This is a real action to recover land, which the demandant formerly owned, and which he conveyed by deed to one Elizabeth Cobleigh, from whom the tenant claims, subject to a condition, that the deed should be void, whenever the grantee, her heirs or assigns, should neglect or refuse to support a fence around said granted land.
It appears that the deed was made in 1821, that the grantor was then the owner of a tract of between fourteen and fifteen acres, out of which the grant of half an acre was made. It appears by the description, that the granted premises bounded on the grantor’s other land, on two or three sides thereof. The condition, in connection with a reservation, is thus expressed : “ Reserving, however, to myself the privilege of a bridle road in front of the house, and not to be at any expense in supporting a fence around said land. Whenever she, the said Elizabeth, or her aforesaids, shall neglect or refuse to support said fence, then this deed to be void.”
Afterwards, and before the removal of the fence, Merrifield, the grantor, and present demandant, conveyed away the whore of his estate and interest in the fourteen acres, and the same came by mesne conveyances to Henry Cobleigh, the son of Elizabeth, who lived in the house standing on the granted premises, being the half acre, with his mother.
It further appeared, that in March, 1835, the said Henry Cobleigh mortgaged the fourteen acres to Merrifield, the demandant ; but whether this was before or after he removed the fence was left doubtful on the evidence. The demandant entered to foreclose this mortgage, at the same time that he entered for breach of the condition in his own deed, on the 16th of January, 1847. The question is whether the demandant can recover the land, on the ground of such forfeiture.
The jury were instructed, that this condition in the demand-ant’s deed to Elizabeth Cobleigh was inserted for the benefit of the grantor, as owner of the larger lot, out of which the smaller was granted; that it vested in him only so long as he remained such owner of the larger lot; that if it was not merely personal to himself, it passed to his grantees of the fourteen acres, and came by mesne conveyances to Henry Cobleigh ; that if he removed the fence, he had a right to do so, and it operated as a waiver or extinguishment of the condition. They were also directed, that it was immaterial whether this fence was removed before or after his mortgage to Merrifield, because until the demandant entered for breach of the condition of his own deed, he was a mortgagee out of possession, holding the estate merely as a pledge, and because he did not profess to claim the benefit of such condition of forfeiture in his capacity as such mortgagee. If this direction was right, the verdict for the defendant must stand.
In construing this part of a deed, as in construing every other written instrument, the court will regard the obvious intent and purpose of the parties, and so construe it as best to promote and accomplish that purpose. Doe v. Bancks, 4 B. & Ald. 401. The condition in the present case is not very technically expressed, but it seems obvious that it was designed to benefit the grantor, as the owner of the land out of which it was carved. He first reserves a bridle road, which is of no other importance here than as it expresses the same purpose, a privilege in the use of his other land; he then reserves the privilege not to be at any expense in supporting a fence around said land; he could be at no expense from this cause, either in maintaining a division fence, according to a duty imposed by law, or in fencing his own grounds for his own use, except as such proprietor of the- reserved land. Then comes the condition, as follows : “ Whenever the said Elizabeth Cobleigh, or her heirs or assigns, shall neglect or refuse to support said fence, this deed to be void.” The words “ said fence ” connect the condition with the reservation, and make it manifest that the condition was inserted, to secure the privilege expressed in the reservation, to be exempt from expense in the support of such a fence. So long as he is entirely exempted from any possibility of incurring such expense, the condition is substantially kept.
If this was a condition which vested in the demandant, as owner of the land reserved, and not merely personal, it then was attached to the land, and came by mesne conveyances to Henry Cobleigh, and the removal of the fence by him, being such owner, was an extinguishment or waiver of the condition. Once rightfully waived, or extinguished, the condition was determined, and could not be revived.
But there is another view, which it appears to us is decisive. Such a condition, when relied on to work a forfeiture
Both these terms, in connection with the subject matter, imply some previous demand, notice, or request, if the fence has decayed or been removed, to replace it, and that the defendant had either “refused” in terms to do the act required, or “neglected,” that is, after notice or request, and after a reasonable time allowed for that purpose, had failed to do it. In the present case, it appears that no such demand or request was made, or notice given. There was therefore no breach of condition, which defeated the estate, at the time of the entry of the demandant, and this action cannot be maintained.