BOARD OF COM'RS OF MAHONING COUNTY et al. v. YOUNG, 59 F. 96

LURTON, Circuit Judge, (after stating the facts.) We quite agree, upon the facts of this record, that the plaintiff’s title is good, and that he is entitled to recover, if the case is to turn alone upon the effect of the common-law dedication made by John Young in 1802. The dedication under the unacknowledged plat of that year was good only as a common-law dedication. The plat was only evidence of the purpose of the dedicator with regard to lots 95 and 96. The acceptance and use by the public of them as a burying ground, taken in connection with the plat, operated as a dedication for burying purposes.

This sort of dedication operated only by estoppel. The acquiescence of the owner, and that use by the public, estopped him from asserting any right of possession hostile to such use. The public acquired an easement for that purpose, and that only. This seems to he the well-settled ground upon which a common-law dedication becomes operative and effective. Fulton v. Mehrenfield, 8 Ohio St. 440; Wisby v. Bonte, 19 Ohio St. 238. The right of the public being a mere easement, the owner of the fee may resume possession whenever there has been a full and lawful abandonment of the use for which, the dedication was made.

The estoppel ceases to operate when the use ceases. “The dedication,” as forcibly put by the circuit judge, “has spent its force” whenever the use becomes impossible. This is the well-settled rule concerning public roads, streets, and alleys, when the fee remains in the owner of land over which a public road has been established. Barclay v. Howell’s Lessee, 6 Pet. 498. The result would be the same under the construction placed upon the Ohio acts of December 6, 1800, and March 3, 1833, by the court of that state.

The acts referred to provide that the due acknowledgment and proper registration of a town plat “should he deemed a sufficient conveyance to vest, the fee of such parcels of ground as are therein expressly named and intended to be for public uses in the county in which such town lies, in trust to and for the uses and purposes therein named, expressed or intended, and for no other uses or purposes whatever.” Under this statute the Ohio court held this statutory title and dedication conferred “no power of alienation discharged of the use by which the purpose of the dedication might be defeated,” and that, “should the sole uses to which the property has been dedicated become impossible of execution, the property would revert to the dedicators or their representatives.” Board of Education v.

Edson, 18 Ohio St. 226. The case of Zinc Co. v. City of La Salle, 117 Ill. 411, 8 N. E. 81, was under a like statute, and is in accord with the Ohio case. It follows, under the law of Ohio, that whether the fee be in the dedicator, or be in the town or county, by virtue of the statute concerning properly registered town plats, the dedicator, or his heirs, may repossess himself whenever it is no longer possible to use the property for the purposes indicated by the dedication, or whenever there has been a full and lawful abandonment of the easement by the beneficiaries.

The lawful and effectual abandonment of these lots as a burying ground would therefore operate to restore the owner to his right of possession by the termination of the easement. The case of Campbell v. City of Kansas, 102 Mo. 326, 13 S. W. 897, goes to this extent, and no further. The parcel of land involved in that snit had been marked upon a town plat as donated for burying purposes. The city council afterwards, by ordinance, caused the bodies there buried to be removed, and converted the plot into a public park.

The plat was never properly acknowledged or registered, and the title therefore remained in the dedicator. The heirs of the original owner sued in ejectment, and recovered; the Missouri court holding that the public had only an easement for burial purposes, and that the lawful abandonment of this easement revested the dedicator with the right of possession. It was not a case of an estate upon condition, but a case of a mere easement for a specified use. This brings us to a consideration of the effect of the deed made in 1868 by the plaintiff to the village of Youngstown.

Is this deed equivalent only to a statutory dedication? Is it a grant subject to be defeated by any subsequent event? To entitle the plaintiff to recover, he must show that the estate conveyed by him has terminated, and that he now is entitled to re-enter.

