Episcopal City Mission v. Appleton

117 Mass. 326, 1875 Mass. LEXIS 229

Opinion

Gray, C. J.

Although the words “ upon condition,” in a conveyance of real estate, are apt words to create a condition, any breach of which will forfeit the estate, yet they are not to be allowed that effect when the intention of the grantor, as manifested by the whole deed, is otherwise. Sohier v. Trinity Church, 109 Mass. 1, 19, and cases cited. Attorney General v. Wax Chandlers’ Co. L. R. 6 H. L. 1. We are of opinion that such an intention does appear on the face of the deed from William Appleton to the Episcopal City Mission.

The purpose of the conditional paragraph is to define and regulate the use of the estate by the grantee, not by the grantor or his heirs. There is no reason for giving to the words at the beginning of this paragraph, “ upon and subject to the condition,” a more technical construction than to the like words introducing the second clause, “ and also upon the further condition.” But both clauses cannot be construed as conditions; because, upon that construction, a breach of the first would, upon entry by the grantor or his heirs, forfeit the whole estate, and leave nothing in the grantee to which the last part of the second clause could apply. The second clause can therefore have effect only by way of restriction, and the first clause must have a like interpretation and effect.

It follows that upon the facts found by the justice of this court before whom the case was heard, the petition should be

Cfranted.