Bell, C. J.
If this was the case of a covenant, the liability of the defendant to maintain the fence in question might depend upon the fact, which is not shown in the case, whether there was or not a fence around the land conveyed, at the time of the conveyance, according to the distinction taken in Spencer’s Case, 5 Co. 16, where it was resolved, that if the covenant concerns a thing which was not- in esse at the time of the demise made, but to be done upon the land afterward (for instance, to build a new wall on some part of the premises demised), the covenantor, his executors and administrators, would be bound, but not the assignee if he was not named, for the law would not annex a covenant to a thing which had no being; but if the lessee had covenanted for himself and his assigns, then forasmuch as it was to be done upon the land demised, it should bind the assignee; and the reason given is, that although the covenant did extend to a thing to he newly made, yet as it was to be made upon the thing demised,' and the assignee was to take the benefit of it, therefore he should be bound by express words.
This distinction has been always adhered to. Platt on Cov. 471; Taylor L. & T. 301; Wms. L. & T. 290; Lamelti v. Anderson, 6 Cow. 307; Thompson v. Roe, 8 Cow. 266; Allen v. Culver, 3 Denio 284; Tollman v. Coffin, 4 Coms. 136; Lampson v. Easterly, 9 B. & C. 505; 6 Bing. 644; Doughty v. Bowman, 11 Q. B. 444; Congleton v. Pattison, 10 East 138; 1 Wash. R. P. 330.
Conditions subsequent are not favored in law, says Ch. Kent (4 Com. 129), and are construed strictly, because they tend to destroy estates; and a vigorous exaction of them is a species of summum jus, and in many cases hardly reconcilable with conscience. If then a condition be personal, as that the lessee shall not sell without leave, the executors of the lessee not being named, may sell without incurring a breach. Dyer 65; Moor 11.
It is a general rule (says the Touchstone 133), that such conditions annexed to estates as go in defeasance, and tend to the destruction of estates, being odious in the law, are taken (that is construed or expounded) strictly, and shall not be extended beyond their words, unless it be in some special cases; and, therefore, if a lease be made on condition that if such a thing be not done, the lessor (without any words of heirs, executors, &c.) shall reenter and avoid it, in this case regularly the heir, executor, &c., shall not take advantage of this condition. So if one make a lease for years of a house on condition that if the lessor shall be minded to dwell in the house, and shall give notice to the lessee, that he shall depart, in this case if the lessor die, his heir, executor, &c., shall not have the like advantage and power as the lessor himself, for the condition shall not be extended to them, and hence it is, that if a lease for years be made on condition that the lessee shall not alien without the license of the lessor, in this case the [478]*478restraint shall continue only during the lives of the lessor and lessee, and no longer.
The same doctrine will be found in Litt. Ten., sec. 337; Willard R. E. 105; Wash. R. P. 447; Nicoll v. Railroad, 2 Kern. 131; 1 Smith L. C. 99; McQueston v. Morgan, 34 N. H. 400; Chapin v. School District, 35 N. H. 445; Ludlow v. Railroad, 12 Barb. 440.
In the case of Merrifield v. Cobleigh, 4 Cush. 184, the owner of land made a deed of a part, with the condition, that whenever the grantee, his heirs, or assigns, shall neglect or refuse to support the fence, the deed shall be void. Shaw, C. J., says, such a condition, when relied on to work a forfeiture, is to be construed with great strictness. The demandant shall have his exact legal right, but no more. Bradstreet v. Clark, 21 Pick. 389. And the action failed for want of a request, without which there would be neither a neglect or a refusal.
Upon these principles, it is held that where a condition applies in terms to the grantee, or lessee, without mention of heirs, executors, or assigns, the condition can not be broken after the death of the grantee, or lessee. If heirs and executors are named, but assignees are not, it will not be broken by any act of an assignee.
Thus in Dyer 65 (Anon.), a question was asked upon the words of a lease, to wit, “ and it shall not be lawful for the lessee to give, sell, or grant his estate and term to any person whatever without license of the lessor, under penalty of the forfeiture of said term.” The lessor and lessee died, and the executors sold the term without license of the heir. It was held that this was not a forfeiture, because the restriction was only during the lives of the lessor and lessee. Cited Com. Dig., Condition E.
In Cobb v. Prior, 2 Leon. 35, it is held, that if a man devises land to his wife, during the minority of his son, upon condition that she shall not do waste, and dies, and his wife marries again and dies, and after the husband commits waste, the condition is not broken, because a condition to avoid an estate shall be taken strictly. Latch 20, and 2 Leon. 48, S. C. and Vin. Ab., Condition M, a 8.
