witness also testified that this mortgage held | ward was only the general denial. His deby Franklin was for $18,000 or more, (this fense was necessarily the same as that of the mortgage was given in evidence,) and that ward. Whatever would bar the action as to the mortgage held by Uncle Samuel (dece- one of them would defeat it as to the other. dent) was the one securing the note in con- Their interests are one and the same,-to setroversy. And he testified further that in cure and save to the ward, Samuel Steele, Jr., the conversation Samuel (decedent) had said the note, and the mortgage given to secure it. that the amount of these mortgages was in It is conceded that the witness was not excess of the value of the land. That Frank competent to give testimony for her husband. would never be satisfied with less than the When this is admitted there is no further full amount of his mortgage, for the reason room for controversy. The contention is that a part of the money secured by it be- that, though incompetent to testify for her longed to the heirs of the witness' deceased husband, she was a competent witness for his brother, of whom he (Frank) was guardian. co-appellee, though her testimony might inciThat it had been a question whether Ebenezer dentally affect his rights. But, the premises would convey the mortgaged premises with- being false, the conclusion is necessarily out a suit first being commenced against wrong. The testimony of the witness did him, and that he (Samuel) said that, if Ebenezer would convey the property (mortgaged premises) to Frank, he, (Samuel,) in order to help him out of his embarrassment, and save his house and lot in Indianapolis and one other tract of land he owned, aside from that mortgaged, as aforesaid, which contained 160 acres, upon which there was a lien of about $1,000, and if Frank would accept a deed for the 520 acres which was covered by said mortgages in satisfaction of his mortgage, and assume the other of said mortgages thereon, that he would give two bills and the note in controversy, which was secured by the mortgage he held on said land, to Frank's boy, the appellee Samuel, Jr., which would be a fair equivalent of his (Frank's) claim over the value of the land. He also further testified that in that conversation said Samuel (decedent) requested him (the witness) to get Ebenezer to make the conveyance, and asked him (witness) to see Ebenezer (who was then in the West) as soon as he returned to his home in Indianapolis, and ascertain if he (witness) could get him (Ebenezer) to settle, as he (Samuel) desired to avoid litigation. This testimony rendered that objected to material. It is well settled, as counsel for the appellant contend, that a party cannot prove his own declarations, Counsel for the appellees seem to have remade in the absence of his adversary, to sus-garded the appellee Franklin Steele as incomtain his cause of action or defense; but the petent, as they did not offer him as a witness. rule does not extend to transactions. "When He would have been competent to testify for an act is competent, so, also, are declarations his co-appellee, if counsel's contention is corof the persons engaged in its performance, rect. The witness was not competent, and constituting a part of the thing done." Penn- the court erred in allowing her to testify over sylvania Co. v. Weddle, 100 Ind. 141; Creigh-the appellant's objection. ton v. Hoppis, 99 Ind. 369; Baker v. Gausin, 76 Ind. 317. not, and could not in the very nature of things, affect the issues as to Franklin Steele incidentally. Her testimony came with the same directness and force in Franklin Steele's behalf as it did in behalf of the appellee Samuel. If the witness had been the wife of the appellee Samuel Steele, instead of his mother, and called as a witness for the appellee Franklin Steele, and had given the same testimony, there would be as much reason in the contention that it only incidentally affected the rights of the appellee Samuel as there is in the present contention. In the case of Sutherland v. Hankins, 56 Ind. 343, cited by counsel for the appellees, the rights of the parties were different, and where the testimony of a witness might directly affect the rights of one party, and only incidentally those of another. The case of Lynam v. Buckner, 60 Ind. 412, cited by counsel for appellant, is much in point, and decisive of the question under consideration; but without authority it would seem that there ought to be no difference of opinion in the construction to be given to the statute. Section 501, Rev. St. 1881. "When the husband or wife is a party, and not a competent witness in his or her own behalf, the other shall also be excluded." The point is made by counsel for the appellee that the evidence is not in the record. The bill of exceptions is in due form, and shows that it contains all of the evidence the judge who presided at the trial, and was filed within the proper time. The certificate of the clerk, to which our attention is called, cannot control the record. There is nothing in the record or bill of exceptions going to indicate that there was a short-hand reporter connected with the case in any way. We come next to the eighth, ninth, and tenth causes assigned for a new trial, all of which relate to the competency of Mrs. Mar-given in the cause, and is properly signed by tha M. Steele as a witness for the appellees. She was the wife of Franklin Steele, who, as guardian of Samuel Steele, Jr., was a party to the action, and interested in the subjectmatter thereof. His answer was a general denial. His interest was adverse to that of the estate represented by the appellant. It was the same as that of his ward. It was in behalf of his ward. He and his ward answered separately, but the answer by the We have considered all the questions discussed by counsel, and in the order as presented in the argument. Because of the error committed in allowing the witness Martha | law or of common justice. Mere words should M. Steele to testify, the judgment must be reversed. Judgment reversed, with costs. (115 N. Y. 361) PosT et al. v. WEIL et al.1 1. In 1807 the owner of two large farming es- sequent. 