The opinion of the court was delivered, by
Woodward, C. J.This cause was so tried in the court below that the questions of law which grew naturally out of the facts *123were not brought upon the record, and are not, therefore, to be decided, though they were somewhat discussed in the argument.
The action was ejectment by John W. Scott to recover from his brother Abner, and the others in possession, the homestead of their deceased father, John Scott. John W. Scott claimed under an instrument of writing in the nature of a deed, which his father made to him on the 22d of November 1849. This instrument styles itself an indenture, was signed and sealed by the grantor in the presence of witnesses, and was recorded, though we have upon our paper-books no statement or evidence touching its acknowledgment or delivery. The fair presumption, however, is, that it was both duly acknowledged and delivered. It sets forth a consideration of natural love and affection for the grantee, John W. Scott, and also his agreement to live with the grantor and assist him in working the land conveyed, and to maintain Patience Scott, the wife of the grantor, during her natural life if she should survive him, and then it conveys to the said John W. Scott in fee simple the premises in dispute, excepting and reserving to himself, the said John Scott, for life, the entire use and possession of the premises; and then immediately following the reservation these words occur: “ and this conveyance in no way to take effect until after the decease of the said John Scott, the grantor.” The habendum is “ to have and to hold the said described pieces of land after the decease of the said John
Subsequently to this conveyance, misunderstandings and disputes arose between, the father and son, which resulted in the father’s loss of possession, for which he brought ejectment against his son and put him out of possession. After having thus recovered possession of the premises, the father, on the 26th February 1861, made his last will and testament, and therein revoked the above-described instrument, which he styled “ a certain will and testament in form as a deed,” and devised all his real and personal estate to his daughters by name and his son Abner Scott, subject only to the dower of his wife Patience, should she survive him. She did not survive him, and at his death the devisees succeeded to the possession of the premises. The contest, therefore, was between the grantee in the deed, and the devisees in the will.
It would have been reasonable to expect that the defendants, claiming under the will, would have taken the position so plainly indicated by their testator, that the instrument under which the plaintiff claimed, though in form a deed, was in legal effect nothing more than a will, and as such a revocable instrument; and that it was revoked in point of fact by the subsequent will, under which they were in possession. This, indeed, was so obviously their line of defence that it is hard to believe they missed it altogether.
*124Yet as the case is presented to us, there is no trace' of such a defence upon our paper-books. No point or prayer was put to the court upon the nature and legal effect of the deed, and no instructions were given by the court on the subject. A single bill of exception to evidence was sealed, and the only error assigned here is upon that bill.
The evidence offered and rejected as irrelevant related to the bad treatment of his father, by John W. Scott — to his turning his father out of possession, and to the action of ejectment by the father to regain the possession.
.The sole error assigned is to the rejection of that evidence. The theory upon which the defence appears to have proceeded was that the deed was a conditional conveyance, and if a breach of condition could be shown the estate of the grantee would be defeated. It was called also an executory agreement, and the argument here was, that if they could have been permitted to show that John W. Scott had not performed his part, he could not have taken the estate intended to be conveyed. There were two grounds upon which the competency of the rejected proofs was placed.
A condition in a deed may be enforced by action of ejectment at the suit of a party having an interest in the condition: Bear v. Whistler, 7 Watts 144. And possibly, in some circumstances, it may be enforced as matter of defence to an ejectment. But if we could find a condition in this deed, we could not see what interest the defendants below had in it, for the condition, if any, was the support of the grantor and his wife for life, and that was personal to them, and died with them. The devisees succeeded to no such covenant, and had no interest whatever in it.
There are, however, no words in the deed to create a condition —neither proviso, ita quod, — sub conditione ,nor any equivalent for these usual if not indispensable words. The agreement for support is merely recited as part of the consideration which moved the grantor to make the deed, and it has been held that a consideration which amounts to a covenant cannot be enforced by ejectment: Cook v. Trimble, 9 Watts 15.
In that agreement, such as it was, the defendants had no interest, for nothing was to be rendered to them, and therefore as to them it was ground neither for prosecuting or defending an ejectment. Bishop v. Reed, 3 W. & S. 261, is cited as an authority for the defence set up, but that was simply the case of equity refusing to give effect to a deed founded in mistake and fraud, and is not susceptible of application to the facts of this case.
Nor can we understand upon what ground the deed in question here can be considered as an executory contract. If the consideration were executory during the lifetime of the grantor and *125his wife, it ceased to be so at their death, for as a consideration it ceased utterly.
But the conveyance of the land was fully executed. A deed, signed, sealed, acknowledged, delivered and recorded, is surely an executed contract. The agreement for services, which constituted part of the consideration, was a continuing contract on the part of the vendee during the lives of his parents, but it no more made the deed executory than an unpaid bond or mortgage for purchase-money would have that effect. An agreement may be executory on one part, and fully executed on the other, as is the case in every conveyance where purchase-money remains unpaid. Whilst a vendor in possession may defend in respect of unpaid purchase-money, or, if out of possession, may sue in ejectment to recover it, a stranger to the consideration may not set up the non-payment of purchase-money as an impeachment of the conveyance. But the defendants were not defending as vendors in possession. They were strangers to the agreement for services, which constituted the valuable part of the consideration of the deed.
These services were not due to them, and whether rendered or not, was an inquiry, if open at all, rather for the personal representatives of the decedent than for his devisees.
Therefore we conclude the court was right in shutting out all inquiry in this action touching the agreement and performance or breach of it.
This disposes of the only question upon the record, but should another ejectment be tried between the parties, we would suggest that attention be given to the following points:—
1st. Was the instrument of 22d November 1849, a deed of conveyance, or a testamentary paper in the nature of a will ?
2d. If it was a deed of conveyance, could a freehold be created in futuro, with only a life estate reserved to support it, instead of a life estate granted ?
3d. If for any reason the deed could not operate as a present conveyance, could it not take effect as a covenant to stand seised to the use of the grantee, which the Statute of Uses would execute in him ?
The judgment is affirmed.