(8) He used words fully adequate to convey absolutely any interest or possibility of interest. These words were: "Do by these presents absolutely give, grant, remise, release, and forever quitclaim." These words are followed by the declaration that the lots so conveyed were "to be under the authority and control of its proper council and municipal authority, in conformity with the act of the legislature of Ohio in that behalf, all such right and title as I, the said C. C. Young, as one of the heirs, and as the assignee and grantee of the other heirs, of John Young, the original proprietor of said township and village lands, have, or ought to have, in and to the following lands. To have and to hold the premises aforesaid unto the said grantee, said incorporated village of Youngstown, and its successors, forever."

Construing this deed in the light of all the circumstances, giving due and proper weight to all the words of the deed, and bearing in mind the rule that conditions subsequent, when relied upon to work the forfeiture of a vested estate, must be created in expressions or by implication so clear and unambiguous that there can be no doubt as to the intent of the grantor, we reach the conclusion that the dec laration that these lots were to be under the control of the municipal authority, "in conformity with the act of the legislature of Ohio in that behalf," is only declarative of the use, and directory as to the administration, of the property, by the council as trustee. The power of the council comes from the deed and the general law con cerning trusts, and does not spring from the void act of 1867.

That the grantor ever contemplated a reverter is not to be pre sumed, in the light of the presence of absolute words of conveyance and quitclaim, and the absence of any provision for a reverter or re-entry. If it had been intended that the conveyance should terminate on an abandonment of the public use, it is strange that some language was not used indicative of such purpose. Too much weight was attached to the circumstance that the city wished the title in order to maintain a suit against a trespasser. Such suit could have been maintained without the title. Too little weight has been given to the fact that the deed was upon a valuable consideration; to the fact that it was a quitclaim of all right, title, and interest; to the fact of a previous common-law dedication; and to the failure, under such circumstances, to make the title subject to an express right of re-entry. The minuteness of direction concerning the administration of property conveyed to a public use is insufficient to take the case out of the rule, supported by an overwhelming weight of authority, that the mere expression of a purpose or particular use to which property is to be appropriated will not make the estate a conditional one. Rawson v. Uxbridge, 7 Allen, 125; Raley V. Umatilla Co., 15 Or. 180, 13 Pac. 890; Packard v. Ames, 16 Gray, 327; Ayer v. Emery, 14 Allen, 67; Brown v. Caldwell, 23 W. Va. 187; First M. E. Church of Columbia v. Old Columbia Public Ground Co., 103 Pa. St. 608; Thornton v. Trammell, 39 Ga. 202; Sohier v. Trinity Church, 109 Mass. 1; Congregational Soc. v. Stark, 34 Vt. 243; Strong v. Doty, 32 Wis. 381; Farnham v. Thompson, 34 Minn. 330, 26 N. W. 9; Episcopal Mission v. Appleton, 117 Mass.

326; Kerlin v. Campbell, 15 Pa. St. 500; Baldwin v. Atwood, 23 Conn. 367; Graves v. Deterling, 120 N. Y. 447, 24 N. E. 655; Stanley v. Colt, 5 Wall. 119.

"Words more often create a condition in a will, which would not, if used in a deed; as, when, in a deed, an intention is expressed in devising the land that the devisee should or should not do certain things with respect to it, it may be construed as creating a conditional estate in him." 2 Washb. Real Prop. 3.

But, as illustrating the strong leaning of the court against the forfeiture of estate once vested, the case of Stanley v. Colt, supra, may be cited. In that case the devise was to the Second Ecclesiastical Society of Hartford of the real estate of the testator, "to be and to remain to the use and benefit of said society and their successors, forever." Then followed this: "Provided, that said real estate be not ever hereafter sold or disposed of, but the same may be leased or let, and the annual rents or profits applied to the use and benefit of the society;" and in connection were added numerous directions for the management of the property and guidance of the trustees. The property was sold. The heir at law sued the purchasers, and contended that the estate was upon condition, and had been forfeited by the sale. The case was elaborately argued, and the unanimous opinion of the court was that the estate was not a conditional one. Mr. Justice Nelson, speaking of the purpose of the testator, as expressed in the will, said:

"The heirs cannot recover unless they can show that the devise was upon some condition, or that there was some limitation made in the will in their favor. It is not sufficient to show that the lands have been diverted from the use for which they were devised, or that they had not been enjoyed by the beneficiaries in the particular manner described by the testator; for, where lands have been devised to a charitable use in fee simple, the heir has no more interest in, and no more right to, the lands, than he has when they are devised to an individual in fee simple, either directly or in trust. The public have an interest in the execution of public charities, and the beneficiaries have an interest; and if the directions contained in the will of the testator, either as to the manner of enjoyment or the objects who are to be benefited by his bounty, are departed from, either the public or the beneficiaries, if they are sufficiently certain and have a sufficient vested interest, may have a remedy. That although the law allows testators to impose conditions subsequent, a breach of which will create a forfeiture, yet the law deems it improbable that the testator will do so, and therefore leans against any construction which would result in such a condition. Courts will not give it that effect by construction."

