By the Court,
Miller, J.
I think that, the defendant Hallenbeck was a competent witness to prove the declarations made by the deceased. In McCray v. McCray, (12 Abb. 1-4,) it was decided that the natural and obvious meaning of the words “representatives of a deceased person,” as they [84]*84are used in section 399 of the code, is executors and administrators. That case presented the same question as the one now under consideration, and it is quite clear that the-plaintiffs in this suit were not the representatives of a deceased person, within the meaning of section 399 of the code.
The declarations of Ezra Spaulding were competent evidence in the case. He was the grantor of the premises in question and a party to the contract embraced in the conveyance. He was an original party to the record and identified in interest with the plaintiffs. (1 Greenl. Ev. § 171.) The admission made by him was against his own interest and tended to establish a sufficient consideration for the deed. The evidence was a part of the res gestee. (1 Greenl. Ev. § 109.) The plaintiffs attempted to prove that the defendant Hallenbeck had failed to fulfill the conditions of the deed. The defendants, to contradict this evidence, introduced the declarations of Spaulding, showing that he was entirely satisfied with his treatment by Hallenbeck. This was an important and a material issue in the case, and the declarations of the party were clearly admissible.
The remaining exceptions relate to the charge of the judge in submitting the case to the jury. The points raised as to the consideration and the validity of the deed from Spaulding and wife to Hallenbeck were fully considered and decided by the general term upon the former appeal, and must therefore be regarded as res adjudicata. (30 Barb. 292.) I shall therefore pass to a consideration of the other objections to the charge. It is insisted that the judge erred in charging the jury that Ezra Spaulding waived the conditions of his deed if he was satisfied.with his treatment and so expressed himself.; that the waiver, if there was any, could only have been up to the time he expressed himself, which was long before he left Hallenbeck; and that the omission to express dissatisfaction did not waive his right to insist upon a strict performance of the contract. I think the charge of the judge was sufficiently restricted, so as to confine it to the time when [85]*85Spaulding expressed himself satisfied with, his treatment. The fair and legitimate import of the words employed cannot he said to bear a different interpretation. In fact the judge stated explicitly, in his charge, that if he, Spaulding, was satisfied and expressed himself satisfied with the manner in which he was treated, it. was to that extent a waiver of a strict performance by the defendant of the condition of the deed. It seems to me that this was a limitation of the charge and confined it to the time when the expressions were made. It was in substance submitting to the consideration of the jury the declarations of Spaulding as of the time when made, and qualifying them to that extent. It cannot, I think, be fairly claimed that the judge intended to charge that these declarations related to a period subsequent to the time when made, or that he meant they should bear any such construction. It seems to me that this portion of the charge was substantially correct. Hor do I understand that the charge embraced the proposition that Spaulding’s omission to express dissatisfaction was a waiver of his right to insist upon a strict performance of the contract, or that it conveyed any such idea. If, however, the charge was not satisfactory, and the plaintiff had desired more definite instructions, he should have made a request for them. If he had considered the charge as uncertain in this respect and had wished the judge to limit it, he should have thus expressed himself, and I doubt not the judge would have so charged. But no such request was made, and it would be a forced construction—a perversion of the plain and true meaning of the charge (as I think it must have be'en intended and understood—) to hold that the language employed conveyed an erroneous impression to the jury. If there was any question the remedy was plain and the plaintiff should have asked for more pointed and more explicit instructions. As he failed to do so, I think there is no force in the objection.
It is claimed that the judge erred in charging the jury that a substantial compliance with the contract was sufficient to [86]*86save the defendants from a forfeiture, and in leaving it to the jury to determine what was a substantial compliance with the contract. Assuming that the charge goes to the extent claimed, it involves the question whether the condition in the deed is a penalty or forfeiture intended as security for the performance of the contract, and whether the grantor had a right to insist upon a strict technical performance of the terms of the condition.
