in 1904, when the ordinary medical and surgical resources had been exhausted. The equitable claim of the union for reimbursement cannot rise higher than the libelant's own right.

A decree may be entered dismissing the libel, but without costs.

MINARD V. DELAWARE, L. & W. R. CO.

(Circuit Court, D. New Jersey. June 30, 1905.)

1. DEED-CONSTRUCTION-COVENANTS-CONDITIONS.

In an action in ejectment, brought by a grantor to recover possession of land, because certain provisions in his deed, alleged to be conditions subsequent, had been violated by the grantee's assigns, held, that whether the provisions of the deed referred to are covenants or conditions is to be ascertained by a construction of the entire deed for the purpose of ascertaining therefrom the intention of the parties, and this regardless of the technical meaning of the terms employed; and that, if it appear doubtful whether the terms used import covenants or conditions, courts of law always incline to construe them to be covenants. in order to avoid a forfeiture of the estate.

[Ed. Note.-For cases in point, see vol. 16, Cent. Dig. Deeds, §§ 469, 471, 472.]

2. SAME-CLAUSE OF REVERTER.

Held, also, that where, as in this case, a clause of reverter was found in the deed, it would, in order to give it effect, control the construction of the deed to the extent of making the undertakings of the grantee, so far as the same were included in the reverter, conditions subsequent, rather than covenants.

[Ed. Note. For cases in point, see vol. 16, Cent. Dig. Deeds, § 471.]

3. SAME-BREACH BY GRANTEE.

Held, further, that the admitted breaches of the grantee's undertakings in this case were not embraced in the reverter, and that, inasmuch as it included some of the undertakings of the grantee, such undertakings as it did not include must be construed to be covenants.

(Syllabus by the Court.)

In Ejectment. Tried before the court without a jury upon a state of facts agreed upon.

William J. Kearns, for plaintiff.

Conover English and Robert H. McCarter, for defendants.

CROSS, District Judge. The following is the state of facts agreed upon, the same being entitled in the cause and signed by the attorneys of the respective parties:

"It is hereby stipulated and agreed by and between the attorneys for the respective parties hereto that the above-entitled cause shall be tried by the court without a jury, trial by jury being hereby expressly waived, and that at the trial the following state of facts shall be submitted to the court as the agreed state of facts upon which this case shall be heard:

"First. The deed dated February 6, 1871, between Dayton A. Minard and Amanda C., his wife, party of the first part, and the New Jersey West Line Railroad Company, party of the second part, is admitted to have been duly signed and executed, and the same may be offered in evidence by either party, without objection.

"Second. Dayton A. Minard was the owner and in possession of the property described in the said deed on the date of the said conveyance, to wit, February 6, 1871.

"Third. Dayton A. Minard's grantor was the owner and in possession of the property described in the deed given by Minard and wife to the New Jersey West Line Railroad Company on February 6, 1871, at the time of the conveyance of the said property to the said Dayton A. Minard.

"Fourth. The description of the property set forth in the summons and declaration served in the above-entitled cause is correct, and properly describes the premises conveyed to the New Jersey West Line Railroad Company by the plaintiff herein on February 6, 1871, and that the defendant herein is now in possession of the same.

"Fifth. On May 9, 1904, and at divers times before and after that date, certain passenger express trains operated and managed by the defendant herein did not stop at the station at Basking Ridge, New Jersey, but did stop at the Bernardsville Station, to wit, trains from Gladstone to New York, leaving Bernardsville for New York at 7:25 a. m. and 8:25 a. m. And trains leaving New York for Bernardsville at 3:50 p. m. and 4:50 p. m. did, on the date aforesaid, pass the Basking Ridge Station without stopping, and did stop at Bernardsville, and from thence on to Gladstone.

"Sixth. The station house at the defendant's station at Basking Ridge is not as large and complete as the station house of the said defendant at Bernardsville.

"Seventh. The station house at Bernardsville of the defendant herein stated is less than three miles distant from the station of the defendant at Basking Ridge.

"Eighth. That Dayton A. Minard, the plaintiff herein, on February 6, 1871, was the owner of a large farm or tract, of which the property described in the said deed and conveyed by him to the New Jersey West Line Railroad Company was a part. This farm or tract at the time of the said conveyance surrounded on every side the property described in the said deed.

"Ninth. At the time of the commencement of this suit, to wit, July 25, 1904, and for a long period prior thereto, the said Dayton A. Minard, the plaintiff herein, had conveyed away all his right, title, and interest to the property originally owned by him surrounding and abutting upon the premises described in the said deed given by him on February 6, 1871, to the New Jersey West Line Railroad Company.

"Tenth. The plaintiff herein, prior to the institution of this suit, did lay out, open, and dedicate to the public the streets and highways mentioned in the said deed, and set forth on the map thereto annexed.

