Mr. Justice WOODBURY
delivered the opinion of the courts
This is a writ of error, founded on an exception taken to thfe ruling of the Circuit Court, in the Maine District, as to the construction of a deed.
The action below was brought to recover lots No. 11 in the 4th range, and No. 11 in the 5th range, in the town of Lee, in said District; and the construction objected to was, .that a mortgage, executed June 5th, 1827, by Samuel Mallett to Williams College, dnder which institution the plaintiff in error claims, did not comprehend or convey the demanded premises.
In order to judge of the correctness of this construction, and. its bearing on the rights of the parties, it will be necessary to examine the circumstances under which the deed was made, as well as its phraseology.
The demanded premises were part of township No. 3, north of • Bingham’s Penobscot purchase, conveyed by the Commonwealth of Massachusetts to Williams College, the 15th of February, 1820, ■ under certain resolves, passed by the legislature, February 19th, 1805, and January 27th, 1820. The only conditions in those resolves material to what is now under consideration were, that “ the
grantees, or their assigns,” shall give security that they, “ within three years, will place on said township thirty families, as settlors, of the description-named in the act for promoting the sale and. settlement of the public lands in the District of Maine; also reserving in said.township the usual public lots.” By the act referred to, for “ prompting the sale and settlement of the public lands in the District of Maine,” it was provided (in section sixth), “that in every township to be laid out pursuant to this act, the commissioners shall set apart, fifty lots, , of one hundred acres each, of average quality and value, no two lots of which shall be contiguous to each other, which shall be granted and conveyed, to the first fifty settlers in said township, upon the payment of five dollars for each lot”. (Statute, Februaiy 15th, 1816, p. 172). The fifth section authorized the commissioners to take a commutation from grantees of any settling duties they were held tc perform.
The resolve, granting this township, reduced foe number of settlers from fifty to thirty ; and, instead of reserving the right to foe commissioners to execute such deeds, provided, that foe grantees might give security to foe State to do it, and perform the other tluties, as to the settlers, under the before-mentioned act. Accordingly, Williams College having conveyed this township to Nathaniel Ingersoll,- on the 15th of February, 1820, and not having, given the before-mentioned security themselves, procured him to do it, and he, -.by. bond, dated March 17th, 1820, stipulated with foe State, among other things, to place, within three years, “ on said township' thirty families, as settlers, of the description named in the act for promoting' the sale and settlement of the public lands in foe District of Maine.”
Matters-being thus situated, Ingersoll, on the 5th of June, 1827, conveyed to -Samuel T. Mallett a portion of said township, under-time following description, reservations, and. conditions : —
“ Six thousand acres of land, in common and undivided, in the township of land lying in the county of Penobscot, as the samé township was surveyed by Alexander
Greenwood¿
Esq., in the year one thousand eight 'hundred and eleven, foe same being township numbered three in the second range of townships north of foe Bingham Penobscot purchase, and numbered four by said Greenwood, being the same conveyed to me by -foe President and Trustees of Williams College, ms described in their deed, dated February; fifteenth, one-thousand eight hundred and twenty, and this day delivered to me, reference thereto béing had ; excepting and reserving the lots marked as settlers’ lots on a plan of said town, made by John Webber, and excepting also the lot on which I have improved, which are not to be subjected to a draft; subject, however, to the condition that the said Mallett shall perform his part of the settling duties in proportion to the land conveyed, and also that from said six 'thousand acres' a part, of foe public lands reserved shall be
taken, in proportion as said six thousand acres bears to the whole township.”
On the same day, to secure the consideration for the purchase, and to pay the same to Williams College, in behalf of said Ingersoll, still indebted to the College, -Mallett conveyed the same premises, by mortgage, to the College, -under -the following description : — -
“. Six thousand acres of land, in common and undivided, in the township of land lying in the county of Penobscot, as the same township was surveyed by Alexander Greenwood, 1811, the same being township number three in the second range north of the Bingham Penobscot purchase, and numbered four by said Greeñwood, being the same this day conveyed to me by Nathaniel Ingersoll, as by his deed, reference thereto being had.”
What passed by this conveyance is the chief difficulty in the case. The question arises in this way.
The debt, secured by that mortgage, not being paid, the College instituted a suit to foreclose the same, in the year 1832, and recovered judgment June'20th, 1839. In the meantime, namely, May 11th, 1835, it transferred the rights under the mortgage to John Webber, who, in June of the same year, conveyed a moiety of them to Foxcroft, the plaintiff in error.
