The opinion of the Court was by
The assignee of the bond has accepted a deed as provided for in the condition. The breach he now relies upon is, that he has not been permitted quietly to enjoy, as the condition requires. The subject matter of the purchase by Sawtell was, the defendant’s “ right, title and interest in and to the lath machine and the water therefor, which is under saw mills number the and four at Union mills in Calais, for so long a time, as these mills shall stand.” This, the condition, in which the subject matter is twice described in the same way, requires he should release and convey. It further provides, that before the payments stipulated and the execution of the deed, the defendant “ shall, in the mean time, suffer and permit the said Sawtell, his executors, administrators and assigns, peaceably to occupy and improve said machine.” This must be understood to mean the defendant’s interest therein, which was what the defendant undertook to convey. This part of the condition must be governed and restrained by the previous recitals, which set forth the subject matter of the instrument. Lord Arlington v. Merricke, 2 Saund. 211, and note 5; Barker v. Parker, 1 T. R . 287; Pearsall v. Summersett, 4 Taunt. 593.
Upon this construction, which looking at the whole condition, is according to its legal effect, it appeared at the trial that the assignee was permitted to enjoy all the right, title and interest the defendant had in the subject matter, when the bond was executed.
Nonsuit confirmed.