The construction put upon this deed by the circuit judge was governed by his view of the act of 1867, and, by treating it as a part of the deed, he thought that that act only undertook “to confer upon the village the power and control over the burying ground which the public would have in such grounds, dedicated for burial purposes, at common law;” that it fixed “the trustee to preserve the rights of the public in a common-law dedication;” and that “the authority and control of the council is limited by the act to the preservation of such rights, and, by reading the act into the deed, the same limitation upon the fee therein conveyed is created.” The result of this construction of the act of 1867, when read into the deed, he sums up in his conclusion thus: “The effect of the deed here was to put the parties in exactly the same situation that they would have been in had the dedication of John Young, in 1802, been in accordance with the statute then in force.” This is a strong position.

Its error seems to lie in confounding the distinction between the effect of a grant by deed for a public use and a common-law or statutory dedication for a like purpose. To say that, by reading the act of 1867 into the deed, the effect is to cut: it down into aD instrument operating only as if the grantees held under a statutory or common-law dedication, is to assume the whole point in controversy. We shall not antagonize; the soundness of the construction put on the act of 1867.

If it had been possible, by retrospective legislation, to divest a legal title out of one and vest it in another, the result, after all, would have been hut a statutory dedication. Under the Edson Base, such a dedication, though operating to pass the title for the uses and purposes specified in the instrument, would terminate when the use became impossible. That case may he treated as recognizing no distinction between the duration of a common-law dedication and a statutory dedication operating to pass the legal title.

The well-settled distinction between a grant by deed and a dedication for a particular use is not touched upon in the Edson Base. Subsequently, the same court, in Taylor v. Binford, 37 Ohio St. 262, expressly treated the question as undecided, and reserved its consideration. The circuit judge, whose opinion we are now considering, clearly recognized ibis distinction, and undertook to take this <;ase without the rule affecting grants by deed.

On this subject he said: “Counsel for tic; defendants contend that there is a distinction between a grant by deed and a dedication for a particular or specific use, and that a condition subsequent cannot be (Tented in a deed by limiting the use, unless there be a clause of re-entry for forfeiture; and several strong eases are cited to sustain the claim with respect to a deed. Raley v. Umatilla Co., 15 Or. 180, 13 Pac. 890; Packard v. Ames, 16 Gray, 327; Ayer v. Emery, 14 Allen, 67; Brown v. Caldwell, 23 W. Va. 187; First M. E. Church of Columbia v. Old Columbia Public Ground Co., 103 Pa. St. 608. In Taylor v.

Binford, 37 Ohio St. 262, the supreme court of Ohio declined to decide whether the law of Ohio was in accordance with these authorities, and ttia question is an open one in this state. But these cases do not: apply to the construction of the deed at bar.. Here the conveyance is in Coe to'the village to exercise certain defined possession and control over the land, namely, that possession and control exercised hy the public over an easement acquired by common-law dedication.

The fee reverts, not by entry after condition broken, but by a simple termination of the (‘state on the impossibility of exercising the possession and control for which it. was given.” What is the character of the fee conveyed by this deed? Three solutions are possible:

(1) That it operated, as held by the circuit court, only to pass such qualified fee “as would pass under a statutory dedication,” and that the fee reverts, “not by entry after condition broken, but by a simple termination of the estate on the impossibility of exercising the possession and control for which it was given.”

(2) That it conveyed the fee, subject to be defeated by the happening of a condition subsequent.

(3) That it conveyed an absolute fee, subject to a trust that it should he preserved as a burial ground. Let us take these solutions up in the order stated. At the outset it may he confidently said that the cases relied upon as supporting (tie first solution were not cases of voluntary grants by deed. They were, with one exception, all cases under statutory dedications, and the court only considered the effect of an abandonment of the public use to which the property had been devoted by statutory dedication. The cases were: Board of Education v. Edson, 18 Ohio St. 221; Gebhardt v. Reeves, 75 Ill. 301; Zinc Co. v.

