The Chief Justice
delivered the opinion of the court.
The plaintiff claims title to the premises i"n question as the devisee of Isaac Southard, deceased. The defendants claim, by virtue of a deed executed by the said Isaac Southard, in his lifetime, to “ The Elizabethtown and Somerville Railroad Company,” all the property and rights of the said company having been vested, by legislative sanction, in the defendants. The title was conveyed by Southard to the railroad company, subject to certain [17] conditions. These conditions, it is insisted, have been broken, and the defendant’s title to the land thereby forfeited. To enforce this forfeiture is the object of the present action.
Two questions are presented for consideration, viz., first, was there a forfeiture by a breach of the conditions of the grant? second, is the plaintiff in a position to enforce the forfeiture? t
First. The condition of the grant, upon the breach of which the forfeiture is claimed to have been incurred, is as follows: u If at any time forever hereafter the said company shall cease to use and occupy the above-described lands and premises for the sole and only purpose of a depot, or other place for the reception and discharge of passengers, produce, goods, wares, and merchandise, or shall establish, make, have, use, enjoy, or possess any other depot or other place for the above-described purposes within one mile of the said lots and premises hereby granted and conveyed, or shall at any time forever hereafter build or erect, or cause or permit to be builded or erected, by any other person or persons, upon said premises, any public house, inn, or tavern, ware, store, or other house or houses, other than for storing of produce, grain, goods, wares, and merchandise, or any other house of any kind or use soever, other than may be necessary to and for the said company, or parties of the second part, for their own and sole use and aeoommodation as aforesaid, that then and in that case the right and title hereby conveyed shall cease, and the said parties of the second part shall forfeit all the right, title, and interest conveyed.”
The design of this condition was obviously to benefit the other properly of the grantor in the vicinity of tile premises conveyed.
Three objects are apparent upon its face First, to secure the location of the company’s depot, or building for the reception and discharge of passengers and merchandise, upon the premises conveyed, and to centre the entire [18] business of the company in Somerville and its vicinity at that point; second, to restrict the use of the premises solely to the accommodation of the appropriate business of the company, to the exclusion of áll othérs; third, to prevent the erection of any public house, inn, or tavern upon the premises.
It is not insisted, nor can it be, that the condition is violated by a transfer of the rights and property of the grantees, under legislative sanction, to another corporation. But it is insisted that the condition is violated, first by extending the railroad to a point beyond Somerville; whereas the design and effect of the condition is to make that point the terminus of the road. There is no such limitation expressed in the grant. No such restriction can fairly or necessarily be inferred from its terms. If such was the intention of the parties, it was the most important provision in the whole condition of the grant, and it is remarkable that no direct allusion should he made to it. It is reasonable to. expect that so important a restriction would have been expressed in clear and unequivocal terms, and not left to conjecture or inference. It is said that, by extending the road, the company use the land conveyed for the purposes of transit; whereas, by the terms of the grant, they are restricted to use it for the sole and only purpose of a depot, &c. If the land conveyed had been oif the main route of the road, there might be some semblanee of force in the position. But, by the terms of the grant,' it appears that the land conveyed lies upon each side of and adjoining the centre line of the main track of the road; that the road extended entirely across the tract conveyed to a public highway upon tho west side of it, and that the company were authorized by the grantor to construct a turnout upon his land west of the highway.- The railroad, it appears by the evidence, had been constructed prior to the date of the grant. The company, then, are authorized by the terms of the grant to construct their road, and to run their cars entirely [19] ■across the tract in question; in other words, to use It for the purpose of transit. And having crossed the premises with the main line of their road, and having the undoubted privilege of crossing the land with their cars, •there is nothing in the grant, expressed or implied, that limits their progress or restricts the extension of their road to any particular point. It is said that, at the time of the grant the company had no authority to extend their road beyond Somerville, that by their charter the terminus was fixed at that point, and that this fact must have been within the contemplation of the parties. But it must also be presumed to have been within the contemplation of the parties that the legislature might at anytime alter the terminus by an extension of the road1; that It was the undoubted right of the company to apply for such extension, and that the exercise of that right, and the use by the company of their land for that purpose, could only be restrained or qualified by express and unequivocal terms. I am clear that such restriction or limitation is not within the terms of the deed and the contemplation of the parties.
It is further insisted that the estate is forfeited by permitting a house of entertainment to be kept upon the premises, and by discharging merchandise at other points than upon the premises; The condition of the deed is, that if the company shall establish or use any other depot or place for the reception and discharge of passengers and merchandise, or shall build or erect, or permit to be built or erected, any public house, inn or tavern upon the premises, the grantees shall forfeit all the right, title and interest conveyed.”
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The Chief Justice
delivered the opinion of the court.
