts, or that a given state of things does or shall, or does not or shall not, exist." (Bouvier's Law Dictionary.)

In common parlance, however, the term is applied to any agreement whether under seal or not. (11 Cyc., 1043.)

No specific or technical words are necessary to the creation of a covenant, nor is any particular or set form of expression, it being sufficient if, from the whole agreement, there appears upon any part of it an obligation or undertaking to do or not to do a particular thing or things. As stated in Sheppard's Touchstone, 161:

And there needs not in this case formal and orderly words, as covenant, promise, and the like, to make a covenant on which to ground an action of covenant; for a covenant may be had by any other words: and upon any part of an agreement in writing, in what words soever it be set down, for anything to be or not to be done, the party to or with whom the promise or agreement is made may have this action upon the breach of the agreement.

The case of Hale v. Finch (104 U. S., 261) is instructive upon the subject. The controversy was relative to the proper construction of