City of La Salle, 117 Ill. 411, 8 N. E, 81; Hooker v. Utica, etc., Road Co., 12 Wend. 371; Slegal’s Executors v. Herbine, decided by the supreme court of Pennsylvania, but reported only in 25 Atlantic Reporter, 996. The latter was a case of a qualified or base fee, subject to be defeated by the abandonment of the use.

It was not a mere conveyance subject to a trust for a public use, for the grantor reserved to himself “the free use of the’ premises so granted for an open yard, garden, or grass plot, with the rents, issues, and profits.” The land adjoined a prison wall, and the object of the public was to secure an open space adjoining the walls to prevent escapes.

This object was accomplished by a conveyance which, though it vested the fee, yet was so specific in defining the purpose for which the fee was conveyed, and so clear in reserving to the grantor the use of the premises, subject to the space being kept open, that although the deed contained no express clause of re-entry upon abandonment by the grantee, yet it was clear that the fee was a base or determinable one.

The case is authority only for the proposition that technical words importing an estate determinable upon a condition subsequent are not always essential, if the clear intent of the parties is shown by the whole scope of the instrument to be that the estate shall determine upon the cessation of the use defined. The reservation by the grantor of an interest in the use has long been regarded as a circumstance of great moment in construing such deeds. Rawson v. Uxbridge, 7 Allen, 125. In the case last quoted, Bigelow, C.

J., said: “We believe there is no authoritative sanction for the doctrine that a deed is .to be construed as a grant on a condition subsequent solely for the reason that it contains a clause declaring the purpose for which it is intended the granted premises shall be used, where such purpose will not inure specially to the benefit of the grantor and his assigns, but is in its nature general and public, and where there are no other words indicating an intent that the grant is to be void if the declared purpose is not fulfilled.” The Pennsylvania court has always adhered to the rule that “the mere expression of a purpose will not, of and by itself, debase a fee.” Kirk v.

King, 3 Pa. St. 436; Scheetz v. Fitzwater, 5 Pa. St. 126; First M. E. Church of Columbia v. Old Columbia Public Ground Co., 103 Pa. St. 613. This very principle is announced and adhered to in Slegal’s Case. The defendants here are not holding under a mere common-law dedication. Neither are they holding under a statutory dedication. No- statute operates in their favor, or affects their rights. They hold under a grant by deed. The character of the fee conveyed must be ascertained by a construction of the words of that deed.

If the conveyance is less than an absolute fee simple, it must be because the deed has so limited and qualified the fee conveyed as to make it dependent upon conditions either precedent or subsequent. To determine this, wp may look to the whole deed, and search its four corners, to ascertain the intent of the grantor. If the deed refers to some other paper as containing the boundaries or as defining Dm objects and purpose's of the grant, we may look to this paper thus, by reference, made a part of the grant.

If by apt words the quantity of estate to be conveyed is measured and defined in another instrument, then we may look to that other instrument to see how far the estate is a qualified one. This is all that; we understand by “reading into this deed the act of 1867.” We are, however, to bear in inind that the instrument we are construing is a deed. That it purports on its face to be a grant “absolute” and in fee. If it is less than this, it is because by necessary implication these words are qualified by the reference made to another instrument, to wit, the void act of 1867.

If this is less than a fee absolute, — if this is a deed subject to be defeated by a condition, — that condition must clearly and unambiguously appear from the words of the instrument. “Conditions are not to be raised readily by inference or argument.” Co. Litt, 205b, 219b; 4 Kent, Comm. (6th Ed.) 129-132. On this subject, Mr. Washburn says: “But conditions subsequent, especially when relied on to work a forfeiture, must be created by express terms or clear implication, and are construed strictly.” 2 Washb. Real Prop. (6th Ed.) p. 6.

Starting out with the fact that this is a grant by deed, and that it conveys a fee, we are to inquire whether this fee has been divested or defeated by the occurrence of any event subsequent to the execution of the deed. Conditions subsequent; are, as the term implies,' such as, “when they do happen, defeat an estate already vested.”, What are these conditions which have operated to defeat the estate conveyed? The insistence is that the legal impossibility of the future use of this lot as a burying ground operates to determine the fee.