. Webber and Foxcroft then, in July, 1836, petitioned the Super rior Court of Maine for a partition of what , they held in common with others ; and, after various proceedings, these lots,’No. 11.in the 4th, and No. 11 in tire 5th range, were set off to them in severalty ; and on the 4th of November, 1836, Webber released all his rights in them tq Foxcroft. This, it is contended, vested the title in him, derived under the mortgage; and it might have done so, in one view of the case, had nothing else occurred to prevent or defeat it. But Samuel Mallett, after the conveyance to him by Ingersoll, and the mortgage to the College, proceeded to put on the land various settlers, under the reservations and conditions in the deed to him ; and, at a meeting of the proprietors of the township, for the purpose of dividing the same, April 16th, 1828, No. 11 in-the 4th range, and No.11 in the 5th, were set off to Samuel Mallett, with other lots, making fourteen in all, and described as “ being lots which he has sold to settlers, as so much towards his share in said lands ” ; and on the 12th of August*, 1829, he -executed a deed of those lots to the demandant.
The case, then, stands thus. If the title to these lots passed under the, mortgage from Samuel Mallett to the College, without condition, except as security for the debt, the plaintiff in error is now possessed of them in severalty, and should retain them. But if the title to them did. not pass at all by that mortgage, on account of the exceptions or reservations, either in it or the prior deed, which are applicable to the premises ; or if it .passed on conditions which
have since vested these lots in I)avid Mallett, as settlers’ lots under the act to encourage the sale and settlement of lands in Maine, — then he, as settler and grantee of the. same, ought now of right to possess them. The general aspect of the whole case is, we think, strongly in favor of the right set up by the demandant.
On the construction made in his favor by the court below, he will recover only what the laws of the State intended such settlers as he should have; and which it was expressly provided they should have in the deed from Ingersoll to Samuel Mallett of the tract including these premises.
But should the opposite construction, contended for by the tenant, prevail, the College and its assignees will get back, under a mortgage to secure a part of the consideration,’ about one fourth of the township, free from any charge or deduction on account of settlers’ claims, when the College was originally entitled to it under the resolve only-as burdened With that charge, arid has paid nothing since to relieve the land, from it; and when the immediate grantee of the College conveyed it so burdened, and has done nothing since to remove the encumbrance. Again, it was a leading principle of public policy with the State, in order to increase its population and wealth, that settlers should be placed upon the land at an early day, and, as an inducement for them to come, should have lots for a very small consideration. The College took the original grant under stipulations to effect this, and were bound to effect it, to the number of thirty families.
Yet, on the construction set' up by the tena t, Ingersoll, under his bond, and his assigns, under the clauses in ti/Jr.deeds from him, would be- compelled to effect this so far as regards one fourth of the town, without allowing them any consideration therefor, or permitting them to make it a permanent charge on the land itself, as it originally- was and would naturally continue to be.
• But general considerations like these maybe counteracted-by express agreements and special provisions between the parties ; and it is necessary to ascertain next whether any such different and opposing agreements have been entered into here. When Ingersoll, being the second grantee and the obligor in the bond to the State for the performance of duties as to settlers, proceeded to convey about one fourth of the township to Samuel Mallett, it is clear that he preferred making'the performance of the duties to settlers in that portion of the township a charge on the land itself, by a condition in the grant, as had. formerly been, the usage, rather than taking another bond or other collateral security for it to himself. Such a course was also likely to be the safest," and was competent or legal, if he chose to adopt it. Accordingly, at the close of the description of the premises, in his deed to Mallett, he adds, “
excepting and reserving
the lots marked,” &c., which are not those now in dispute, arid concludes, —
u subject,
however,,
to the condition, that the said Maliett shall perform his part of the settling duties in proportion to the land conveyed, and also, that from said six thousand acres a part of the public lands reserved
shall be
taken, in proportion as said six thousand acres bears to the whole township.” There can be no doubt, that.this language, whether following or-preceding the description of the premises, was intended to constitute an integral part of the deed itself, and to limit the extent arid nature of the grant. A condition or reservation may be inserted in any part of a deed. Shepherd’s Touch.,
ch. 6 ; 5
D-. & E- 526 ; 1 Saund- 60, note.
■ Ñor is such a provision inconsistent with the general covenants, as has been contended by the plaintiff in error. They must be construed as relating only to the subject-rnatter, looking to the-whole deed, and the obvious intent of the parties in the whole.