There is a class of English cases which would appear to hold that in all cases of forfeiture for a breach of any covenant other than a covenant to pay rent, no relief ought to be granted in equity unless upon the ground of accident, mistake, fraud or surprise, although the breach is capable of a just compensation. (Hill v. Barclay, 16 Ves. 402. 18 id. 56. Reynolds v. Pitt, 19 id. 134.)
It will be observed that the cases cited were actions of ejectment, founded on.a breach of a collateral covenant in the lease, where it would be at least difficult to obtain an adequate compensation in damages, and where the equities appeared to be very much against the defendant. In 16 Vesey, 402, Lord Chancellor Eldon says: “ There is no ground for relieving a tenant whose conduct with reference to his covenant has been gross and ruinous, that the landlord may be placed in the same situation by afterwards putting the premises in sufficient repair.' How can it be ascertained that the subsequent repairs do put the landlord in the same state ?” It was partially on these grounds that equitable relief was refused in the case last cited. But the doctrine sought to be established even in such cases is received with some hesitation in this country. (Story’s Eq. Jur. § 1323. Harris v. Troup, 8 Paige, 425.) A distinction is attempted to be made, and where the condition of forfeiture is merely a security for the non-payment of rent, then it' is to be treated merely as security in the nature of a penalty, and is relievable; but where the forfeiture arose from a breach of any collateral covenant, then courts of equity would not relieve. (Story’s Eq. Jur. [87]*87§§ 1320, 1321.) G-reat doubts however are expressed in regard to the soundness of the distinction between the two classes of cases as recognized in the English cases. (Story’s Eq. Jur. §§ 1322, 1323. vol. 2, p. 754, note 1.) Mr. Justice Story in his Commentaries, also says: “ Doubts have been expressed as to the solidity of the foundation on which the doctrine of affording relief in such cases rests. But whatever may be the origin of the doctrine, it has been for a great length of time established and is now expanded, so as to embrace a variety of cases not only when money is paid, but when other things are to be done and other objects are contracted for." (See Story’s Eq. Jur. §§ 1313, 1314, 1315, n. Skinner v. Dayton, 2 John. Ch. 535.)
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By the Court,
Miller, J.
I think that, the defendant Hallenbeck was a competent witness to prove the declarations made by the deceased. In McCray v. McCray, (12 Abb. 1-4,) it was decided that the natural and obvious meaning of the words “representatives of a deceased person,” as they [84]*84are used in section 399 of the code, is executors and administrators. That case presented the same question as the one now under consideration, and it is quite clear that the-plaintiffs in this suit were not the representatives of a deceased person, within the meaning of section 399 of the code.
The declarations of Ezra Spaulding were competent evidence in the case. He was the grantor of the premises in question and a party to the contract embraced in the conveyance. He was an original party to the record and identified in interest with the plaintiffs. (1 Greenl. Ev. § 171.) The admission made by him was against his own interest and tended to establish a sufficient consideration for the deed. The evidence was a part of the res gestee. (1 Greenl. Ev. § 109.) The plaintiffs attempted to prove that the defendant Hallenbeck had failed to fulfill the conditions of the deed. The defendants, to contradict this evidence, introduced the declarations of Spaulding, showing that he was entirely satisfied with his treatment by Hallenbeck. This was an important and a material issue in the case, and the declarations of the party were clearly admissible.