Does the deed, either expressly or by strong and dear implication, provide that the estate shall be forfeited when this lot shall cease to be used for burial purposes? It is to be observed at the outset that the deed does not in terms provide for any such conilngency. There is no reservation of a right of re-entry, and none of the words are used which, according to the cases, ordinarily imply a condition. These words or forms of expression are usually found where the grantor intended to qualify his conveyance. Among the forms of expression which imply a, condition in a grant, “(lie writers,” says Mr.

Washburn, “give the following: ‘On condition” ‘provided always;’ ‘if it shall so happen” or ‘so that he the grantee pay,’- etc.; * * * and grants made upon any of these terms vest a conditional estate in the grantee.” The same author says: “And it is said other words make a condition, if there be added a conclusion with a clause of re-entry, or, without such clause, if they declare that, if the feoffee does or does not do such

an act, his estate shall cease or be void. * * * But it is said ‘that if one makes a feoffment in fee,’ ‘ea intentione,’ ‘ad effeetuin,’ * * * that the feoffor shall do or not do such

an act, these words do not make the estate conditional, but it is absolute notwithstanding. * * * And yet these words may create a condition if a right’of re-entry is reserved in favor of the grantor in case of failure to carry out the intention thus expressed.” 2 Washb. Real Prop. (5th Ed.) 3. As stated, none of the words which technically imply a conditional estate are found, and there is no clause of re-entry. Yet a condition subsequent may be so strongly and clearly implied, from the whole tenor of the deed as to demand recognition, though not expressed in technical language.

This is the contention upon which counsel for appellee has planted this case. Let us look at the circumstances under which this deed was made.

(1) The lots had been dedicated by a good common-law dedication, as far back as 1802, by the ancestor of plaintiff, as a public burying ground.

(2) In consequence of a trespass, a suit had been brought, the progress of which was embarrassed because the common-law dedication had not operated to pass title.

(5) To obviate this difficulty, the legislature had passed the act of 1867.

(4) This act was absolutely void. Its object was to divest the legal title out of the heirs of John Young, and vest it in the council, and thus turn a mere easement into a legal estate. The act was inoperative because it was not in the power of the legislature to thus divest the title out of the legal owners, or enlarge the estate which 'had been granted. It was not “due process of law,” and was a taking of property without compensation. Le Clerq v. Gallipolis, 7 Ohio, 217; Board of Education v. Edson, 18 Ohio St. 221.

Sc- far ,as the act undertook to vest power in the councils to manage and .preserve such burial grounds, it was likewise inoperative, because !it was applicable only to such burial places as were described in the act, to wit, grounds, the title to which should vest under the act. The whole act was then void.

(5) At the date of the act of 1867 the legal title reserved by John Young was in Charles Young, partly by descent, and partly as a result of conveyances to him by the other heirs of John Young. These lots had been exclusively used for burial purposes, and had been so used for some 65 years. This use seemed likely to be perpetual, and the naked legal title outstanding in Young could not have been regarded as of any considerable value. That the time would ever come when, by abandonment, his right of possession should be restored, was one of these improbable events hardly worth serious consideration.

(6) The “right, title, claim, and interest” of Charles Young consisted in a naked legal title, coupled with a possibility that at some time the public use might become impossible, and his right of possession be restored.

(7) This-act being at least of doubtful value, Charles Young was applied to to convey the title and interest vested in him to the village of Youngstown. As the result of this application, the deed now under consideration, was executed. It was not a gift or donation. He required the payment of $15 as a consideration, and only permitted a delivery of the deed upon the assumption by the city of a debt he owed of that amount.

