By the Court,
Brown, J.
This is an action of ejectment for lands in Greenburgh, county of Westchester, and comes before this court on a motion to set aside the report of Albert Lockwood, the referee, Avho found the defendants not guilty of withholding the lands mentioned in the pleadings. I propose to examine but one of the questions discussed upon the argument: and that is the legal effect of the plaintiff’s deed to the defendants, considered in connection with the CA'idence given upon the hearing. This deed bears date November the 16th, 1841, and grants to the defendants the premises, in fee simple, with a reservation of the wood and timber; habendum to the grantee, for the purpose of the extension of the New-York and Harlem railroad, as directed in the several acts of the legislature of the state of New-York in relation thereto, and with a condition in these words : “ This conveyance to cease and be void, unless the said railroad is completed through the above described piece of land, on or before the first day of January, A. D. 1843.” The *442deed also contained a covenant by the defendants, to make and maintain, at all times, at its own expense, the partition fences between the lands conveyed and the adjoining lands of the plaintiff. The company entered under the deed; but did not comply with the condition, and did not complete the road over tho premises in dispute, until the 25th September, 1844. The- action was commenced on the 22d October, 1846. No attempt was made by the plaintiff to enter for the condition broken, or to assert his right to the possession, until the 9th of September, 1846, when he gave the company written notice to quit, and demanded the possession. The proof showed that the road ivas completed and the cars put in operation to the village of White Plains, a place north of, and beyond the lands claimed, in tho autumn of 1844. In the intermediate period, the plaintiff saw the defendants proceed at great expense with the construction of the road, without objection, or any intimation of his design to insist-upon the breach of the condition. He used the road himself, and occasionally traveled in the company’s cars, over tho premises in dispute, up to the time of the commencement of bis action. °It was also in evidence that at the time of the hearing before the referee, the track had been finished, at the expense of $20,000 a mile,- and the company’s cars were running to Dover Plains, a distance of some 52 miles north of White Plains. The facts mentioned were not controverted, and taken in connection ■with the condition in the deed, exhibit the grounds upon which the referee decided against the claim of the plaintiff.
The deed contains one of those conditions known to the law as conditions subsequent. Its effect was to vest the fee simple of the estate in the defendants, subject to be defeated by their omission td complete the road over the lands granted, -within the time specified. The neglect to perform the condition did not, ipso facto, determine the estate; but only exposed it to be defeated and determined at the election of the grantor and his heirs, to be signified by some act equivalent to a re-entry at the common law. “ Where a condition must be performed before •the estate can commence, it is called a condition precedent.- But when tho effect of the condition is, cither to enlarge or to defeat *443an estate already created, it is then called a condition subsequent.” (Cruise's Dig. tit. 13, ch. 1, § 6.) “A diversitie is to be understood between conditions that are to create an estate, and conditions that are to destroy an estate: for here it appeareth, that the condition that is to create an estate, is to be performed by construction of law, as neerc the condition as may be, and according to the entent and meaning of the condition, albeit the letter and words of the condition can not be performed: but otherwise it is of a condition that destroyeth an estate, for that is to be taken strictly, unless it be in certainc spcciall cases.” (1 Institute, Go. Litt. '219, b.) It is of consequence to bear in mind the distinction between conditions subsequent annexed to an estate in fee, and the like conditions annexed to an estate for years. In the former, the only mode by which advantage can be taken of a breach is by entry, or if that should be impossible, by claim ; because the solemnity of a feoffment with livery of seisin, at the common law, could only be defeated by an act of equal notoriety. (1 Inst. 218, a.) Where an estate for years determines, upon a breach of condition, no entry is necessary ; because an estate for years did not pass by livery of seisin, which, Mr. Blaclcstone. says, was the solemnity appropriated only to the conveyance of a freehold. Whenever, therefore, an estate for years was dependent upon the performance of a condition subsequent, the moment the condition was broken, the estate of the lessee terminated without an entry. A result, as we have seen, which did not follow where the condition was annexed to an estate in fee. “ Words of limitation,” says Chancellor Kent, (4 Kents Com. 126,) “ mark the period which determines the estate: but words of condition render the estate liable to be defeated in the intermediate time, if the event expressed in the condition arise before the determination of the estate, or completion of the period prescribed by the limitation. The one specifies the utmost time of continuance, and the other marks some évent, which, if it takes place in the course of that time, will defeat the estate. The material distinction between a condition and a limitation consists in this, that a condition does not defeat the estate, although it be broken, until entry by the *444grantor or his heirs.” • In Smith v. The Saratoga County Mutual Fire Ins. Co. (3 Hill, 508,) to which we are referred by the counsel for the plaintiff, Mr. Justice Bronson notices the distinction. “ between cases where the landlord may put an end to the lease by an entry for the wrong done, and those where the wrong terminates the lease without any act on the part of the landlord.” And he quotes numerous adjudged cases in confirmation of his opinion. In the one class the estate is voidable, and continues in the lessee, until the lessor evinces his intention to insist upon the forfeiture, and resume his former estate. And in the other class, the estate and interest of the lessee who has done the wrong, is absolutely void. We have already seen the reason why a re-entry was necessary to terminate an estate of freehold' dependent upon a condition subsequent, and not necessary to terminate an estate for years, dependent upon a like condition; and that it was a consequence of the manner in which estates were passed at the common law. I am thus particular to notice the distinction between estates voidable, and estates absolutely void, not for the purpose of showing that the plaintiff in this case was bound to make an actual re-entry, before he could maintain his action, but with the sole object of exhibiting the real character of the estate which the defendant had under the deed.