"Eleventh. The printed book or pamphlet entitled 'Incorporation, Laws and Leases, Passaic and Delaware Railroad Company, 1865-1886,' contains true copies of the acts, deeds, leases, etc., by which the Delaware, Lackawanna & Western Railroad Company, the defendant herein, came into possession and control of the property described in the plaintiff's summons and declaration. The said printed book or pamphlet may be offered in evidence by either side without objection."

The declaration is in the ordinary form in ejectment, and alleges that the plaintiff's right to the possession of the premises therein described accrued May 29, 1904. The plea is not guilty.

At the trial the plaintiff offered in evidence the deed referred to in the above stipulation, being a deed made by Dayton A. Minard and wife to the New Jersey West Line Railroad Company, dated February 6, 1871, which is in form a deed of bargain and sale, containing a covenant against the grantor's acts, the habendum being to the party of the second part, their executors and assigns, forever, for railroad purposes only, and conveying a strip of land at Basking Ridge, Somerset county, N. J., 150 feet wide and 663 feet long, with parallel sides, being 100 feet in width on the easterly side of the center line of said New Jersey West Line Railroad and 50 feet in width on the westerly side of said center line, which center line is therein particularly described. The tract of land above de

scribed is now in the possession of the defendant herein under and by virtue of certain foreclosure proceedings, deeds, and leases which appear in the book offered in evidence, pursuant to paragraph 11 of the statement of facts, but which it is unnecessary to set forth in detail. There was no pecuniary consideration expressed in the deed, but it was recited to be "in consideration of the covenants on the part of the party of the second part" therein contained.

It is claimed on the part of the plaintiff that upon a true construction of said deed it will appear that certain conditions subsequent therein contained have been broken, whereby the title to the said premises has reverted to the plaintiff. This position is denied by the defendant corporation, which insists that the clauses of the deed which the plaintiff claims have been broken are covenants, or that the only conditions contained in the deed are specified in the clause of reverter, and that these have not been broken. By referring to the stipulation it will be seen that the alleged breaches, briefly stated, consist in the fact that the station house on the land in question is not as large and complete as the station house at Bernardsville, which is less than three miles distant from the station at Basking Ridge, and that certain passenger express trains operated and managed by the defendant, which stop at Bernardsville, do not stop at the station at Basking Ridge. In order to a proper understanding of the case, it will be necessary to set forth at length the parts of the deed which show the alleged conditions. or covenants claimed to have been violated. They are as follows: "This conveyance however is made subject to the right now and hereby especially reserved by the party of the first part hereto, to lay out, open, maintain, and dedicate to the public, two public roads or highways, sixty feet in width, across the said tract of land as shown on said map, which public roads when so laid out, opened and dedicated, shall be considered in all respects, at all times, and for all purposes the same as if they had been laid out and opened as highways by the public authorities, previous to the location of said Rail Road.

"And the party of the first part covenants and agrees with the party of the second part, that he will open and dedicate to the public as highways, as well the two strips of land, as also, a strip of land on the West side of the premises hereby conveyed, of eighty feet in width and about three hundred and thirty feet in length, and one on the East side thereof, forty feet in width and six hundred and sixty feet in length.

"All of which appears on said map which is hereto annexed, and made part of this conveyance and agreement.

"And the said party of the second part for themselves, their successors and assigns, do in consideration of the foregoing conveyance, covenant and agree to and with the said party of the first part, his heirs and assigns, as follows; and this conveyance is made upon the express consideration, agreement and condition, that, the said party of the second part, shall and will, as soon as their Rail Road shall be so far completed as to be in use for public purposes in the neighborhood of Basking Ridge in said County of Somerset, erect and forever thereafter maintain a first class station house for Rail Road passengers on said strip of land hereby conveyed, on the West side of the centre line aforesaid, and between the two new streets above mentioned, and will always thereafter cause to stop at said station to take up and set down passengers, all such passenger trains on its said Rail Road, as shall stop for that purpose at any other station on said Rail Road, within three miles of the station so to be erected, on the hereby granted premises, and that said station shall be erected and maintained of suitable size and with suitable conveniences, and as large and complete as any other station house on the said Rail Road,

within three miles thereof; and shall be erected and always be maintained on the West side of said centre line, and never on the East side thereof. And that said party of the second part, their successors and assigns, will at all times so arrange the running and stopping of its trains, and will at all times so arrange the same, as to afford the same accommodation and facilities to travelers and passengers at the station so to be erected and maintained on the hereby granted premises, as are afforded at any other stations on said Rail Road, within three miles thereof.

"And further, that the said party of the second part, their successors or assigns, shall never knowingly cause or permit the hereby granted premises or any part thereof, to be used for any purpose other than Rail Road purposes, such as Rail Road tracks, switches, stations, and freight houses, locomotive berths and repair shops, and shall never knowingly cause or permit any portion of the same, or of any erection thereon, to be used for the sale or other disposal of any cider, ale, beer, brandy, spirits, whiskey or other intoxicating fluid or beverage of any kind whatsoever, and shall never knowingly cause or permit any such fluid or beverage to be sold or other wise disposed of thereon, but this stipulation and condition shall not prevent the receipt and transportation of the said fluids and beverages as freight, over the said Rail Road.