Looking to the situation as it stood then, this was probably an adequate consideration for the quitclaim he then executed. ^8) He used words fully adequate to convey absolutely any interest or possibility of interest. These words were: “Do by these presents absolutely give, grant, remise, release*, and forever quitclaim.” These words are followed by flu* declaration that the lots so conveyed were “to be under the authority and control of its proper council and municipal authority, in conformity with the act of the legislature of Ohio in that behalf, all such right and title as I, the said O. C.

Young, as one of tin* heirs, and as the assignee and grantee of the other heirs, of John Young, flu* original proprietor of said township and village lands, have, or ought to have, in and to the following lands. * * * To have and to hold the premises aforesaid unto the said grantee, said incorporated village of Youngstown, and its successors, forever.” Construing this dot'd in the light of all the circumstances, giving due and proper weight to all the words of the deed, and bearing in mind the rule that conditions subsequent, when relied upon to work the forfeiture of a vested estate, must be created in expressions or by implication so clear and unambiguous that there can be no donbi as to the intent of the grantor, we reach the conclusion that the declaration that these lots were to be under the control of the municipal authority, “in conformity with the act of the legislature of Ohio in that behalf,” is only declarative of the use, and directory as to the administration, of the property, by the council as trustee.

The power of the council comes from the deed and the general law concerning trusts, and does not spring from the void act of 1867. That the grantor ever contemplated a reverter is not to be pre Burned, in the light of the presence of absolute words of conveyance and quitclaim, and the absence of any provision for a reverter or re-entry. If it had been intended that the conveyance should terminate on an abandonment of the public use, ii. is strange that some language was not used indicative of such purpose.

Too much weight was attached to the circumstance that the city wished the title in order to maintain a suit against a trespasser. Such suit could have been maintained without the title. Too little weight has been given to the fact that the deed was upon a valuable con sidex'ation; to the fact that it was a quitclaim of all right, title, and interest; to the fact of a previous common-law dedication; and to the failure, under such circumstances, to make the title subject to an express right of re-entry.

The minuteness of direction concerning the administration of property conveyed to a public use is insufficient, to take the case out of the rule, supported by an overwhelming weight of authority, that the mere expression of a purpose or particular use to which property is to be appropriated will not make the estate a conditional one. Rawson v. Uxbridge, 7 Allen, 125; Raley v. Umatilla Co., 15 Or. 180, 13 Pac. 890; Packard v. Ames, 16 Gray, 327; Ayer v. Emery, 14 Allen, 67; Brown v. Caldwell, 23 W. Va. 187; First M. E. Church of Columbia v. Old Columbia Public Ground Co., 103 Pa. St. 608; Thornton v.

Trammell, 39 Ga. 202; Sohier v. Trinity Church, 109 Mass. 1; Congregational Soc. v. Stark, 34 Vt. 243; Strong v. Doty, 32 Wis. 381; Farnham v. Thompson. 34 Minn. 330, 26 N. W. 9; Episcopal Mission v. Appleton, 117 Mass. 326; Kerlin v. Campbell, 15 Pa. St. 500; Baldwin v. Atwood, 23 Conn. 367; Graves v. Deterling, 120 N. Y. 447, 24 N. E. 655; Stanley v.

Colt, 5 Wall. 119. “Words more often create a condition in a will, which would not, if used in a deed; as, when, in a deed, an intention is expressed in devising the land that the devisee should or should not do certain things with respect to it, it may be construed as creating a conditional estate in him.” 2 Washb. Real Prop. 3. But, as illustrating the strong leaning of the court against the. forfeiture of estate once vested, the case of Stanley v. Colt, supra, may.be cited.

In that case the devise was to the Second Ecclesiastical Society of Hartford of the real estate of the testator, “to be and to remain to the use and benefit of said society and their successors, forever.” Then followed this: “Provided, that said real estate be not ever hereafter sold or disposed of, but the same may be leased or let, and the annual rents or profits applied to the use and benefit of the society;” and in connection were added numerous directions for the management of the property and guidance of the trustees. The property was sold.