What, then, is the effect of these particular clauses ? Clearly to except- out of and reserve from passing at all, by the grant, so much of the six thousand acres as “ the lots marked as settlers’ lots on a plan of said town by-J. Webber,” and also the Jot on which Ingersoll had improved. ' These were not to be considered as held in common or “ subjected to a draft,”- but were entirely excluded from any future division of the six thousand acres. These, however, are not now in controversy.■
What more do these clauses provide ? The whole land, which did pass under the grant, was to be held
11
subject ”
u to'the con-, dition, that the said Maliett shall perform his part of the settling
duties,” or,, in other words, put on his proportionate number of families, and convey to the head of each a hundred-acre lot for only live dollars, and also allow a proportionate share of the public lands reserved in said township to
“ be taken
” from this six thousand acres. This is the important provision bearing on the present case. For aught which appears, the’ settlers had not then removed" upon the land. The public lots reserved in the township had not then been set apart. But the parties virtually agreed, that, when settlers were put on and when the public lots were set apart, one fourth, or thereabouts, of the lands in the whole town belonging to settlers should, on the payment of a mere nominal consideration, come out of these six thousand acres, and, in like manner, oné fourth of. the public lots should be taken therefrom.
This being the special agreement of the parties, the next inquiry is,- has it been carried into effect in a manner so as legally to sustain the judgment rendered below ?
The controverted expressions in the deed seem, iri their most obvious import, either to except from the land conveyed the lots which settlers should' select, or to make it a condition of the grant, that 'the' title to those lots should afterwards be vested in them. The form of the uling of the court leaves it a little uncer
tain on which of these grounds the opinion rested, as, after a recital of the evidence in the case, the bill of exceptions says : —
“ Upon this evidence the honorable justice, who presided at said trial, ruled that the mortgage deed offered in evidence by the defendant, given to the said Trustees of Williams College, dated the 5th day of June, 1827, marked 5, does not comprehend and cover the two lots, 11th in the 4th raBge, and 11th in the 5th range, being the premises demanded.”
At the first blush, it might be inferred that the judge held .these lots did not pass .at all under the mortgage, having been considered as excepted or reserved. Mallett v. Foxcroft, 1 Story’s R. 477. But we are inclined to think, that so stringent a view of his ruling is not indispensably necessary; and if it were, we see no reason why the judgment is not to be sustained, as right in substance, and according to the merits of the case, — if, at the time the writ of right was brought, the title to these lots was not in the mortgagee or his grantees, but was rather in the- demandant, under, one of the views or constructions before mentioned.
The learned judge might well mean, that the mortgage “does not comprehend and cover the two lots ” in. dispute, as matters stood, after the settling, partition, and conveyance to David Mallett, and he. would thus regard the'provision as a .condition which had been executed. This would be free from much difficulty. On dip contrary, it is supposed by the plaintiff that he regarded it as an exception or reservation of the last lots. This would be, in the spirit and intent of the parties, as the former clause had been, an
excepting
or
reserving
of the first-named lots. If deciding so (1 Story, 477), he doubtless considered, that the last , lots would ere long be set apart and marked, and thus become certain on the principles contained in the deed and in the statutes as to settlers and partitions, py the proprietors.of towns ; and he, therefore, may have felt justified in regarding now as sufficiently» certain .what could be afterwards made certain*,
id certum est quod
certum.
reddi potest
(Jackson v. Lawrence,11 Johns. R. 191.) But, in some respects^ it is not quite so natural or safe a view to regard this last clause as a reservation or exception, nor does the judge call it so in the ruling. An exception or reservation is sometimes void for uncertainty, and sometimes for being ,in favor of third persons. 4 East, 464 ; Thompson
v.
Gregory,. 4 Johns. R. 81 ; 9 Johns. R. 73; Co. Litt. 143,
a.
. Those objections have been urged in this case ; and it may, therefore, be least exceptionable to regard the last clause, as it is called in the deed, a condition. Rice v. Osgood et al., 9, Mass. R. 43 ; Gray v. Blanchard, 8 Pick. 284. This view seems well sustained both by the language used and the nature-of the transaction. The preceding clause is in words,
eo nomine, excepting
or
reserving,
while this is
eo nomine
on “
condition
” ; and the lots.
there referred to were previously set apart, marked, and identified, while these were not so set apart, but still held in common and in some degree uncertain. The phraseology was also changed in the last clause from “ excepting and reserving” to ££ condition,” probably because the latter expression was deemed more appropriate as to lots not then selected or identified, but which were intended and virtually agreed to be, afterwards.
Such an agreement would in its spirit, no less than words, be a condition, as it'would be “ abridle ” or restraint on the grant, which is one of Shepherd’s definitions of a condition. Shep. Touch., ch. 6.
■ The nature of a transaction, as well as the language, may well be regarded .always in deciding whether a case is a reservation or a condition. 13 Maine R. 31; 15 Maine R. 216 ; 4 Johns. R. 82 ; .1 D. & E. 645 ; Shep. Touch., ch.’6, p. 122 ; 12 Pick. 156.