2. In construing a clause which imports into an instrument a restriction or imposes an obligation not to do something, reliance should be placed upon the known or supposable aim of the grantor, and technical words may be overlooked where they do not inevitably evidence the intention of the parties. 3. While the presence of a clause giving the right of re-entry for conditions broken is not essential to the creation of a condition subsequent, the absence of such a clause may have its significance in connection with the circumstances of the case and the intent to be fairly presumed there from. Appeal from supreme court, general term, first department. James C. Carter, for appellants. Wm. M. Evarts, for respondents. not be, and have not usually been, deemed sufficient to constitute a condition, and to entail the consequences of forfeiture of an estate, unless, from the proof, such appears to have been the distinct intention of the granties to the instrument. Nor should the fortor, and a necessary understanding of the parmal arrangement of the words influence us wholly in determining what the clause was inserted to accomplish; but in this, as in every other, case, our judgment should be guided by what was the probable intention, viewing the matter in the light of reason. The operation of this clause, as contended for by the appellant, would have been to effect a great injustice; whereas if, as we read it, it was intended as a covenant for the protection of property, no prejudice could accrue to any one, and the purpose in the original grant would be respected and preserved in all its integrity. I am aware of the difficulty which attends the discussion of the legal question involved in this case, and also of the importance which is given to it by the fact that the courts below have held the clause in the deed to be a condition subsequent, while they have enforced the performance of the agree ment of purchase upon other grounds. I shall, therefore, briefly review the facts as they appear in the record before us, in order better to demonstrate that the conclusion to be drawn from them, as to the probable intention of the parties, is that the clause under consideration could only have been inserted as a covenant. The premises in question were formerly part of a large estate lying in the upper portion of New York island, and known as "Monte Alta." That estate and an adjoining estate, known as "Claremont," owned and occupied as farms and country residences by one Michael Hogan. In 1807 he entered into an agreement in writing with GRAY, J. This action arose out of the re- one Jacob Mark for the sale to him of the fusal of the appellants' testator to complete Monte Alta estate for a sum of $16,000, and his agreement to purchase certain lots of land the agreement contained this clause: "Upon in the city of New York. Their sale had the special condition that no part of the land been at public auction, and by its terms an or buildings thereon should ever be used or indisputable title was offered to purchasers. occupied as a tavern." In 1811, four years Weil, the appellants' testator, refused to ac-afterwards, Hogan and wife deeded to Robcept the deed, which was tendered to him, on ert Lenox, Jacob Stout, and John Wells, upthe ground that, by the provisions of a for- on certain trusts, both of said estates; that mer deed, on record, and through which the of Monte Alta, however, subject to the title of the vendors was derived, the prop- agreement with Mark. These facts are diserty of which these lots were part was sub-closed, not by the agreement and deeds ject to the operation of a condition subsequent, themselves, for they do not appear to have to-wit, a condition that no part of the prembeen recorded, and they were not produced, ises should ever be used or occupied as a tav--but from subsequent deeds, which were ern. Whether this objection was sound and made by these grantees, or trustees, of Hogavailable to Weil is the question which is in- an, and the Hogans, in conveyance of the volved in this appeal. properties to others. We are without inforAfter a careful consideration of the facts,mation as to the reason for the non-compleand upon a review of the whole situation, I am unable to find any serious difficulty in reading the clause in question as a covenant, whether we consider it on principles of strict 1Affirming 1 N. Y. Supp. 807. v.22N.E.no.12-10 tion of Hogan's agreement with Mark from the year 1807, when it was made, until the year 1811; and we know nothing concerning the nature of the trusts upon which Lenox and his associates in the trust referred to received and held the properties. A few months after Hogan's conveyance to Lenox | subsequent reserved in the deed to Mark, the and others, Monte Alta was conveyed to vendors answered that the tripartite deed to Mark by a deed, in which were joined, as Mark did not reserve a condition on the grantors, Hogan and