Johnson, Judge,
delivered the opinion, of the Court:
As most of the-questions for adjudication in the record are presented by the instructions given and refused, we will consider the instructions in their order, beginning with those asked for by the plaintiff, and refused by the court.
The first instruction was properly refused, as among other reasons it ignores the fact, that the condition therein referred to may have been waived by the grantor in the deed, or by the act of said grantor it might have been impossible, or unnecessary, to comply therewith.
The second instruction, “that if the jury believe from the evidence that the defendant failed to get from William Thompson a right of way through the land in controversy under its contract with Huffard, before said Huffard and wife conveyed said land to Jones, then the plaintiffs have the right to recover,” was properly refused, for the reason above stated, that it does not negative the fact, that Huffard by his own act made it unnecessary to comply with the said condition.
The third was properly refused. It is: “ If the jury believe from the evidence, that the contract of sale made by Huffard to Thompson, and referred to in the deed from Huffard to the Chesapeake & Ohio Railroad Co., failed by the act of Thompson, then the provision in said deed making it null and void is in full force, and the plaintiffs are entitled to recover in this action.” The instruction was calculated to mislead the jury, because there is no evidence in the record even tending to prove, that the contract fell through more by the act of Thompson than Huffard.
The fourth instruction should have been refused, as it was, because it would have been manifestly improper for the court to have instructed the jury what right Mary W. Huffard would, or would not, have in the land after the death of her husband, as such an instruction was not rele-[522]*522vant to the case on trial, and tended to eoiif use, if not mis-the jury.
There was no exception taken to the giving of the first instruction asked for by the defendant; and it seems to me it is free from objection.
The second of said instructions given to the jury, after stating the condition of the deed, as follows: “it is understood, that inasmuch as the party of the second (meaning first) part has contracted to sell his land aforesaid to William Thompson of Kentucky, the right of way to build the said railway must first be procured from the said Thompson, otherwise this deed is to be void,” proceeds: “respecting this provision of the said deed the court instructs the jury, that if 'they believe from the evidence, that the contract therein referred to, between J. W. Huffard' and William Thompson, has been consummated, then such provision constitutes a subsisting and binding part of said deed; but if on the other hand they believe from the evidence, that the said contract has failed and been abandoned by the parties thereto, and that by the act of said Huffard the said Thompson has no longer any interest in said lands, then such provision can have no force whatever.”
Does this instruction correctly propound the law ?
The Supreme Court of the United States in Finlay et al. v. King’s lessee, 3 Pet. 346, held, that “it is certainly syllabus 1. settled, that there are no technical appropriate words, which always determine whether a devise be on a condition precedent or subsequent. The same words have been determined differently; and the question is always a question of intention. If the language of the particular clause, or of the whole will, shows, that the act, upon which the estate depends, must be performed before the estate can vest, the condition of course is precedent; and unless it is performed the devisee can take nothing. If on the contrary the act does not. necessarily precede the vesting, but may accompany or follow it, if [523]*523this is to be collected from the whole will, the condition is subsequent.”
The above language of Chief Justice Marshall is certainly the law, and applies as well to a deed as to a will.
The language of the condition shows, that it was precedent, and not subsequent; and there is nothing in the deed to show that the intention of the parties was that any estate should vest,until the condition was performed. It is evident, that Huffard did not want to embarrass himself in his sale of the fifty acres to Thompson ; and therefore he provided in the deed, that the railroad company should first procure the consent of Thompson to the right of way, before any estate from him would vest; but it is equally clear from said deed, that whenever such consent of Thompson was procured, or whenever it was not necessary to protect the rights of Huffard to procure such consent, then the estate would vest.
In Jones et al. v. Bramblet, et al., 2 Ill. (1 Scam.) 276,it was held, that “if a testator annex a condition to the creation of an estate, the performance of which afterwards becomes .Syllabus 2. impossible, the devisee will take the estate discharged of the condition the condition however in that case was a condition subsequent. But whether the condition be precedent or subsequent, if the act of the party, who imposed the condition, makes its performance un-unnecessary or impossible, the condition is no longer binding, and.the estate conveyed by the deed, in which it is contained, is discharged therefrom. Young v. Hunter 2 Seld. 203.