The remaining exceptions relate to the charge of the judge in submitting the case to the jury. The points raised as to the consideration and the validity of the deed from Spaulding and wife to Hallenbeck were fully considered and decided by the general term upon the former appeal, and must therefore be regarded as res adjudicata. (30 Barb. 292.) I shall therefore pass to a consideration of the other objections to the charge. It is insisted that the judge erred in charging the jury that Ezra Spaulding waived the conditions of his deed if he was satisfied.with his treatment and so expressed himself.; that the waiver, if there was any, could only have been up to the time he expressed himself, which was long before he left Hallenbeck; and that the omission to express dissatisfaction did not waive his right to insist upon a strict performance of the contract. I think the charge of the judge was sufficiently restricted, so as to confine it to the time when [85]*85Spaulding expressed himself satisfied with, his treatment. The fair and legitimate import of the words employed cannot he said to bear a different interpretation. In fact the judge stated explicitly, in his charge, that if he, Spaulding, was satisfied and expressed himself satisfied with the manner in which he was treated, it. was to that extent a waiver of a strict performance by the defendant of the condition of the deed. It seems to me that this was a limitation of the charge and confined it to the time when the expressions were made. It was in substance submitting to the consideration of the jury the declarations of Spaulding as of the time when made, and qualifying them to that extent. It cannot, I think, be fairly claimed that the judge intended to charge that these declarations related to a period subsequent to the time when made, or that he meant they should bear any such construction. It seems to me that this portion of the charge was substantially correct. Hor do I understand that the charge embraced the proposition that Spaulding’s omission to express dissatisfaction was a waiver of his right to insist upon a strict performance of the contract, or that it conveyed any such idea. If, however, the charge was not satisfactory, and the plaintiff had desired more definite instructions, he should have made a request for them. If he had considered the charge as uncertain in this respect and had wished the judge to limit it, he should have thus expressed himself, and I doubt not the judge would have so charged. But no such request was made, and it would be a forced construction—a perversion of the plain and true meaning of the charge (as I think it must have be'en intended and understood—) to hold that the language employed conveyed an erroneous impression to the jury. If there was any question the remedy was plain and the plaintiff should have asked for more pointed and more explicit instructions. As he failed to do so, I think there is no force in the objection.
It is claimed that the judge erred in charging the jury that a substantial compliance with the contract was sufficient to [86]*86save the defendants from a forfeiture, and in leaving it to the jury to determine what was a substantial compliance with the contract. Assuming that the charge goes to the extent claimed, it involves the question whether the condition in the deed is a penalty or forfeiture intended as security for the performance of the contract, and whether the grantor had a right to insist upon a strict technical performance of the terms of the condition.
There is a class of English cases which would appear to hold that in all cases of forfeiture for a breach of any covenant other than a covenant to pay rent, no relief ought to be granted in equity unless upon the ground of accident, mistake, fraud or surprise, although the breach is capable of a just compensation. (Hill v. Barclay, 16 Ves. 402. 18 id. 56. Reynolds v. Pitt, 19 id. 134.)
It will be observed that the cases cited were actions of ejectment, founded on.a breach of a collateral covenant in the lease, where it would be at least difficult to obtain an adequate compensation in damages, and where the equities appeared to be very much against the defendant. In 16 Vesey, 402, Lord Chancellor Eldon says: “ There is no ground for relieving a tenant whose conduct with reference to his covenant has been gross and ruinous, that the landlord may be placed in the same situation by afterwards putting the premises in sufficient repair.' How can it be ascertained that the subsequent repairs do put the landlord in the same state ?” It was partially on these grounds that equitable relief was refused in the case last cited. But the doctrine sought to be established even in such cases is received with some hesitation in this country. (Story’s Eq. Jur. § 1323. Harris v. Troup, 8 Paige, 425.) A distinction is attempted to be made, and where the condition of forfeiture is merely a security for the non-payment of rent, then it' is to be treated merely as security in the nature of a penalty, and is relievable; but where the forfeiture arose from a breach of any collateral covenant, then courts of equity would not relieve. (Story’s Eq. Jur. [87]*87§§ 1320, 1321.) G-reat doubts however are expressed in regard to the soundness of the distinction between the two classes of cases as recognized in the English cases. (Story’s Eq. Jur. §§ 1322, 1323. vol. 2, p. 754, note 1.) Mr. Justice Story in his Commentaries, also says: “ Doubts have been expressed as to the solidity of the foundation on which the doctrine of affording relief in such cases rests. But whatever may be the origin of the doctrine, it has been for a great length of time established and is now expanded, so as to embrace a variety of cases not only when money is paid, but when other things are to be done and other objects are contracted for." (See Story’s Eq. Jur. §§ 1313, 1314, 1315, n. Skinner v. Dayton, 2 John. Ch. 535.)