wife and the said trus-grant in fee upon which a forfeiture would tees. That deed recited the facts of the inure to the grantor or his heirs in case a agreement of Hogan to sell to Mark, and tavern should at any time be kept on the of the conveyance by Hogan and wife to lands comprising the Monte Alta estate, but Lenox and others as trustees, subject to that a covenant which, running with the land, agreement. It conveyed the fee of the would, while kept alive, prove an equitable premises, free of incumbrances, and with protection against any injury from its breach, covenants of title and warranty, but with in favor of any subsisting interest, entitled the following provision contained in the to insist upon a performance of the covenant. habendum clause, viz.: "Provided always, In that construction of the clause in the and these presents are upon this express con- Mark deed we think the plaintiffs were right; dition, that the aforesaid premises shall not, and, as that conclusion would dispose of the nor shall any part thereof, or any building whole case, no other of the answers which or buildings thereon erected or to be erected, they make in defense of their title need be be at any time hereafter used or occupied as considered. I understand the appellants' a tavern or public house of any kind." The counsel to concede that this appeal must sucHogans' grant was of their right, title, inter-ceed on the sole point that the reservation est, dower, and right of dower, etc., in or to pointed out in the deed created a condition the premises described, while that of Lenox subsequent, and in fact it must be so; for if and others was directly of the premises it created a covenant the union of both of themselves. It is quite probable that the the estates in Joel Post in 1821 would have union of the Hogans as grantors was to per- the natural and legal result of extinguishing fect the record title, which the absence from the covenant. the records of their deed to Lenox and others Although the words of the clause in quesmight affect, and to prevent any question tion are apt to describe a condition subsefrom being raised as to the validity of Mark's quent, reserved by a grantor, we are in no title. In the conveyance subsequently made, wise obliged to take them literally. In the in 1812, of the Claremont estate, the gran- consideration of what, by the use of these tors were the same as in that of Monte Alta, words, was imported into the conveyance, we and the deed was similar in form; but it did are at liberty to affix that meaning to them not contain the clause respecting the use of which the general view of the instrument the premises which I have quoted from the and of the situation of the parties makes habendum clause in the deed of the Monte manifest. Whether they created a condition Alta property. In 1816 a release of that re- or a covenant must depend upon what was strictive clause was, as matter of fact, exe- the intention of the parties, for covenants cuted, and the title was thus freed from any and conditions may be created by the same question which might arise by reason of its words. In order that a covenant shall be existence; but, as this release had not been read from the words of an instrument, they recorded, and was lost at the time of the sale need not be precise nor technical, nor in any and of the tender of the deed by the vendors, particular form. In Bacon's Abridgment and was not discovered and recorded until | ("Covenant," A) it is said: "The law does about two years afterwards, and after the not seem to have appropriated any set form commencement of this suit, it cannot be con- of words which are absolutely necessary to sidered in determining upon the right of be made use of in creating a covenant. In Weil to reject the title when the deed was Sheppard's Touchstone (pages 161, 162) it is tendered to him. He was entitled to rest said: "There need not be any formal words, upon the state of facts, as it was proved to as covenant,' 'promise,' and the like, to be, when he refused to accept the deed. In make a covenant on which to ground an ac1819, Lenox and others executed to Hogan tion of covenant, for a covenant may be had an instrument which, after reciting that they by any other words." Chancellor Kent, in his had settled and accounted with him touching Commentaries, (volume 4, *132,) in speaking the trust property by him conveyed to them of whether a clause in a deed shall be taken in 1811, "as far as the same hath been sold, to create a covenant or a condition, says: appropriated, collected, received, or disposed "Whether the words amount to a condition, of by them," assigned and conveyed to him or a limitation, or a covenant, may be matter whatever remainder there might be of the of construction, depending on the contract. trust property; and Hogan, by the same in- The intention of the party to the instrument, strument, released them from all claims re- when clearly ascertained, is of controlling specting the execution of the trusts. In efficacy, though conditions and limitations 1821, Joel Post became the owner of both of are not readily to be raised by mere inference these estates, and he and his heirs held the and argument." The chancellor sums up same from that time until the sale by the the matter in this language: "The distincheirs, in 1873. These are all the material tions on this subject are extremely subtle and facts in the case. When this purchaser ob- artificial, and the construction of a deed, as jected that the estate was subject to a com- to its operation