The heir at law sued the purchasers, and contended that the estate was upon condition, and had been forfeited by the sale. The case was elaborately argued, and the unanimous opinion of the court was that the estate was not a conditional one. Mr.

Justice Nelson, spealdng of the purpose of the testator, as expressed in the will, said: “The heirs cannot recover unless they can show that the devise was upon some condition, or that there was some limitation made in the will in their favor: It is not sufficient to show that the lands have been diverted from the use- for which they were devis.ed, or that they had not been enjoyed by the beneficiaries in the particular manner described by the testator; for, where lands have been devised to a charitable use in fee simple, the heir has no more interest in, and no more right to, the lands, than he has when they are devised to an individual in fee simple, either directly or in trust.

The public have an interest in the execution of public charities, and the beneficiaries have an interest; and if the directions contained in the will of the testátor, either as to the manner of enjoyment or the objects who are to-be benefited by his bounty, are departed from, either the public or the beneficiaries, if they are sufficiently certain and have a sufficient vested interest, may have a remedy. * * * That although the law allows testators to' impose conditions subsequent, a breach of which will create a forfeiture, yet the law deems it improbable that the testator will do so, and therefore leans against any construction which would result in such a condition.

Courts will not give it that effect by construction.” The court concluded that the estate was not a conditional one, though there occurred the word “provided,” and the supposed conditions were to be regarded as mere “limitations in trust,” and not as condition's subsequent. Baldwin v. Atwood, supra, is another case much in point, and illustrating the tendency of the courts to construe directions concerning the administration of property conveyed for a particular use' as simply creating a trust cognizable in equity, and not constituting a conditional grant.

The reporter’s headnote is a concise ab-' stract of the case, and is as follows: "Where a deed of land stated, in the premises, that the land was ‘conveyed in trust for the use and purposes hereinafter mentioned,’ and, in the habendum, that the grantees were ‘to have and to hold said land in trust that they shall at all times forever hereafter permit such ministers and teachers belonging to the Methodist Episcopal Church in the United States of America as shall ho duly authorized, from time to time, hy the general conference of the ministers and teachers of said church, or by the annual conference authorized hy the general conference, to preach and expound Clod's holy word in the house or place of worship which has been erected on said land for the use of the members of said church,’ and said deed subsequently prescribed the mode of supplying trustees in the place of the grantees who might die or cease to he members of the church for whose benefit the grant was made, in further trust and, confidence, it was held that such deed was not to be construed as a deed on condition, in which case a breach of it would be followed by a forfeiture of the estate, hut as a deed in trust, cognizable in chancery.

Therefore, where the land described in such deed was afterwards conveyed, with the consent of the cestuis que Tinstent, and sold by the trustees for other purposes, it was held that such disposition did not operate as a forfeiture of the estate to the heirs of the grantor.” In Thornton v.

Trammell, supra, the deed was a conveyance in fee, and contained the following words: "It being expressly understood by ihe parties that the said tract or parcel of land is not to be put to any other use than that of a depot square, and that no business or improvements are to be put on the said tract hut that which is immediately connected with the Western & Atlantic Railroad.” Held, that these words in the deed were words of covenant, and not words of condition, and that the plaintiff's remedy for a, breach Thereof was an action thereon for damages, and not a forfeiture of ihe estate for condition broken.

In Rawson v. Uxbridge, supra, the grant was of land which had been used as a burying ground, in consideration of love and affecxion, “for a burying place forever.” Held, that it was not a grant •on condition subsequent. Hayden v. Stoughton, 5 Pick. 528, and Austin v. Cambridgeport Parish, 21 Pick. 215, were both cases arising on deeds containing Technical words creating a conditional estaie, and are in entire accord with the Massachusetts cases before cited. Hunt v. Beeson, 18 Ind. 380, was a donation of land to a town for the purpose of erecting a tanyard thereon. This was held to create a. condition.