“ Where the estate has, ipso facto, ceased, by operation of the condition, it can not be revived without a new grant; but a voidable estate may be confirmed, and the condition dispensed 2b.” “ Conditions subsequent are not favored in law, and are strued strictly, because they tend to destroy estates ; and the rigorous execution of them is a species of summum jus, and in many cases hardly reconcilable with conscience.” (4 Kent’s Com. 128, 129.) “In cases of conditions subsequent, it has been established by precedents, that where t'he estate is not given over, they shall be considered as only in terrorem. This shows how odious such conditions are: for, in reason and argument, the distinction between being or not being limited over, is very nice; and a clause can carry very little terror, which is adjudged to be of no effect.” “If the estate is given over, such *445a condition can not be got over.” {Per Lord Mansfield in Long v. Dennis, 4 Burr. 2052.) “To construe this acceptance of rent due since the condition broken, a waiver of the forfeiture, is to construe it according to the intention of the parties. Upon the breach of the condition, the landlord had a right to enter. He had full notice of the breach, and does not take advantage of it; but accepts rent subsequently accrued. That shows he meant the lease should continue. Cases of forfeiture are not favored in law; and where the forfeiture is once waived, the court will not assist it.” (Per Lord, Mansfield in Goodright v. Davids, Cowper, 803.) In Clark v. Jones, (1 Denio, 516,) Chief Justice Bronson, upon authority, carried the rule still further. He denied the right of a tenant to take advantage of his own wrong and terminate the lease by an omission to pay the rent. “ Where,” says he, “ there is a condition in a lease that upon the neglect of the tenant to pay rent, or for some other default or improper conduct, on his part, the lease shall cease and determine, or shall become null and void, the .neglect to pay rent, or the like, does not render the • lease absolutely void. It is void as to the estate of the lessee, who has done the wrong. But as to the lessor, the lease is voidable only. He may dispense with the forfeiture, and affirm the continuance of the lease.”
Did the grantor in the case under consideration manifest an intention not to insist upon a breach of the condition and dispense with the forfeiture ? Was his conduct such as to induce and encourage the company to expend its money and proceed with the construction of the road after he knew that the forfeiture had occurred 1 The referee found that he did. The facts which are the evidence of this design, are not in dispute; and leave no room for doubt as to their real tendency. He made no effort to assert his right to the estate, or to do any act equivalent to an entry at the common law, until two years after the forfeiture had occurred. During this time he saw the company making large expenditures over the premises in question, and extending the road at an enormous expense towards its northern terminus". He traveled oyer the road himself and well knew *446that when the line was broken and interrupted by the dispossession of the company from the prepiises claimed, the entire road would be in a measure useless, until the disjointed parts should be re-united by some new connection. He gave the company notice to perform the covenant in the deed in regard to the division fences, and the covenant was executed, and the fences erected accordingly, about a year before the suit was commenced; thus recognizing, that in respect to the premises, himself and the company were the owners of adjoining lands. Ho stronger evidence could be exhibited—short of the execution and delivery of a new deed—of a design to waive the forfeiture, and confirm the grant, than the facts to which I have adverted; and we but follow in the path of precedent decisions in like cases, when we determine that the plaintiff ought not to recover.
[Dutchess General Term,
January 5, 1852.
The motion to set aside the report, is denied.
Morse, Barculo and Brown, Justices.]