In the year-book 27 H. 8, 14, 15 (Bro. Ab., 151), the case was, that the prior of St. Johns leased for years, provided that if said prior, or any of his friars should wish to inhabit the premises and' give a year’s notice, the lessee should remove. The prior died, and his successor gave the year’s notice; and it was held'that as the successor was not named, the condition did not extend to him; and the judges held, that if a lease is made upon condition, &c., that the lessor may enter, and do not speak of his heirs or successors, by the death of the lessor the condition is extinct.
In Dumpor’s Case, 4 Co. 119, 1 Smith L. C. 15; S. C., Cro. Eliz. 815, the same strictness is found, where it was held that a condition in a lease for years, that the lessee or his assigns should not alienate without license of the lessor, and license was given to make one assignment, the condition would not bind the assignee.
So it was held by two judges in the case in Dyer 152, cited in Dumpor’s Case, where a proviso in a lease was, that the lessee and his executors should not alien to any person without license of the [479]*479lessor, but only to one of the sons of the lessee, and. the lessee died, and his executors assigned it over to one of his sons, that the son might alien to whom he pleased without license.
In Whitchcot v. Fox, Cro. Jac. 898, there was a lease for years, with a condition that the lessee should not alien but to his wife during her life, and the residue to his children, or one of his youngest brethren, upon pain of forfeiture; the lessee assigned the term to his brother; it was held the baron might not alien to his wife, therefore in that point the condition is void, and thereby liberty is given to alien to his brother, and when he has aliened to him, the condition is dispensed with, and he may alien to whom he pleases.
In Lynde v. Hough, 27 Barb. 415, it was held, that the extent and meaning of a condition, and the fact of a breach, are questions strictissimi juris, and a plaintiff to defeat an estate of his own creation, must bring the defendant clearly within its letter.
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Bell, C. J.
If this was the case of a covenant, the liability of the defendant to maintain the fence in question might depend upon the fact, which is not shown in the case, whether there was or not a fence around the land conveyed, at the time of the conveyance, according to the distinction taken in Spencer’s Case, 5 Co. 16, where it was resolved, that if the covenant concerns a thing which was not- in esse at the time of the demise made, but to be done upon the land afterward (for instance, to build a new wall on some part of the premises demised), the covenantor, his executors and administrators, would be bound, but not the assignee if he was not named, for the law would not annex a covenant to a thing which had no being; but if the lessee had covenanted for himself and his assigns, then forasmuch as it was to be done upon the land demised, it should bind the assignee; and the reason given is, that although the covenant did extend to a thing to he newly made, yet as it was to be made upon the thing demised,' and the assignee was to take the benefit of it, therefore he should be bound by express words.
This distinction has been always adhered to. Platt on Cov. 471; Taylor L. & T. 301; Wms. L. & T. 290; Lamelti v. Anderson, 6 Cow. 307; Thompson v. Roe, 8 Cow. 266; Allen v. Culver, 3 Denio 284; Tollman v. Coffin, 4 Coms. 136; Lampson v. Easterly, 9 B. & C. 505; 6 Bing. 644; Doughty v. Bowman, 11 Q. B. 444; Congleton v. Pattison, 10 East 138; 1 Wash. R. P. 330.
Conditions subsequent are not favored in law, says Ch. Kent (4 Com. 129), and are construed strictly, because they tend to destroy estates; and a vigorous exaction of them is a species of summum jus, and in many cases hardly reconcilable with conscience. If then a condition be personal, as that the lessee shall not sell without leave, the executors of the lessee not being named, may sell without incurring a breach. Dyer 65; Moor 11.
It is a general rule (says the Touchstone 133), that such conditions annexed to estates as go in defeasance, and tend to the destruction of estates, being odious in the law, are taken (that is construed or expounded) strictly, and shall not be extended beyond their words, unless it be in some special cases; and, therefore, if a lease be made on condition that if such a thing be not done, the lessor (without any words of heirs, executors, &c.) shall reenter and avoid it, in this case regularly the heir, executor, &c., shall not take advantage of this condition. So if one make a lease for years of a house on condition that if the lessor shall be minded to dwell in the house, and shall give notice to the lessee, that he shall depart, in this case if the lessor die, his heir, executor, &c., shall not have the like advantage and power as the lessor himself, for the condition shall not be extended to them, and hence it is, that if a lease for years be made on condition that the lessee shall not alien without the license of the lessor, in this case the [478]*478restraint shall continue only during the lives of the lessor and lessee, and no longer.
The same doctrine will be found in Litt. Ten., sec. 337; Willard R. E. 105; Wash. R. P. 447; Nicoll v. Railroad, 2 Kern. 131; 1 Smith L. C. 99; McQueston v. Morgan, 34 N. H. 400; Chapin v. School District, 35 N. H. 445; Ludlow v. Railroad, 12 Barb. 440.