** *

The court concluded that the estate was not a conditional one, though there occurred the word "provided," and the supposed conditions were to be regarded as mere "limitations in trust," and not as conditions subsequent.

Baldwin v. Atwood, supra, is another case much in point, and illustrating the tendency of the courts to construe directions concerning the administration of property conveyed for a particular use as simply creating a trust cognizable in equity, and not constituting a conditional grant. The reporter's headnote is a concise abstract of the case, and is as follows:

"Where a deed of land stated, in the premises, that the land was 'conveyed in trust for the use and purposes hereinafter mentioned,' and, in the habendum, that the grantees were 'to have and to hold said land in trust that they shall at all times forever hereafter permit such ministers and teachers belonging to the Methodist Episcopal Church in the United States of America as shall be duly authorized, from time to time, by the general conference of the ministers and teachers of said church, or by the annual conference authorized by the general conference, to preach and expound God's holy word in the house or place of worship which has been erected on said land for the use of the members of said church,' and said deed subsequently prescribed the mode of supplying trustees in the place of the grantees who might die or cease to be members of the church for whose benefit the grant was made, in further trust and. confidence, it was held that such deed was not to be construed as a deed on condition, in which case a breach of it would be followed by a forfeiture of the estate, but as a deed in trust, cognizable in chancery. Therefore, where the land described in such deed was afterwards conveyed, with the consent of the cestuis que trustent, and sold by the trustees for other purposes, it was held that such disposition did not operate as a forfeiture of the estate to the heirs of the grantor."

In Thornton v. Trammell, supra, the deed was a conveyance in fee, and contained the following words:

"It being expressly understood by the parties that the said tract or parcel of land is not to be put to any other use than that of a depot square, and that no business or improvements are to be put on the said tract but that which is immediately connected with the Western & Atlantic Railroad."

Held, that these words in the deed were words of covenant, and not words of condition, and that the plaintiff's remedy for a breach thereof was an action thereon for damages, and not a forfeiture of the estate for condition broken.

In Rawson v. Uxbridge, supra, the grant was of land which had been used as a burying ground, in consideration of love and affection, "for a burying place forever." Held, that it was not a grant

on condition subsequent.

Hayden v. Stoughton, 5 Pick. 528, and Austin v. Cambridgeport Parish, 21 Pick. 215, were both cases arising on deeds containing technical words creating a conditional estate, and are in entire accord with the Massachusetts cases before cited.

Hunt v. Beeson, 18 Ind. 380, was a donation of land to a town for the purpose of erecting a tanyard thereon. This was held to create a condition. The case was wrongly decided on the authority of Hayden v. Stoughton, supra, in which case there were technical words of condition, a fact which the Indiana court undoubtedly overlooked.

But if we are wrong in the conclusion that we have announced, that the fee conveyed was not a base fee, and not subject to forfeiture for condition broken, still, the plaintiff ought not to recover, because the forfeiture is excused when the act of the law has prevented the further use of the estate for the public purposes intended by the grantor.

These lots were used for burial purposes so long as such use was permitted by law. The cessation was the direct result of the law which prohibited a longer use. The council of the village of Youngstown were the trustees holding the legal title and protect

ing the use. The people of Youngstown were the beneficiaries under the trust. The council, in their character as trustees, could do no act to defeat the beneficial interest of the public. A court of equity would take cognizance, and restrain any act calculated to defeat the use. Barclay v. Howell's Lessee, 6 Pet. 498. As trustees the council could not, without the voluntary acquiescence of the cestui que trust, abandon the use or defeat the estate. Id.