"And if at any time the said party of the second part, successors or assigns, shall knowingly cause or permit the premises hereby conveyed or any erection thereon to be used for any of the purposes hereinbefore provided against, and forbidden, or shall knowingly cause or permit any such intoxicating beverages or fluids to be sold or otherwise disposed of thereon, then and in such case the right and title hereby conveyed shall cease and determine, and the said tract of land and premises, and all right and title therein shall revert and return to, and become vested in the said party of the first part, his heirs and assigns, in all respects the same as if this conveyance had not been made.

"And further that the said party of the second part, shall never cause, suffer or permit any freight house, engine house, repair shop or building, other than a passenger station house to be erected on the West side of said centre line, or use the Westerly side of said strip of land for taking up or putting down, or handling freight or any other object of Rail Road traffic, except passengers and their baggage, and express goods carried by passenger trains."

Whether the terms of the deed under consideration are conditions or covenants is to be ascertained by a construction of the entire deed for the purpose of ascertaining, if possible, the intention of the parties. Terms which, taken by themselves, import a condition, are frequently construed to be covenants, while terms which, taken by themselves, import covenants, are frequently construed to be conditions; or, stated in a different way, the intent of the parties is gathered from the construction of the whole instrument, regardless of the technical meaning of the terms used. If it be doubtful whether a clause in a deed be a covenant or a condition, courts of law always incline against the latter construction, if they can reasonably do so, in order to avoid forfeiture. Southard v. Central R. R. Co. of N. J., 26 N. J. Law, 13; Rawson v. District No. 5, 7 Allen, 125-127, 83 Am. Dec. 670; Merrifield v. Cobleigh, 4 Cush. 184; Woodruff v. Woodruff, 44 N. J. Eq. 349-353, 16 Atl. 4, 1 L. R. A. 380. And for the same reason words in a deed not in the form either of a covenant or condition will be construed to be a covenant, rather than a condition. Woodruff v. Woodruff, Rawson v. District No. 5. Counsel for the defendant contend that the covenants immediately following the habendum clause are mutual or reciprocal, and that by them the plaintiff on his part agreed to lay out and dedicate certain public roads surrounding the premises

conveyed, and the party of the second part on its part covenanted to erect and maintain a first-class house for passengers on the land conveyed, and to cause to stop at said station to take up and set down passengers all such passenger trains as should stop for that purpose at any other station on said railroad within three miles thereof; that said station should be of suitable size, with suitable conveniences, and as large and complete as any other station house on said railroad within three miles thereof; and that the party of the second part would so arrange the running and stopping of its trains at the station so to be erected as would afford the same accommodation to passengers and travelers as would be afforded any other station on said railroad within three miles. In the view, however, that we take of this case, it seems unnecessary to decide whether the foregoing covenants are or are not mutual or reciprocal. Undoubtedly a forcible argument could be made in the affirmative; but we think that a correct construction of the point under consideration can be more safely reached by having regard chiefly to the clause of reverter set forth in the deed. In nearly all of the cases which we have examined this clause, where it has been found, has exercised an apparently controlling influence in deciding whether specific expressions in a deed were intended to be covenants or conditions. Thus in Woodruff v. Water Power Co., 10 N. J. Eq. 489, the owner of a farm conveyed the same subject, nevertheless, to the following proviso: "That if the said main raceway shall not be made on said premises in conformity to the act incorporating said company [the defendant], the said lands and premises should revert to the grantor, his heirs and assigns." The Court of Errors held that this language constituted a condition, and it plainly appears that they were influenced thereto by reason of the provision that, in case of failure to comply with the condition, the property should revert. Page 508. In Southard v. C. R. R. Co., 26 N. J. Law, 13, the property was deeded to a railroad for station purposes, and certain conditions were set forth in the deed, at the foot of which appears a clause of reverter. The deed was held to be upon condition, although it was held that the condition had not been broken. To the same effect are Cornelius v. Ivins, 26 N. J. Law, 376, and McKelway v. Seymour, 29 N. J. Law, 321. In Bouvier v. Baltimore & N. Y. R. R. Co., 65 N. J. Law, 313, 47 Atl. 722, the property was granted upon the condition that the grantee should forthwith begin, lay out, etc., and thereafter forever maintain, a double-track railway and build and maintain a passenger station, etc. This language was held to import a condition, since it further appeared that, if the company should refuse to construct and maintain its double track and to build and maintain a station, then and in either of such cases it should or might be lawful for the parties of the first part, their heirs, executors, administrators, or assigns, to re-enter and repossess and enjoy the lands and premises, as in their former estate. Page 324, 65 N. J. Law, page 776, 47 Atl. Post v. Weil, 115 N. Y. 361, 22 N. E. 145, 5 L. R. A. 422, 12 Am. St. Rep. 809, the deed conveyed a fee of certain lands with the following provision:

In