The conveyance not having been made, a fair way of testing the merits of the dispute will be to consider what such a conveyance should have embodied. In other words, what was the intent and meaning of the offer which was made and acted upon, as evidenced by the document containing it?

The two prominent stipulations are, that the station shall be upon the land, and that the contractors shall, for the purpose of the station, have a grant in fee simple. There is not a word in the document, and not a word in the evidence, to indicate that the idea was at all present to the mind of either party that at any time whatever the contractors, or the railway company to whom the land. would eventually go, should hold the land for any other purpose than as the site of the station for the town of Prescott. Evidence is not wanting to the contrary, but I found nothing upon it, though perhaps I may have to advert to it farther on. I prefer to test the signification of the document by the terms in which it is drawn. No. one reading the offer would gather from it that the ownership of the land by the proposed grantees was ever contemplated, except in connection with the employment of the land for the designated purpose. That is the natural force of the language used; and if we regard its technical effect, under established principles of construction, we shall find that the only estate offered is one limited in its duration to the continuance of the station upon the lands.

That we are not to apply to the phraseology of an executory agreement like this the same technical rules of interpretation as would be imperative in construing a conveyance, is an elementary proposition. For example, the words "fee simple" would not in a deed be proper words of limitation; but, as we have them here, we understand them, just as in a will, to imply a limitation to the grantee and his heirs. On the same principle, if we give to the expressions" for the purpose," "for the express purpose," &c., the force they would have in a will, we find the offer which is made is of a defeasible estate only.

18-VOL. VII A.R.

The doctrine may be found stated at p. 123 of Preston's edition of Sheppard's Touchstone in these words: "There are other words also, that in the King's grant, and in last wills and testaments, and in other special cases, do make conditions, as ea intentione, ad effectum, propositum, intentionem, paying, and the like. So that if one devise his land to J. S. ea intentione, &c., that he shall pay W. S. £10, or to sell, &c., these are good conditions. But these words regularly do not make a condition when they are used in deeds."

If the offer to convey in fee simple were inconsistent with the evident desire and intention to secure the appropriation of the land to the purpose for which alone the plaintiff proposed to give it, the direct meaning of those words ought to be held qualified by the context. There is, however, no inconsistency. For authority on this point we may take a passage from Coke, 10 Rep. 97, b," An estate of fee simple is either an estate of inheritance absolute and indeterminable, as where lands are given to a man and his heirs, he has such a pure and absolute estate which can never determine; or a fee simple determinable, and that is in two manners, Sc., either expressly derived out of an absolute and pure estate in fee simple, or implicit, and derived out of an estate tail; out of an absolute estate in fee also in two manners; first, by condition, as upon mortgage, and that is called fee simple conditional; secondly, by limitation, as if A enfeoffs B of the manor of D, to have and to hold to him and his heirs, so long as C has heirs of his body; and that is called a fee simple limited and qualified; and in both these cases, the whole estate in the land is in the feoffee, and therefore no remainder or reversion can be expectant upon either of them; implicite and derived out of an estate tail," &c., going on to explain it.

Therefore, the deed to be given in pursuance of the offer, should, if properly framed, have conveyed the land to the contractors and their heirs, habendum so long as they maintained and used upon the lands the station for the town of Prescott.

Turning again to the Touchstone, p. 125, we read: "The most apt and proper words to make a limitation of an estate are Quamdiu, dummodo, dum, quousque, si, and such like. And therefore if A grant lands to B, to have and to hold to him and his heirs, until B go to Rome; or until he be promoted to a benefice; or until B pay to A or A pay to B £20, these examples, by reason of the words heirs, give determinable fees."

By a deed of this character the rights and interests of both parties would have been secured in conformity with the letter as well as the spirit of the bargain. They would, in my judgment, have by the conveyance and the limitation secured, on the one side, the required station grounds, and on the other the benefit of the station while it remained, and the reverter of the land if the station were discontinued. This was the measure of the advantages stipulated for, and as it seems to me, all that could, upon either side, have reasonably been demanded.