The plaintiff claims title to the premises i"n question as the devisee of Isaac Southard, deceased. The defendants claim, by virtue of a deed executed by the said Isaac Southard, in his lifetime, to “ The Elizabethtown and Somerville Railroad Company,” all the property and rights of the said company having been vested, by legislative sanction, in the defendants. The title was conveyed by Southard to the railroad company, subject to certain [17] conditions. These conditions, it is insisted, have been broken, and the defendant’s title to the land thereby forfeited. To enforce this forfeiture is the object of the present action.
Two questions are presented for consideration, viz., first, was there a forfeiture by a breach of the conditions of the grant? second, is the plaintiff in a position to enforce the forfeiture? t
First. The condition of the grant, upon the breach of which the forfeiture is claimed to have been incurred, is as follows: u If at any time forever hereafter the said company shall cease to use and occupy the above-described lands and premises for the sole and only purpose of a depot, or other place for the reception and discharge of passengers, produce, goods, wares, and merchandise, or shall establish, make, have, use, enjoy, or possess any other depot or other place for the above-described purposes within one mile of the said lots and premises hereby granted and conveyed, or shall at any time forever hereafter build or erect, or cause or permit to be builded or erected, by any other person or persons, upon said premises, any public house, inn, or tavern, ware, store, or other house or houses, other than for storing of produce, grain, goods, wares, and merchandise, or any other house of any kind or use soever, other than may be necessary to and for the said company, or parties of the second part, for their own and sole use and aeoommodation as aforesaid, that then and in that case the right and title hereby conveyed shall cease, and the said parties of the second part shall forfeit all the right, title, and interest conveyed.”
The design of this condition was obviously to benefit the other properly of the grantor in the vicinity of tile premises conveyed.
Three objects are apparent upon its face First, to secure the location of the company’s depot, or building for the reception and discharge of passengers and merchandise, upon the premises conveyed, and to centre the entire [18] business of the company in Somerville and its vicinity at that point; second, to restrict the use of the premises solely to the accommodation of the appropriate business of the company, to the exclusion of áll othérs; third, to prevent the erection of any public house, inn, or tavern upon the premises.
It is not insisted, nor can it be, that the condition is violated by a transfer of the rights and property of the grantees, under legislative sanction, to another corporation. But it is insisted that the condition is violated, first by extending the railroad to a point beyond Somerville; whereas the design and effect of the condition is to make that point the terminus of the road. There is no such limitation expressed in the grant. No such restriction can fairly or necessarily be inferred from its terms. If such was the intention of the parties, it was the most important provision in the whole condition of the grant, and it is remarkable that no direct allusion should he made to it. It is reasonable to. expect that so important a restriction would have been expressed in clear and unequivocal terms, and not left to conjecture or inference. It is said that, by extending the road, the company use the land conveyed for the purposes of transit; whereas, by the terms of the grant, they are restricted to use it for the sole and only purpose of a depot, &c. If the land conveyed had been oif the main route of the road, there might be some semblanee of force in the position. But, by the terms of the grant,' it appears that the land conveyed lies upon each side of and adjoining the centre line of the main track of the road; that the road extended entirely across the tract conveyed to a public highway upon tho west side of it, and that the company were authorized by the grantor to construct a turnout upon his land west of the highway.- The railroad, it appears by the evidence, had been constructed prior to the date of the grant. The company, then, are authorized by the terms of the grant to construct their road, and to run their cars entirely [19] ■across the tract in question; in other words, to use It for the purpose of transit. And having crossed the premises with the main line of their road, and having the undoubted privilege of crossing the land with their cars, •there is nothing in the grant, expressed or implied, that limits their progress or restricts the extension of their road to any particular point. It is said that, at the time of the grant the company had no authority to extend their road beyond Somerville, that by their charter the terminus was fixed at that point, and that this fact must have been within the contemplation of the parties. But it must also be presumed to have been within the contemplation of the parties that the legislature might at anytime alter the terminus by an extension of the road1; that It was the undoubted right of the company to apply for such extension, and that the exercise of that right, and the use by the company of their land for that purpose, could only be restrained or qualified by express and unequivocal terms. I am clear that such restriction or limitation is not within the terms of the deed and the contemplation of the parties.
It is further insisted that the estate is forfeited by permitting a house of entertainment to be kept upon the premises, and by discharging merchandise at other points than upon the premises; The condition of the deed is, that if the company shall establish or use any other depot or place for the reception and discharge of passengers and merchandise, or shall build or erect, or permit to be built or erected, any public house, inn or tavern upon the premises, the grantees shall forfeit all the right, title and interest conveyed.”