and effect, will, after all, demon-law forfeiture, because of the condition pend less upon artificial rules than upon the cupied as a tavern." That was the agreement or understanding of both parties as to a restriction upon the use the premises might be put to. Then we are to presume, from what took place in the conveyance afterwards by Hogan to the trustees of both the Monte Alta and Claremont estates, and their subsequent accounting with him, that Hogan had become financially embarrassed, and had sought this equitable mode of settling with his creditors. But when the trustees carried out the agreement which Hogan had made with Mark, and deeded the Monte Alta property to Mark, they incorporated in their deed the restriction which had been agreed to in the contract as to the use of the property. Now, the obvious and only purpose which Hogan could have had in view when the contract was made was to protect the adjacent property, which he then owned, from being injured by the vicinity of an undesirable structure or business. I think we all will agree that the presumption here, as in every other case where a restriction is inserted in a deed against undesirable struct application of good sense and sound equity | the circumstances of the case and the intent to the object and spirit of the contract in a to be fairly presumed therefrom. given case." Lord MANSFIELD said (Lant Now, the first significant feature of this v. Norris, 1 Burrows, 290) that no particular case, which may be referred to in determintechnical words are requisite towards making ing the intention, is the agreement between a covenant; and Lord ELDON said (Church v. Hogan and Mark. That was the agreement Brown, 15 Ves. 264) that covenants may be by which the one was to sell and the other to for almost anything. That they have fre- buy Monte Alta. In it was inserted a "spequently been inserted in conveyances to main- cial condition that no part of the land or tain the eligible character of property adjoin-buildings thereon should ever be used or ocing the parcel conveyed, by protecting it against the creation of nuisances or of offensive structures, or against the carrying on of an injurious or offensive trade, is a familiar fact. It seems unnecessary to cite from the opinions of judges or of the writers upon this subject of jurisprudence, for there is a general consensus in opinion among them that the question is one always open to the determination most consistent with the reason and the sense of the thing. Reference, whether it be to the earlier or later reports, fails to aid us in deducing from them a defined principle of construction. Many, if not most, of the early cases, have been those turning upon the construction of clauses in leases; and in each case, so far as the examination I have been able to give enables me to say, the court construed the clause as the circumstances and facts of that particular case seemed to demand. I would not pretend to reconcile all the decisions which have been made upon the subject; but I readily extract the principle that technical words may be overlooked where they do not inevitably evidence the intention of parties. Iures or trades, is that the insertion was for think the tendency of the law has been to assume towards this vexed question, as towards others which have come down from the days of the old common law, a more scientific attitude. So, if the only reason for construing a clause is in the technical words which have been used, the court may disregard them in performing the office of interpretation. If we can construe this clause as an obligation to abstain from doing the thing described, which, by acceptance of the deed, became binding upon the grantee as an agreement, enforceable in behalf of any interest entitled to invoke its protection, I think we are in conscience bound to give that construction, and thereby place ourselves in accord with that inclination of the law, which regards with disfavor conditions involving forfeiture of estates. In this connection it may be noted that there is no clause in the deed giving the right to re-enter for conditions broken. While the presence of such a clause is not essential to the creation of a condition subsequent, by which an estate may be defeated at the exercise of an election by the grantor or his heirs to re-enter, yet its absence, to that extent, frees still more the case from the difficulty of giving a more benignant construction to the proviso clause. The presence of of a re-entry clause might make certain that which, in its absence, is left open to construction. The absence of such a clause may have its significance, in connection with the purpose of protecting rights which the grantor had in adjacent property. In this case the clause obviously was for the benefit of the Claremont estate. This view is reinforced by the fact that when the trustees came to sell the Claremont property no such condition was inserted in that deed. When the trustees disposed of the Monte Alta property, Hogan had ceased to have any interest in it, other than in having it bring all that could be obtained from a sale of the properties, in order to free himself from his embarrassments. When the legal estate became vested in the trustees their duty was to make the sales yield all that was possible. They had no interest to subserve by conveying the property subject to any condition subsequent. The effect, however, of a covenant in the deed to Mark covering a restriction like that in the agreement of the parties would be to enhance the market