A charge like this, imposed in a deed by the State, though using words of reservation, was adjudged to be a condition in Hovey
v.
Deane, 13 Maine R. 31 ; and same case, 15 ibid. 216 ; Dunlap
v.
Stetson, 4 Mason, 349. So a provision may be inserted in an instrument as to land, which will be construed either a condition or a covenant, as seems most appropriate. Bac. Abr. Condition, G. And words of limitation may be taken for a condition. Com. Dig.
Condition,
A ; 11 Mod. R. 61.
But whichever the last clause should be considered as operating, consistent with legal principles, the result on the interests of the parties would be much the same. In the former view,-as an exception or reservation, the land afterwards set apart for these lots would be_ regarded as rn.ver passing at all to the mortgagee or his grantees, while, in the latter view, as a condition, it would pass, but only on condition of being vested in the settlers, so soon as set •apart and conveyed to them; and as the latter has already been done, the title would not be now in the tenant, under either of these views.
Were-it necessary to give validity to-the clause, and it would be bad either as a reservation, exception, or condition, it would be no unusual stretch of construction to consider it as a covenant tp stand •seized to the' use of the settlers, and in this way reach a like result. Jackson
v.
Swart, 20 Johns. R. 87 ; Bedel’s case, 7 Coke, 40.
A deed is, if possible,' to be made operative in some way ;• and the construction should be liberal, in order to effect that object, and enforce the original design.; 2 Wils. 75 ; Willes, 682 ; 5 Barn. & Cressw. 106 ; 2 Saund. 96, note ; Preston on Conveyancing, 41 ; Broomes Legal Maxims, 238, 239.
Making these important’clauses, then, in the deed from Ingersoll, operative-, and near as may be in conformity to the original design, whieh was both legal and- laudable, why should they not bind subsequént mortgagees and grantees ?
- Samuel Malletf, having obtained no interest in’ the six thousand
acres, so far as regards the lots then marked and reserved, and nene whatever in the whole tract, free from the condition and charge we have been describing,.— of other lots to be afterwards marked and assigned, as these have been, to settlers, — how could' he pass to others, by a mortgage, a greater interest than he obtained ?
That condition or charge was on the land, as an encumbrance, by.the very terms of the deed to him; and he could not, if he tried, convey a title' to the land which should be free from it. Such a condition attaches to.the land wherever it goes,
u
although the same pass through the hands of a hundred men.” (Shep. Touch., ch. 6 ; Perkins, § 818 ;
2
Preston on Conveyancing, 412 ; 1 Co. Litt. 230,
b.
In óur view, it operates like a covenant, which runs with the
land;
and all assignees are bound by covenants real, that run with, the land. Spencer’s case, 5. Coke, 15-17 ; Co. Litt. 47,
a;
Shep. Touch. 161, ch. 6, 176 ; Com. Dig.
Condition;
3 D. & E. 393 ; 1 Paige’s R. 412, 455.
The condition, or charge, was also public, —r.on record,
in ex-tenso,
in the deed from Ingersoll. That deed was expressly referred to in the mortgage to the College ; and the value of the whole, in Samuel Mallett’s hands, or in those of his mortgagees, would be known by all to be, at that time, redúced in proportion.
By proceeding afterwards to get the partition made by the proprietors, and to execute the deed to David Mallett, so as to perform his duty in respect to this condition, he did not, as seems to be contended, reduce'further the value of the land to hims.elf or mortgagees, or part with any portion of ij not before subject to be thus taken.
The extent 'and nature of his title being spread upon record, nobody could be misled, and nothing could pass by his mortgage,, free from the same conditions and reservations under which it had come to him ; and whenever certain lots . should afterwards be set apart and conveyed to settlers, — it being in conformity with the condition, — they could not and ought not longer to be held or retained under the mortgage deed. Nor is the subsequent' setting apart of the premises, and the conveyance of them to settlers, a withdrawal of any part of- the mortgaged security, as is argued by the plaintiff in error ; • because that security embraced the six thousand acres only as subject to such an event; and its happening was provided for, and was an open and express condition of the title to the property which was held as security.
It is likewise urged by the plaintiff ,in error, that Mallett might, like Ingersoll, havet agreed to perform the duties towards settlers, in money. But he did not. So, without any agreement, he might have done it with money, and not left it to become an actual charge on the land, in his mortgáge, though placed as á conditional charge oh it by Ingersoll. But he did not. So it is said the condition here is a subsequent one, and the title vests, subject to be divested
only by a breach and an entry for condition broken, and which entry has never been made. Rice v. Osgood et al., 9 Mass. R. 38 ; 2 Cruise, title 13, § 15.