It is evident from the record in the case here, that the the act of Huffard contributed to the abandonment of the contract giving Thompson any interest in the land. The plaintiffs prove, that in 1869 Thompson boarded with Huffard, s“and then had a contract for the purchase of the said fifty acres of land from Huffard, but that it fell through, and that said Huffard resided on the said fifty acres in 1869, and prior thereto, and up to the time that he sold to Jones, when Jones moved on said tract.” If [524]*524he had a contract that was legal, and it does not appear in the record that the contract was in writing, with Thompson, he could have enforced it, but he chose to abandon it and sell the land to Jones. I think the second instruction was substantially correct, and was properly given.
The third instruction, we think, propounds the law correctly. It is certainly not essential to the validity of a deed to a railroad company, any more than to a natural person, that the grantee should sign the deed, that is, such a deed as that executed in this case to the railroad company.
The fourth instruction correctly propounds the law; and the court did not err to the prejudice of the plaintiffs in giving it. I fail to see the relevancy of the latter part of the instruction to the case before the jury. It is as follows: “And the statute of limitations will not commence to run in favor of the defendant until after the said life-estate terminates.”
It is claimed, that the court erred in refusing to set aside the verdict and grant a new trial, “because the verdict gave the defendant th efee simple right to the one acre of land in its possession, when the evidence showed that the said defendant claimed only the life-estate of syllabus 3 James IV. Huftard in the said one acre of ground.” The learned counsel making the objection, is entirely mistaken as to the effect of the verdict.
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Johnson, Judge,
delivered the opinion, of the Court:
As most of the-questions for adjudication in the record are presented by the instructions given and refused, we will consider the instructions in their order, beginning with those asked for by the plaintiff, and refused by the court.
The first instruction was properly refused, as among other reasons it ignores the fact, that the condition therein referred to may have been waived by the grantor in the deed, or by the act of said grantor it might have been impossible, or unnecessary, to comply therewith.
The second instruction, “that if the jury believe from the evidence that the defendant failed to get from William Thompson a right of way through the land in controversy under its contract with Huffard, before said Huffard and wife conveyed said land to Jones, then the plaintiffs have the right to recover,” was properly refused, for the reason above stated, that it does not negative the fact, that Huffard by his own act made it unnecessary to comply with the said condition.
The third was properly refused. It is: “ If the jury believe from the evidence, that the contract of sale made by Huffard to Thompson, and referred to in the deed from Huffard to the Chesapeake & Ohio Railroad Co., failed by the act of Thompson, then the provision in said deed making it null and void is in full force, and the plaintiffs are entitled to recover in this action.” The instruction was calculated to mislead the jury, because there is no evidence in the record even tending to prove, that the contract fell through more by the act of Thompson than Huffard.
The fourth instruction should have been refused, as it was, because it would have been manifestly improper for the court to have instructed the jury what right Mary W. Huffard would, or would not, have in the land after the death of her husband, as such an instruction was not rele-[522]*522vant to the case on trial, and tended to eoiif use, if not mis-the jury.
There was no exception taken to the giving of the first instruction asked for by the defendant; and it seems to me it is free from objection.
The second of said instructions given to the jury, after stating the condition of the deed, as follows: “it is understood, that inasmuch as the party of the second (meaning first) part has contracted to sell his land aforesaid to William Thompson of Kentucky, the right of way to build the said railway must first be procured from the said Thompson, otherwise this deed is to be void,” proceeds: “respecting this provision of the said deed the court instructs the jury, that if 'they believe from the evidence, that the contract therein referred to, between J. W. Huffard' and William Thompson, has been consummated, then such provision constitutes a subsisting and binding part of said deed; but if on the other hand they believe from the evidence, that the said contract has failed and been abandoned by the parties thereto, and that by the act of said Huffard the said Thompson has no longer any interest in said lands, then such provision can have no force whatever.”
Does this instruction correctly propound the law ?
The Supreme Court of the United States in Finlay et al. v. King’s lessee, 3 Pet. 346, held, that “it is certainly syllabus 1. settled, that there are no technical appropriate words, which always determine whether a devise be on a condition precedent or subsequent. The same words have been determined differently; and the question is always a question of intention. If the language of the particular clause, or of the whole will, shows, that the act, upon which the estate depends, must be performed before the estate can vest, the condition of course is precedent; and unless it is performed the devisee can take nothing. If on the contrary the act does not. necessarily precede the vesting, but may accompany or follow it, if [523]*523this is to be collected from the whole will, the condition is subsequent.”
The above language of Chief Justice Marshall is certainly the law, and applies as well to a deed as to a will.