The case was wTonglv decided on the authority of Hayden v. Stoughton, supra, in which case there were technical words of condition, — a fact which the Indiana court undoubtedly overlooked. But if we are wrong in the conclusion that we have announced, That the fee conveyed was not a base fee, and not subject to forfeiture for condition broken, still, the plaintiff ought not to recover, because the forfeiture is excused when the act of the law has prevented the further use of the estate for the public purposes intended by the grantor.

These lots were used for burial purposes so long as such use was permitted hy law. The cessation was the direct result of the law which prohibited a longer use. The council of the village of Youngstown were the trustees holding the legal title and protecting the use. The people of Youngstown wei-2 the beneficiaries under the trust. Tlie council, in their character as trustees, could do no act to defeat the beneficial interest of the public. A court of equity would take cognizance, and restrain any act calculated to defeat the use. Barclay v. Howell’s Lessee, 6 Pet. 498.

As trustees the council could not, without the voluntary acquiescence of the cestui que trust, abandon the use or defeat the estate. Id. The double character of the council is well illustrated in the case of Corporation of the Brick Presbyterian Church v. City of New York, 5 Cow. 538. The city of New York conveyed to the plaintiffs, in 1766, a tract of land. The lessees covenanted to pay forever an annual rent; that a brick church should be built thereon, or the premises used as a cemetery; also, that the premises should never be used for any secular purposes.

The city covenanted that the lessees should forever quietly enjoy, use, and occupy the premises withoht let or hindrance. The city council, in 1823, by ordinance prohibited the use of the premises as a cemetery. The action was for a breach of the covenant. The city justified its ordinance under its charter. The question was whether the covenant for quiet enjoyment had been breached by the city.

The court said: “The principal question, and the only one which is necessary to decide, is whether hy the law of October, 1823, it is per se a violation of the covenant for quiet enjoyment contained in the deed of the 25th of February, 1700, for which the defendants are liable to pay damages. The validity of the by-law is asserted by both parties. We are relieved, therefore, from any inquiry* on that point. The defendants are a corporation, and in that capacity are authorized, by their charter and by-law, to purchase and hold, sell,, and convey real estate in the same manner as individuals.

They are considered a person in law, within the scope of their corporate powers, and are subject to the same liabilities, and entitled to the same remedies, for the violation of contracts, as natura] persons. They are also clothed, as well by their charter as by subsequent statutes of the state, with legislative powers, and, in the capacity of a local legislature, are particularly charged with the care of the public morals and the public health within their jurisdiction. In ascertaining their rights and liabilities as a corporation or as an individual, we must not consider their legislative character.

They had no power, as a party, to malte a contract which should control or embarrass their legislative powers and duties. Their enactments in their legislative capacity are to have the same effect upon their individual acts as upon those of any other persons or the public at large, and no other effect. The liability of the defendants, therefore, upon the covenant In question, must be the same as if it had been entered into by an individual, and the effect of the by-law upon it the same as if that by-law'had been

an act of the state legislature, — is expressly authorized by the legislature; and whether it be their act, or

an act of the local city legislature, makes no difference. Dartmouth College v. Woodward, 4 Wheat. 652. The plaintiffs, then, are entitled to the same remedy as if the premises had been conveyed to them by an individual, under the like conditions and* covenants. This being so, the defendant’s proposition is that, the act of the legislature rendering the covenant unlawful, the covenant itself becomes inoperative. There are but few authorities on this question, and those few are at variance. The case of Brason v. Dean, 3 Mod. 39, decided in 1CS3, was covenant upon p, charter party for the freight of a ship.