value of the other property by preserving to the whole an eligible character. An intention that the restrictive clause should operate as a condition subsequent seems hardly supposable under the circumstances. Except we take the words literally, no reason suggests itself for that construction. Hogan had no legal interest in the property at the time of the conveyance. What interest could he then have which his trustees might be supposed to subserve, or which he might be supposed to insist upon, in securing a reverter of the one Monte Alta estate to himself or his heirs? None is ap-| convey upon express conditions. In that parent; and I say, therefore, that the reason case it was sought to enjoin the defendant and the sense of the thing indicate that the clause is to be read as a covenant. from maintaining a fence upon a strip of land dividing its depot premises from the plaintiff's hotel premises, and from thus blocking up a passage-way between the hotel and depot. The land upon which defendant built the fence was conveyed by deeds which contained the following provisions: "This conveyance is upon the express condition that the said railroad company, its successors or assigns, shall at all times maintain an open 6 In construing a clause which imports into an instrument a restriction, or imposes an obligation not to do something, reliance should be placed upon the known or supposable aim of the grantor, or upon the sense of his act. So long as technical words are to be deemed unavailing to control interpretation, we should disregard them, and have resort to what may furnish some evidence of the un-ing into the premises hereby conveyed oppoderlying intention. In speaking of the sense site to the Exchange Hotel, so called, [being of the act, I refer as well to the apparent ob- the plaintiff's premises,] adjacent to the ject to be attained as to the mode resorted to premises hereby conveyed," etc. The granin order to effect it. What reason have we tors in these deeds had acquired title under a to justify us in attaching to these particular will to the hotel property, and their testator words so technical a meaning, and to freight had been the grantor of the property used by them with such serious consequences, when the defendant for its depot. The defendant it appears that no such interest exists in the denied the right of plaintiff, to whom the hograntors as demands a reservation of such a tel property had been leased by the devisees, condition, or makes it in the slightest degree to maintain the action, alleging that the lanimportant? Where does the necessity exist guage of the provision in the deeds created a for such a technical construction? Here the condition subsequent, which could only be grantors of the legal title had no interest in taken advantage of by the grantors and their creating a reverter to themselves, for they heirs. The plaintiff claimed that it must be were mere trustees. Their grantor, what-construed as a covenant. Judge PECKHAM, ever his beneficial interest in the trust, had delivering the opinion of the court, said: no apparent interest to subserve, which is "We incline to the construction contended pointed out or which is discoverable, in for by the plaintiff. The fact that the deed planning a reverter of the estate for a uses the language upon condition,' when rebreach of condition. There was no interest ferring to the conveyance by the grantors, is which was not adequately met by the crea- not conclusive that the intention was to cretion of a covenant or limitation in trust ate an estate strictly upon condition. * * that the property should not be used for Construction may frequently be aided by refthe one certain purpose mentioned. I think erence to all the circumstances surrounding it more agreeable to reason, as it is to the the parties at the time of the execution of the conscience, and it well comports with the deeds, because the court is thus enabled to character and origin of this deed,-if we be placed exactly in their situation, and to say that the office of this clause was simply view the case in the light of such surroundto restrain the generality of the preceding ings." After referring to the facts, he conclause. See Chapin v. Harris, 8 Allen, 594. tinues: "All these facts would lead one to The words "provided always, and these the unhesitating conclusion that the language presents are upon this express condition," used in those deeds in 1857 was for the beneseem to me to serve the purpose of restrict-fit of the hotel property, and was not meant ing that use of the premises which was, of course, general and unrestricted under the grant. They do not import any new and separate idea, and I think the rule is a safe one, that words alone should not be deemed to create a condition subsequent and to be capable of importing possible future forfeiture of estate, except where they do introduce some new clause the sense of which is not referable to, and in qualification of, some preceding clause, and evidences some part of the consideration for the grant of the property by the imposition of an obligation upon the grantee. Looking at these words, may we say, as they stand in the deed, that they are conditional in sense, when they in reality serve to qualify the generality of the grant in the language which precedes them? I think we cannot, in reason. In Avery v. Railroad Co., 106 N. Y. 142, 12 N. E. Rep. 619, we have a late exposition of the views of this court upon the effect to be given to language in deeds purporting to to create a condition subsequent. |