But it has not been broken, and hence no entry, by Ingersoll or others, is necessary for condition broken. . On the contrary, the condition has been fulfilled, by a performance of' the duty to the settlers, in getting their lots set apart and conveyed to them ■; and thus the title to those lots is vested in them now, as thé“ condition prescribed, rather than remaining in the grantee' or mortgagee. Rice
v.
Osgood et al., 9 Mass. R. 44.
There is no difficulty, then, about a breach and an entry, as every thing has been fulfilled In the manner it ought to have been done... So, in answer to another objection, it is clear that this fulfilment was.attended to as .properly.by the mortgagor, before a foreclosure,vas by the mortgagee. 18 Mass. R. 87 ; Bradley v. Fuller, 23 Pick. 9 ; 2 Greenleaf, 132. The mortgagor was in charge of the land, and was still the owner,-for all purposes except the security of the creditor. That security is not lessened by what he did in this respect.
Another point has been much argued in relation to the mortgage, which, in this view of the subject, is not material. It ip, that the mortgage deed does not contain the condition. After describing the premises, it is true that it does not go into details as to the several exceptions, reservations, and conditions in the deed to Samuel Mallett, but merely adds, “being the same this day conveyed to me by Nath’l Ingersoll, as by his deed, reference thereto being had. ” This reference, it is contended, is not broad enough to include or cover the exceptions and conditions. But it could not be considered a forced construction to hold that the whole of the . deed referred to should be regarded and considered as showing he intended to reconvey for security all, and no more or less, in any view, than what had just been conveyed to him. Field v. Huston, 21 Maine R. 69, 72 ; 22 ibid. 327 ; Foss et al.
v.
Crisp, 20 Pick. 121. The reference to the deed might as properly be considered to indicate the interests as the premises just received. In either view, the lots reserved would be reached, as they were connected not only with the title but the quantity of land meant to' be conveyed. So as to any charges in the form of a condition imposed on the land, they would be embraced, even under a reference to the premises,.as those charges are contained in the same sentence, and tend to show a diminished quantity of land passing absolutely.
Both deeds were also parts of one transaction, and may well be construed together, as having a like object in respect to the extent of the interests no less than the premises. But was the conclusion different, the case would, in the view first taken by us, and which is the legal view-, be merely that of a grantor undertaking to sell or
mortgage a larger interest than he possessed, or an interest unencumbered, which was in fact encumbered ; and the remedy for such an excess in the conveyance is an action on the covenants, and not to construe the deed as granting more than the grantor himself possessed.
There have been some other questions raised in-the argument of tl}is case, which it is not material to consider under the only ruling, at the trial which is excepted to, and which relates entirely to what passed by the mortgage.
One of them is the effect of a former recovery by Foxcroft and Webber against Mallett, in the proceedings for a partition, where the title of the latter to the lots now in controversy was questioned and tried ; but this, being a writ of right, is probably not barred by any prior recoveries between these parties. Mallett
v.
Foxcroft, 1 Story’s R. 477. Another of these questions is the correctness of the partition made by the proprietors of this township, when the two lots in controversy were set off to Samuel Mallett. Such a partition, however, though the ruling on it is not excepted to in the record, is supposed to be valid under the statutes of Maine, and the usages that have long prevailed in New England among land proprietors of townships situated there. Smith’s Laws of Maine, 175 ; 3 Shepley, 401 ; 12 Pick. 534 ; 3 Fairfield, 398 ; 10 Mass. R. 146 ; . 3 Pick. 396 ; 12 Mass. R. 415 ; 2 Greenleaf, 213 ; 4 New Hamp. R. 99 ; 3 Vermont R. 290 ; 6 Vermont R. 208;
In conclusion, it has been urged against the judgment we have formed in favor of the right of the demandan*, that several actions have been tried in Maine, where his interests have been brought in question as to the premises, and decisions had against him ; and that such local adjudications in respect to the titles to real estate should control the opinions of this court. 9 Cranch, 87 ; 2 Wheat. 316 10 Wheat. 152 ; 12 Wheat. 153 ; 2 Gallis. 105. But on examining the particulars of the cases cited to govern this •(3 Fairfield, 398 ; 4 Shepley, 84, 88 ; 14 Maine R. 51), it will be seen that the construction of the mortgage to the College, in respect to this reservation or condition, never appears to have-been agitated. If it had been, the decision would be entitled to high respect, though it should not be regarded as conclusive on the mere construction of a deed as to matters and language belonging to the common law, and not to any local statute. 3 Sumner’s R. 136, 277.
Let the judgment below be affirmed.