The defendant pleaded that th" ship was loaded with French goods prohibited by law to be imported; and, upon demurrer, judgment was given for the plaintiff, for the court were all of opinion that if the thing to be done was lawful at the time when the defendant entered into the covenant, though it was afterwards prohibited bv act of parliament, yet the covenant was binding. Blit in the case of Brewster v. Kitchin, 1 Ld. Raym. 317, 321, A. D. 1698, a different and a nutre rational doctrine Is established. It is there said: ‘For the difference, when

an act of parliament will amount to a repeal of a covenant, and when not, is this: When a man covenants not to do a thing which was lawful for him to do, and

an act of parliament comes after, and compels him to do it, then the act repeals the covenant, and vice versa; but when a man covenants not to do a thing which was unlawful at the time of the covenant, and afterwards

an act makes it lawful, the act does not repeal the covenant,’ In 1 Salk. 198, where the same case is reported, the proposition is thus stated: ‘Where H. covenants not to do

an act or thing which was lawful to do. and

an act of parliament comes after, and compels him to do it, the statute repeals the covenant. So, if II. covenants to do a thing which is lawful, and

an act of parliament comes in and hinders him from doing it, the covenant is repealed; hut if a man covenants not to do a thing which then was unlawful, and

an act comes and makes it lawful to do it, such act of parliament does not. repeal the covenant.’ That such is the correct rule, as between individuals, seems to be admitted by counsel for the plaintiffs. But it. is contended that the rule is not. applicable to a case where the same party makes the covenant, and afterwards makes the legislative act which abrogates the covena.nl,.

There is indeed a seeming inconsistency; but the solution 1ms already been given, viz. that the defendants had no power to limit their legislative discretion by covenant; and they are not estopped from giving this answer.” The case was followed and approved in Coates v. Mayor, etc., 7 Cow. 585. But, as an arm of the civil government, the council were vested with public power, and, in the interest of the public health, might by law prohibit the further use of the property for burial purposes. This power of the city council as a lawmaking body is to be distinguished from its power as trustee under the deed.

The same body had two characters and two functions. In that of trustee, its power proceeded from the deed. The trust thus vested could not be abandoned effectually without concurrence of the cestui que trust. In their character as an arm of the state government, it could not be restrained by the trusts imposed by the deed. Neither could the cestui que trust be said to have voluntarily abandoned the use, when the law stepped in and forbade, by its its penalties, a further use. These principles are as well settled in the law as are those principles relied upon by the plaintiff as producing a reverter. Mr.

Washburn, in speaking of what will excuse a forfeiture, says; “As a condition subsequent ma.y be excused when its performance becomes impossible by the act of God, or by the act of. the party for whose benefit it was created, or is prohibited or prevented by act of the law, so it may be waived by the one who has a right to enforce it.” 2 Washb. Real Prop. 15. The case of Marquis of Anglesea v. Rugeley, 6 Q. B. 107, is in point.

Laud was demised to trustees for the benefit of the poor of a parish, the trustees covenanting to build a workhouse thereon, and to use, occupy, possess, and enjoy the iiremises for the sole use, maintenance, and support of the poor of B., and not to convert the building or the land, or employ the profits thereof, to any oilier use, intent, or purpose whatever. There ivas a proviso for re-entry on breach of the covenant. The house was built, and the land was used for many years as required by the deed. After-wards,

an act, of parliament was passed, and parish R. incorporated, with others, and a union poorhouse provided; to which the act required all paupers should be removed. The heirs of the grantor brought suit in ejectmént, claiming the right of re-entry for breach of the condition. The court held that, “even if the condition was not performed, it appears to us that the nonperformance would in this case be excused, as being by act of law, and involuntary on the part of the lessees.” The court cited Bac. Abr. tit. “Condition;” Com. Dig. tit. “Condition;” and the case of Brewster v. Kitchell, 1 Salk. 198.

The case of Lord Grantley v. Butcher, reported in 51 E. C. L. 115, is to the same effect. We are therefore led to the conclusion that if the title was a base or conditional one, yet the breach of condition relied upon as creating a right of re-entry is excused, because the breach was the act of the law. The judgment should be reversed, and' the cause remanded, with directions to render judgment for the defendants.