In the case of Merrifield v. Cobleigh, 4 Cush. 184, the owner of land made a deed of a part, with the condition, that whenever the grantee, his heirs, or assigns, shall neglect or refuse to support the fence, the deed shall be void. Shaw, C. J., says, such a condition, when relied on to work a forfeiture, is to be construed with great strictness. The demandant shall have his exact legal right, but no more. Bradstreet v. Clark, 21 Pick. 389. And the action failed for want of a request, without which there would be neither a neglect or a refusal.
Upon these principles, it is held that where a condition applies in terms to the grantee, or lessee, without mention of heirs, executors, or assigns, the condition can not be broken after the death of the grantee, or lessee. If heirs and executors are named, but assignees are not, it will not be broken by any act of an assignee.
Thus in Dyer 65 (Anon.), a question was asked upon the words of a lease, to wit, “ and it shall not be lawful for the lessee to give, sell, or grant his estate and term to any person whatever without license of the lessor, under penalty of the forfeiture of said term.” The lessor and lessee died, and the executors sold the term without license of the heir. It was held that this was not a forfeiture, because the restriction was only during the lives of the lessor and lessee. Cited Com. Dig., Condition E.
In Cobb v. Prior, 2 Leon. 35, it is held, that if a man devises land to his wife, during the minority of his son, upon condition that she shall not do waste, and dies, and his wife marries again and dies, and after the husband commits waste, the condition is not broken, because a condition to avoid an estate shall be taken strictly. Latch 20, and 2 Leon. 48, S. C. and Vin. Ab., Condition M, a 8.
In the year-book 27 H. 8, 14, 15 (Bro. Ab., 151), the case was, that the prior of St. Johns leased for years, provided that if said prior, or any of his friars should wish to inhabit the premises and' give a year’s notice, the lessee should remove. The prior died, and his successor gave the year’s notice; and it was held'that as the successor was not named, the condition did not extend to him; and the judges held, that if a lease is made upon condition, &c., that the lessor may enter, and do not speak of his heirs or successors, by the death of the lessor the condition is extinct.
In Dumpor’s Case, 4 Co. 119, 1 Smith L. C. 15; S. C., Cro. Eliz. 815, the same strictness is found, where it was held that a condition in a lease for years, that the lessee or his assigns should not alienate without license of the lessor, and license was given to make one assignment, the condition would not bind the assignee.
So it was held by two judges in the case in Dyer 152, cited in Dumpor’s Case, where a proviso in a lease was, that the lessee and his executors should not alien to any person without license of the [479]*479lessor, but only to one of the sons of the lessee, and. the lessee died, and his executors assigned it over to one of his sons, that the son might alien to whom he pleased without license.
In Whitchcot v. Fox, Cro. Jac. 898, there was a lease for years, with a condition that the lessee should not alien but to his wife during her life, and the residue to his children, or one of his youngest brethren, upon pain of forfeiture; the lessee assigned the term to his brother; it was held the baron might not alien to his wife, therefore in that point the condition is void, and thereby liberty is given to alien to his brother, and when he has aliened to him, the condition is dispensed with, and he may alien to whom he pleases.
In Lynde v. Hough, 27 Barb. 415, it was held, that the extent and meaning of a condition, and the fact of a breach, are questions strictissimi juris, and a plaintiff to defeat an estate of his own creation, must bring the defendant clearly within its letter. And where it was shown that a third person was in the occupation of part of the premises, but it did not appear whether he was in under the lessee himself, or under an assignee of the lease, it was held by the court, that if he was in under an assignee, it was no breach of a condition that the same or any part thereof should not be let or underlet without the written consent of the landlord, under penalty of forfeiture; that the covenant was both collateral, and merely personal. It is the engagement of the lessee for himself alone, not naming his assigns, whether actual, or legal; and if he had a right to assign the whole term, his assignee takes the estate without the condition, as not being bound by it; and the words, let and under-let do not mean an assignment of the whole term.
In the case before us the condition is in terms confined to the grantee, “ if the said George Simpson shall neglect,” &c., without mention of heirs, executors, administrators, or assigns, and it comes therefore fully within the principle of the cases referred to. The condition is personal, and bound George Simpson alone, and no breach is shown during his life.
An argument is drawn from the word forever, that the charge of maintaining the fence was intended to bé a permanent condition. We think it is more than neutralized by the terms at his own expense, which limits it to the grantee in person.
Judgment is to be rendered for the defendant, unless one of the parties shall elect a trial by jury.