A covenant that the Prescott station should for all time remain in that particular spot, or that there should for all time be a station at Prescott, given by gentlemen who were merely constructing the works in order to hand them over to the company, would have been a much less businesslike and effective security than the limitation of the estate conveyed. There is no suggestion in the written evidence that such a covenant was thought of in 1853, and it would be a matter of surprise to find that one had been given.

It was urged in argument that the contractors must be held to have dealt as agents for the company. They were, of course, acting under the statutory powers of the company. They could not, in their own right, adopt proceedings for compulsory expropriation of lands; and we are told that, for convenience sake, they sometimes had voluntary conveyances made directly to the company. But they were not agents to bind the company by contract; and in this particular instance the dealing was with them in their own names, and not with the company now assumed to have been represented by them. If a covenant

had been taken, it would necessarily have been their personal covenant. I do not understand upon what principle the burden of it would have devolved upon the company. The utmost they could have done was what, under the effect of the whole transaction, as I understand it, they did, namely to convey to the company the estate in the land determinable upon failure to maintain the station.

The consequence of not taking the conveyance was, that they took an equitable instead of a legal estate; but the quality of the estate was the same; and the estate which they transferred to the company, if they really did make a conveyance of this land, was of course no greater than that which they themselves had.

It seems that some years after the railway had been handed over to the company, and after, so far as I know, Messrs. Jackson & Co. had ceased to have any interest in these lands, a bill was filed by them against the plaintiff, and a decree obtained for specific performance of the original agreement. In pursuance of that decree, a deed was made by the plaintiff, which was produced at the trial from the custody of the solicitor for the contractors in the Chancery suit, with whom it had ever since remained. That deed contained a covenant on the part of the grantees to maintain the station. The deed was not executed by the grantees, and it has no bearing upon the rights of the parties to the present litigation. So far as it serves to show the view taken in 1864, by those connected with that suit, of the effect of the agreement of 1853, it recognizes the plaintiff's right to a continuance of the station, and does not assume what is now asserted for the defendants, that by the placing of the station upon the land with the bonâ fide intention of continuing it there the consideration agreed for was satisfied and the company entitled to the absolute ownership of the land, even though the exigencies of the traffic or the convenience of the public required the station to be elsewhere.

The form in which the plaintiff's interest was attempted to be secured by that deed was not in accordance with

the true effect of the agreement, if I construe it correctly. But although the contractors, or those who acted for them in 1864, may have been willing, or may, in obedience to the understood effect of the decree they had obtained, have submitted to give the covenant, the liability of the defendants could not thereby be enlarged. That liability must be measured by the state of the title when they took over the land in 1856.

Since the delivery of the judgment now in review, a decision has been given in the Court of Appeal in England, involving questions so nearly resembling some of those discussed before us, as to invite a somewhat extended reference. I allude to Witham v. Vane 44 L. T. N. S. 718.

In 1824, an agreement had been made by the Duke of Cleveland for the purchase of land from one Silverlop, in which agreement there was a stipulation that the conveyance should contain a covenant by the Duke that he and his heirs, &c., should pay to Silverlop and his heirs, &c., six pence for every chaldron of coals which should be wrought and gotten out of the estate, and which should be shipped for sale. The conveyance was executed by the grantor, and contained the covenant, but it was not executed by the Duke. In the action the representatives of Silverlop sought to make the Duke's personal estate liable upon the covenant, although the land had been sold and the mines were worked by the vendees. Mr. Justice Fry decided for the plaintiffs, presuming that, although the deed produced had not been executed by the Duke, he must have executed a counterpart of it. The Court of Appeal did not consider that presumption warranted by the evidence. James, L. J., said: "I am of the opinion that it is impossible to say that a covenant which has not been executed is the same as a covenant which has been executed, because the person who ought to have executed it, or who was intended to execute it, takes the estate. It is to me a novelty to say that because there is a conveyance to a man in fee simple and some covenant for him to execute which