Weston J.

delivered the opinion of the Court.

It appears from the pleadings that the title of the demandant arises from a deed made by the tenants to him, on the 19th of June 1819, conveying the premises in fee and in mortgage. It further appears, that there has been no breach of the condition of that deed, on the part of die tenants. The demandant, therefore, has no right to the possession of the land for condition broken j but as the owner of the legal estate, he has a right to recover it at common law; unless, from the deed itself, or from some other instrument in writing executed by him, it has been agreed that the tenants shall retain the possession, until there has been a breach of the condition. And we are of opinion that, from die condition of the bond executed by the demand-ant to the tenants, on the day the mortgage deed was given, and by that of the second of March following, it does appear, by necessary Implication, that the tenants were to keep possession of the premises, until they failed to perform the condition. By the condition of the first bond, the tenants were to have the privilege of drawing water, to work the fulling-mill and carding-machine, as long as the same should he occupied for the purpose of carding and manufacturing wool; the demandant was to keep the dam and flumes in such repair, as to be reasonably tight to save the water; they were to have the privilege of putting down an additional flume; he was not to lease or convey any other privilege near his mills, for the same purposes, or carry on the same business himself, while the premises in question were used for the carding and manufacturing of wool •, and the tenants were to have the privilege, at all times, to draw a reasonable quantity of water, using it prudently, into their full stocks, to enable them to rinse cloth, and fill their dye kettles, tubs and vats.

By the condition of the bond executed by the demandant to the tenants on the second of March 1820, he was to make certain wheels, and to perform other services, in and about the premises, for their *93use, and was to have the use and improvement of the story over the carding-machine, for one year from the month of June following, for certain purposes.

From these instruments, it is apparent that it was the understanding and agreement of the parties, that the tenants should occupy the premises, so long as they continued to fulfil the condition of their deed of mortgage. The stipulations of the demandant imply this ; and it is impossible to give effect to them, unless they are thus understood. If he is permitted. to take possession, the design of their purchase and of his agreement, is altogether defeated. It is very clear that the premises were intended to be used for the purposes, for which they were originally erected. They were thus to be used by the tenants, to whom certain facilities in aid of the object were secured, so long as the business should be pursued. The demandant was not to engage in the same employment himself, or to suffer any other person to do so, in or about his mills. Either the tenants or their assigns must continue the business of carding and manufacturing wool; or it cannot be pursued at all, without a forfeiture of the de-mandant’s bond.

The stipulation, which the demandant made for the special enjoyment of a part of the premises for a definite period, was entirely unnecessary, if he could at any time command the the whole. There is no objection to the evidence by which this agreement is proved ; it is in writing, and signed by the party to be charged. It is impossible to mistake the intention of the parties. That intention is a lawful one. And yet by this action, the demandant claims to resume the possession of the premises, while the condition in the tenant’s deed remains unbroken ; and thus defeat their object in purchasing; throw them out of the business, in which they had engaged in the faith of his agreement; and render useless and unproductive the expense, they have been induced to incur.

In the case of Newall v. Wright, 3 Mass. 138, Parsons C. J. delivering the opinion of the court, after stating it as a general principle of law that the mortgagee may demand and recover possession before condition broken, says, “ But there may be an agreement that the mortgagor shall retain the possession, until the condition be *94broken, which shall bind the mortgagee. And upon the same principle, we are satisfied that the mortgagee, if he consent to take a lease from the mortgagor, and covenant to pay him rent until the condition be broken, shall be bound by his covenant, and shall not be admitted to set up his mortgage against the lease.” The agreement in that case, that the mortgagee should not take possession under his mortgage, although not express, was necessarily implied by his becoming lessee of the premises, and engaging to pay rent. There is the same implication in the case before us; and the de-mandant cannot be admitted to set up his mortgage to defeat stipulations, which he has bound himself to perform.

The verdict is set aside; the replication to the third plea in bar is adjudged bad ; and this plea being a good and sufficient bar, judgment is to be rendered for the tenants.