The language of the condition shows, that it was precedent, and not subsequent; and there is nothing in the deed to show that the intention of the parties was that any estate should vest,until the condition was performed. It is evident, that Huffard did not want to embarrass himself in his sale of the fifty acres to Thompson ; and therefore he provided in the deed, that the railroad company should first procure the consent of Thompson to the right of way, before any estate from him would vest; but it is equally clear from said deed, that whenever such consent of Thompson was procured, or whenever it was not necessary to protect the rights of Huffard to procure such consent, then the estate would vest.
In Jones et al. v. Bramblet, et al., 2 Ill. (1 Scam.) 276,it was held, that “if a testator annex a condition to the creation of an estate, the performance of which afterwards becomes .Syllabus 2. impossible, the devisee will take the estate discharged of the condition the condition however in that case was a condition subsequent. But whether the condition be precedent or subsequent, if the act of the party, who imposed the condition, makes its performance un-unnecessary or impossible, the condition is no longer binding, and.the estate conveyed by the deed, in which it is contained, is discharged therefrom. Young v. Hunter 2 Seld. 203.
It is evident from the record in the case here, that the the act of Huffard contributed to the abandonment of the contract giving Thompson any interest in the land. The plaintiffs prove, that in 1869 Thompson boarded with Huffard, s“and then had a contract for the purchase of the said fifty acres of land from Huffard, but that it fell through, and that said Huffard resided on the said fifty acres in 1869, and prior thereto, and up to the time that he sold to Jones, when Jones moved on said tract.” If [524]*524he had a contract that was legal, and it does not appear in the record that the contract was in writing, with Thompson, he could have enforced it, but he chose to abandon it and sell the land to Jones. I think the second instruction was substantially correct, and was properly given.
The third instruction, we think, propounds the law correctly. It is certainly not essential to the validity of a deed to a railroad company, any more than to a natural person, that the grantee should sign the deed, that is, such a deed as that executed in this case to the railroad company.
The fourth instruction correctly propounds the law; and the court did not err to the prejudice of the plaintiffs in giving it. I fail to see the relevancy of the latter part of the instruction to the case before the jury. It is as follows: “And the statute of limitations will not commence to run in favor of the defendant until after the said life-estate terminates.”
It is claimed, that the court erred in refusing to set aside the verdict and grant a new trial, “because the verdict gave the defendant th efee simple right to the one acre of land in its possession, when the evidence showed that the said defendant claimed only the life-estate of syllabus 3 James IV. Huftard in the said one acre of ground.” The learned counsel making the objection, is entirely mistaken as to the effect of the verdict. It was not to establish the right of the defendant to the land; because the defendant, according to the well settled law, could as well have defeated the plaintiffs by showing an outstanding title in some other person than the plaintiffs, as to show that it had the title in itself. The plaintiff in ejectment must recover upon the strength of his own title, and not upon the weakness of the title of his adversary. The declaration asserts, that the defendant unlawfully withholds from the plaintiffs the possession of the premises. The verdict says it does not.
Section 23 of chapter 90 of the Code provides : “ If [525]*525the jury be of opinion for the plaintiffs, or any of them, the verdict shall be for the plaintiffs, or such of them as" appear to have right to the possession of the premises or< any part thereof, and against such of the defendants as were in possession thereof, or claimed title thereto, at the commencement of the action.”
Section 24 declares: “Where any plaintiff appears to have no such right, the verdict, as to such plaintiff, shall be for the defendant.”
The verdict in this case was in strict accordance with the 24th section. The plaintiffs did not appear to have any right to the possession of the land in possession of the defendant at the commencement of the action, and therefore the verdict for the defendant was proper. The verdict was proper in the form it was rendered : “We, the jury, find for the defendant.” It was a general verdict of not guilty; and there was no need of a disclaimer; there was nothing for the defendant to disclaim. It had recovered nothing. It had prevented the plaintiffs from recovering from it the little strip of ground over which it claimed the right of way.
While the disclaimer was unnecessary, its being entered of record did no injury to the plaintiffs.
It is objected, that the deed of Huffard to the railroad company is too vague and indefinite in its description of the land referred to therein. It is a sufficient answer to this objection, that the deed was admitted in evidence to the jury without objection.
We see no error in the judgment of the circuit court rendered in this case and the same is affirmed with $30.00 damages and costs.
The Other Judges CoNcurred.
Judgment Affirmed.