The double character of the council is well illustrated in the case of Corporation of the Brick Presbyterian Church v. City of New York, 5 Cow. 538. The city of New York conveyed to the plaintiffs, in 1766, a tract of land. The lessees covenanted to pay forever an annual rent; that a brick church should be built thereon, or the premises used as a cemetery; also, that the premises should never be used for any secular purposes. The city covenanted that the lessees should forever quietly enjoy, use, and occupy the premises without let or hindrance. The city council, in 1823, by ordinance prohibited the use of the premises as a cemetery. The action was for a breach of the covenant. The city justified its ordinance under its charter. The question was whether the covenant for quiet enjoyment had been breached by the city. The court said: "The principal question, and the only one which is necessary to decide, is whether by the law of October, 1823, it is per se a violation of the covenant for quiet enjoyment contained in the deed of the 25th of February, 1766, for which the defendants are liable to pay damages. The validity of the by-law is asserted by both parties. We are relieved, therefore, from any inquiry on that point. The defendants are a corporation, and in that capacity are authorized, by their charter and by-law, to purchase and hold, sell, and convey real estate in the same manner as individuals. They are considered a person in law, within the scope of their corporate powers, and are subject to the same liabilities, and entitled to the same remedies, for the violation of contracts, as natural persons. They are also clothed, as well by their charter as by subsequent statutes of the state, with legislative powers, and, in the capacity of a local legislature, are particularly charged with the care of the public morals and the public health within their jurisdiction. In ascertaining their rights and liabilities as a corporation or as an individual, we must not consider their legislative character. They had no power, as a party, to make a contract which should control or embarrass their legislative powers and duties. Their enactments in their legislative capacity are to have the same effect upon their individual acts as upon those of any other persons or the public at large, and no other effect. The liability of the defendants, therefore, upon the covenant in question, must be the same as if it had been entered into by an individual, and the effect of the by-law upon it the same as if that by-law had been an act of the state legislature,-is expressly authorized by the legislature; and whether it be their act, or an act of the local city legislature, makes no difference. Dartmouth College v. Woodward, 4 Wheat. 652. The plaintiffs, then, are entitled to the same remedy as if the premises had been conveyed to them by an individual, under the like conditions and covenants. This being so, the defendant's proposition is that, the act of the legislature rendering the covenant unlawful, the covenant itself becomes inoperative. There are but few authorities on this question, and those few are at variance. The case of Brason v. Dean, 3 Mod. 39, decided in 1683, was covenant upon ♬ charter party for the freight of a ship. The defendant pleaded that the ship was loaded with French goods prohibited by law to be imported; and, upon demurrer, judgment was given for the plaintiff, for the court were all of opinion that if the thing to be done was lawful at the time when the defendant entered into the covenant, though it was afterwards prohibited

by act of parliament, yet the covenant was binding. But in the case of Brewster v. Kitchin, 1 Ld. Raym. 317, 321, A. D. 1698, a different and a more rational doctrine is established. It is there said: 'For the difference, when an act of parliament will amount to a repeal of a covenant, and when not, is this: When a man covenants not to do a thing which was lawful for him to do, and an act of parliament comes after, and compels him to do it, then the act repeals the covenant, and vice versa; but when a man covenants not to do a thing which was unlawful at the time of the covenant. and afterwards an act makes it lawful, the act does not repeal the covenant,' In 1 Salk. 198, where the same case is reported, the proposition is thus stated: 'Where H. covenants not to do an act or thing which was lawful to do, and an act of parliament comes after, and compels him to do it, the statute repeals the covenant. So, if H. covenants to do a thing which is lawful, and an act of parliament comes in and hinders him from doing it. the covenant is repealed; but if a man covenants not to do a thing which then was unlawful, and an act comes and makes it lawful to do it, such act of parliament does not repeal the covenant.' That such is the correct rule, as between individuals, seems to be admitted by counsel for the plaintiffs. But it is contended that the rule is not applicable to a case where the same party makes the covenant, and afterwards makes the legislative act which abrogates the covenant. There is indeed a seeming inconsistency; but the solution has already been given, viz. that the defendants had no power to limit their legislative discretion by covenant; and they are not estopped from giving this answer."

The case was followed and approved in Coates v. Mayor, etc., 7 Cow. 585.

But, as an arm of the civil government, the council were vested with public power, and, in the interest of the public health, might by law prohibit the further use of the property for burial purposes. This power of the city council as a lawmaking body is to be distinguished from its power as trustee under the deed. The same body had two characters and two functions. In that of trustee, its power proceeded from the deed. The trust thus vested could not be abandoned effectually without concurrence of the cestui que trust. In their character as an arm of the state government, it could not be restrained by the trusts imposed by the deed. Neither could the cestui que trust be said to have voluntarily abandoned the use, when the law stepped in and forbade, by its its penalties, a further use.

Mr.

These principles are as well settled in the law as are those principles relied upon by the plaintiff as producing a reverter. Washburn, in speaking of what will excuse a forfeiture, says:

"As a condition subsequent may be excused when its performance becomes impossible by the act of God, or by the act of the party for whose benefit it was created, or is prohibited or prevented by act of the law, so it may be waived by the one who has a right to enforce it." 2 Washb. Real Prop. 15.

The case of Marquis of Anglesea v. Rugeley, 6 Q. B. 107, is in point. Land was demised to trustees for the benefit of the poor of a parish, the trustees covenanting to build a workhouse thereon, and to use, occupy, possess, and enjoy the premises for the sole use, maintenance, and support of the poor of R., and not to convert the building or the land, or employ the profits thereof, to any other use, intent, or purpose whatever. There was a proviso for re-entry on breach of the covenant. The house was built, and the land was used for many years as required by the deed. After