The principle laid down by Lord Eldon, in 16 Vesey, and sustained in the cases referred to, could not be regarded as applicable to the case under advisement, for the condition of the deed in the case at bar was doubtless intended as security in the nature of a penalty, and cannot in any way be considered in the light of a collateral covenant to repair under a lease, where no adequate compensation in damages could be obtained in an action for-a breach of it.
The provision, in the deed from Spaulding and wife, was a condition subsequent; to be performed after its execution and delivery. Eo precise technical words are necessary to make a condition precedent or subsequent. The construction must depend upon the intention of the parties. (3 Cruise’s Dig. 468, tit. 32, ch. 24, § 7. Id. tit. 13, ch. 1, § 10. Blacksmith v. Fellows, 3 Seld. 401.) It may depend upon the order or time in which the conditions are to be performed. (Parmelee and others v. The Oswego and Syracuse R. R. Co., 2 Seld. 74.) If the condition does not necessarily precede the vesting of the estate, but may accompany and follow it, if the act may as well be done after as before the vesting of the estate, the condition is subsequent. (Martin v. Ballou, 13 Barb. 119, 133.) So if from the nature of the act to be performed and the time required for its performance, it is ev[88]*88idently the intention of the parties that the estate shall vest and the grantee perform the act, after taking possession, then the condition is subsequent. (Underhill v. The Saratoga and Washington R. R. Co., 20 Barb. 455. 4 Kent’s Com. 125, 126.) These conditions are not favored in law, and are construed strictly, because they tend to destroy estates, and the rigorous exaction of them is a species of summum jus, and in many cases hardly reconcilable with conscience. (4 Kent's Com. 129. Ludlow v. The New York and Harlem R. R. Co., 12 Barb. 440, 444.) Courts 'of equity will never lend their aid to divest an estate for the breach of a condition subsequent. (4 Kent's Com. 130. Livingston v. Tompkins, 4 John. Ch. 415, 431.) Chancellor Walworth sustained this principle in Livingston v. Stickles, 8 Paige, 398. See also Nicoll v. The New York and Erie R. R. Co., 2 Kern. 121.) Lord Hardwicke says, in Rose v. Rose, (Amb. 332,) “ Equity will relieve against almost all penalties whatsoever; against non-payment of money at a certain day; against all forfeitures.” It is a standing rule that a forfeiture shall not bind when a thing may be done afterward, or any compensation may be made. Forfeitures have always been considered as odious in the law, and courts of law, circumscribed as their jurisdiction is, struggle against them.
The deed in question is upon the express condition that the grantee shall beep, maintain and support the grantors, and if he fail to do so, according to the manner and condition expressed in the conveyance, it is declared to be void and the premises revert back to the grantors. This condition involves a forfeiture of the premises upon a failure of the grantee to perform, and it is quite apparent that it was intended as a security in the nature of a penalty for its performance. It was a condition subsequent, and upon a failure to fulfill its requirements the grantors had a right to re-enter upon the premises. It presents a case somewhat similar to one where rent is payable, and a right of re-entry is reserved upon its non-payment. If the grantee refused to comply with this [89]*89condition he forfeited the estate. It was the penalty which he consented to accept as a condition of the grant. In all such cases equity will relieve; and applying this principle to the condition in this deed, there can he no doubt that it was a clear case where the doctrine of forfeiture in the nature of a penalty, applied, and that the charge of the judge was correct. He fairly left it to the jury to determine whether the defendant intended in .good faith to perform and had substantially performed the condition of the deed, which I think was a correct disposition of the case.
[Albany General Term,
May 5, 1862.
Hogeboom, Peckham and Miller, Justices.]
A new trial should he denied, with costs.