The evidence in support of these grounds of forfeiture is, that the person who had charge of the depot had, by the permission or connivance of the company, kept an oyster stand, had sold liquor to passengers and others, and, in the course of five years, had lodged about twelve or fourteen persons. There -was no proof that the company had erected any building for the purpose, or that [20] any inn or tavern Had in fact- been kept upon the premises. It was further in evidence, that merchants in the village, upon the line of the road, had been permitted, for their greater accommodation, to unload their merchandise and freight upon tljeir own premises, without any benefit or advantage to the company. Aets like these surely do not come within the letter or the spirit of the condition. Giving to the instrument the broadest and most liberal construction in favor of the grantor, admitting the legality of the restriction in its widest extent, the forfeiture of the estate can never, by any sound rule of construction, be made to depend upon such grounds.' It could never have been the design of the parties themselves to restrict the company from accommodating their customers, by permitting them to load or unload their freight at their own doors upon the line of the road, or to prevent an employ© of the company from selling refreshments at the station-house. These acts do not constitute . either the erection of a public house or the establishment of a depot for the reception and discharge of freight and passengers. That such acts were not within the contemplation of the grantor, is obvious from the fact that for years, and during the greater portion of the period while these alleged breaches of covenant were being committed, he was a director of the company. He resided in the immediate vicinity of the depot, and the acts were done with his knowledge and under his immediate observation.
It is no less the dictate of reason and justice, than of sound law, that courts should require the violation of a condition which involves a forfeiture to be clearly established. Conditions, when they tend to defeat estates, are stricti juris, and to be construed strictly. 1 Shep. Touch. 133, § 8 ; Roll. Rep. 70.
Giving to the terms of the deed a strict construction, there is no evidence in the cause to establish a forfeiture or to warrant a verdict for the plaintiff. The jury should [21] have been so instructed. The verdict’ is against-law and against evidence.
If, however, the evidence had • clearly established a breach of the condition and a consequent forfeiture of the estafe, the plaintiff could , not-have availed herself of the forfeiture. She claims, not as heir, but as devisee of the grantor. She is a privy in estate, and not a privy in blood. It is a rule of the common law, that none may take advantage of a condition in deed but parties and privies in right and representation, as the heirs of natural persons and the successors of politic persons; and that neither privies nor assignees in law, as lords by escheat; nor in deeds, as grantees of reversions; nor privies in estate, as he to whom the remainder is limited, shall take benefit of entry or re-entry by force of a condition. Shep. Touch. 149 ; Co. Lit. 214, a; Lit., § 347 ; Doct. and Student 161, ch. 20; Perkins, § 830; 4 Kent 127 ; 2 Cruise Dig., ch. 2, § 49.
The act of March 14th, 1851, authorizing the transfer of estafes in expectancy, has altered the rule of the common law, but it clearly cannot affect this case. That act authorizes the assignment of a right of entry for condition broken, or other contingent interest by will or deed executed after the passing of the act. Isaac Southard, the devisor under whom the lessor of the plaintiff claims, died in September, 1850, before the passage of the law. His will was executed on the 28th of September, 1849.
Nor is it perceived that the plaintiff’s title can be in anywise aided by the supplement to the act concerning wills, approved 12th March, 1851. That aet, it is true, by its terms, applies to all wills of persons dying after the 4th of July, 1850, and therefore includes the will under which the lessor of the plaintiff claims. But the design of that statute was to prescribe the requisites for the due execution of wills, not to enlarge the subject of devises, or to alter the mode of their operation. The legislature could not have intended, by that act, to make contingent [22] estates devisable, since, two days after, they passed an act for that express purpose. The true construction of the phrase “all rights of any kind,” in the first section of the supplement to the act concerning wills, (Nixon’s Dig.) 877, must be construed to mean “all rights of any kind which by law are devisable.”
But admitting, for the sake of the argument, that the act does operate to make all contingent estates devisable, it cannot aid the plaintiff’s case. The grantor, Isaac Southard, died, and his will took effect in September, 1850. At that time the contingent interest of the testator in the lands in question depending upon the breach of the condition was not devisable. It did not pass by the will. Immediately upon his death, it descended to and vested in his heirs-at-law. A subsequent act of the legislature could not divest the estate of the heir or vest it in the devisee. The act of 1851 concerning wills was made retrospective, in order to sustain the validity of any will executed under the act of 1850, which was repealed by the act of 1851. But it never could have been designed to enable a previously executed will to pass an estate which it could not pass at the death of the testator. If it was so designed, the act in that respect is clearly inoperative and unconstitutional. This consideration affords the strongest ground for limiting the operation of the act strictly to estates then devisable by law. There is no ground upon which the right of the lessor of the plaintiff to the premises can be sustained.
The verdict must be set aside, and a new trial granted.
Cited in Cornelius v. Ivins, 2 Dutch. 385; McKelway v. Seymour, 5 Dutch. 328, 332; New Jersey Midland Railway Co. v. Van Syckle, 8 Vr. 505; Schulenberg v. Harriman, 21 Wall. 63.