The opinion of the Court was by
Weston C. J.Until March 25th, 1786, the title to the land in controversy was in the Commonwealth of Massachusetts. On that day, it was included in a large tract granted and conveyed, by a committee in behalf of the Commonwealth, to John Brewer and *160Simeon Fowler, and certain settlers on the tract, mentioned by name as grantees in the deed, among whom are Hannah Ary, widow, and Solomon Sweat. The deed contained the following clause in respect to these settlers, “ on condition that each of the grantees aforesaid pay to John Brewer and Simeon Fowler, five pounds in lawful money, within one year from this time, with interest till paid.” Taking the deed together, we must regard it as conveying to each of the settlers . named, one hundred acres of the land, subject to be defeated upon the non-performance of the foregoing condition, within the year. Generally an entry of the grant- or or his heirs is necessary to defeat an estate thus granted, upon condition subsequent; and the estate could not be divested by the entry of a stranger. But the deed contained a further clause, which is-in these words, “provided nevertheless, if any settler, or other grantee aforesaid, shall neglect to pay his proportion of the sum or sums aforesaid, to be by him paid, in order to entitle him to one hundred acres as aforesaid, in that case the said John Brewer and Simeon Fowler shall be entitled to hold the same in fee, which such negligent person might have held, by complying with the condition aforesaid on his part.”
It is a rule of law, that if a condition subsequent is followed by a limitation over, in case the condition is not fulfilled, or there is a breach of it, that is termed a conditional limitation. 2 Black. 155; 4 Kent, 121 ; Pells v. Brown, Broke James, 590. This limitation takes effect without entry or claim, and no act is necessary to vest the estate in the party, to whom it is limited. The land then was conveyed to the settlers named, with a conditional limitation over to Brewer and Fowler, if they or either of them, failed to fulfil the condition, within the time appointed. There was a failure on the part of the settlers ; whereupon at the end of the year, in March, 1787, the fee of the land in question vested in Brewer and Fowler.. The settlers having petitioned the legislature to interfere in their behalf, a resolve was passed on the twenty-fourth of February, 1791, proposing, that if Brewer and Fowler would quiet the settlers for a less sum, than they were originally to receive, the difference should be made up by the Commonwealth. The rights of Brewer and Fowler were recognized in that resolve which, having become vested, were out of the reach of legislative *161control. The settlers were treated with indulgence, both by the Commonwealth and by Brewer and Fowler, who discovered no unwillingness to accede to the proposition made to them.
On the twentieth of December, 1794, one Ames and his wife, the same who had been the widow Ary, conveyed their title to the Ary lot to Nathaniel Gould, the elder. Although the legal title to the land was in Brewer and Fowler; yet as they were willing to release their right to the settlers, upon the payment of a small sum, the beneficial interest was regarded as in the latter. It does not appear that Gould resisted or denied the title of Brewer and Fowler, while it remained in them, and the jury have found, that they were not disseized by Gould.
In consequence of the mistake of Nathaniel Drnmer, who acted under the resolve of March first, 1799, Gould’s lot was assigned to Solomon Sweat, and Sweat’s lot to Gould. In February, 1804, they both accepted from Brewer and Fowler, deeds of each other’s lots, having paid to them the sums stipulated. Whether Dummer had authority thus to locate to each his lot, or whether what he did was binding upon them, if they had refused to acquiesce, it is not necessary to decide, as the parties concerned were satisfied to abide by the arrangement.
Up to this period, there is nothing in the case, except perhaps the mortgage to Neal, tending to show, that Gould claimed adversely to Brewer and Bowler, but that he held in subordination to their title. He witnessed the deed of his lot to Sweat, of the contents of which he could not be supposed to be ignorant, as he himself received a deed of Sweat’s lot. They must have been given at their instance, and upon payment of money. Gould set up no adverse seizin, and interposed no objection, so that as far as he was concerned, there was nothing to prevent the operation of the deed to Sweat. As he still occupied the land, he must be considered as holding as Sweat’s tenant at will, and subject to the duties of that relation. It is true he violated those duties, by a conveyance of the land in fee to Neal, in July, 1806. This, at the election of Sweat, might have been treated as a disseizin. But Gould remained in as before, recognizing Sweat’s title ; for in 1810, he requested him to convey to John Wilkins, he himself conveying the land, of which he had taken a deed to Sweat. From July, 1806, *162Gould, the elder, may have professed to Neal and his agent, that he held under him; and as between them, Gould was Neal’s tenant at will; but he previously stood in the same relation to Sweat, who had prior claims to his fidelity as tenant. Unless Sweat elected to consider himself disseized, for the sake of his remedy, he had a right still to treat Gould as his tenant. In the conflict of duties, which Gould assumed, he was doubtless playing a double game for his own purposes; and there is much reason to believe, that his object was to defraud Neal. But there is no evidence, that the tenant had any notice of it, or that it is in any degree imputable to him. He is entitled to stand upon his rights ; and if by the rules of law, the title is in him, it must be so adjudged. If the title of Neal is not to be traced back to a period anterior to July, 1806, the seizin and the fee were then in Sweat. He could not be dis-seized by his own tenant, Gould, except at his election. Blunden v. Bangle, Cro. Charles, 302. If there was no disseizin, the tenant has connected himself with Sweat’s title, and must prevail.
It may be insisted, that Neal’s title commenced when the mortgage deed was executed to him by Gould, in 1791, and that he then succeeded to Gould’s seizin. If so, Gould could do nothing in 1804, or subsequently to impair Neal’s right. It is not improbable, that the justice of the case, in some of its aspects, might be best promoted by sustaining these positions, if they were in accordance with the facts. The fraudulent practices of the elder Gould would thereby be defeated, and the heirs and assigns of Neal would enjoy the fruits of his purchase. But the rights of other persons, not conusant of the fraud, if any existed, have intervened; and if it has appeared, that Neal has waived an advantage, he might have retained, his heirs and assigns must abide the consequences. In July, 1806, he cancelled his mortgage, and took a new conveyance from Gould. The mortgage having been discharged, no rights can be predicated upon it, or deduced from it. Intervening incumbrances or .attachments, if any had existed, would thereby have been let in. Neal could not have set up prior rights, arising from the cancelled mortgage. We cannot regard it as having any more effect upon the cause, than if it had never existed. If Neal would have preserved his title under the mortgage, he should have *163refused to discharge it without payment, and declined the arrangement proposed by Gould.
As the lot in question vested in Brewer and Fowler, in March, 1787, the instruction first requested, was properly withheld, as were also the second and third, the jury having negatived the facts, upon which they were based. The jury were instructed, that the title did not pass to the widow Ary, by the deed to Brewer, Fowler and others, but as it passed to Brewer and Fowler, at the end of a year, viz. in March, 1787, by a conditional limitation, the legal effect was the same, as if it had never vested in the widow Ary, so that the tenants were not unfavorably affected, by this instruction. The other instructions given to the jury were substantially correct.
Judgment on the verdict.