Several questions have been raised and elaborately discussed in the present cases, upon which the court have found no occasion to express any opinion; the de cisión of the cases being, in our opinion, to be determined by *349the construction of the deed given to Amos Binney and others by the demandants. Being a claim for a forfeiture, for an alleged breach of a condition subsequent, the words of the deed are to be taken most strongly against the grantors and in favor of the grantees.
It is a grave question whether, if the deed were clear and explicit on the face of it, and capable of but one construction, other contemporaneous written evidence, such as the votes, accepted reports, and other records of the demandants, showing the purpose they had in view in making the deed, the terms on which it was intended to be made, and the authority conferred on their agents, would have been admissible, to control such construction, and give a different effect to their deed. The court have not thought it necessary to put the decision oh that ground, or to decide whether they are admissible for that purpose, although their votes may be referred to in another aspect, to show what construction the grantors put on their own deed.
The purpose of giving the deed is manifest from the deed itself, and the relations and circumstances under which it was made. The grantors had become a company, holding a quantity of land for sale, in house lots, the same having been recently transferred to them, as such land company, by the Lechmere Point Company. It would be manifestly for the interest of such a company, and tend to promote a sale of their lots, for purposes of habitation, that a provision for public worship, and schools for the education of children, should be permanently established; just as it was for their interest to appropriate land gratuitously for streets. The consideration was a nominal one, and the grant was made to five persons, in trust for themselves and for thirty or forty others named. The deed was in the common form of a deed by a corporation, under its common seal and the hand of their president, and purported to be a grant of a lot of 20,000 feet, described, bounded on three sides by streets, and on the fourth by their own land. It embraced two corner lots of 10,000 feet each. It was made to the five persons named, their heirs and assigns. *350habendum, to the several uses, and upon the several trusts, and subject to the several conditions, declarations and agreements thereinafter mentioned; to wit, in trust for Atherton H. Stevens, and twenty eight others named, their heirs and assigns, together with such other persons as might associate with them for the purpose of the public worship of God, and the erection, on said premises granted, of a church or meeting-house for said worship, as also a house for the clergyman, and a school house. And the deed further went on to state, that the grant thereby made was upon the express condition that the grantees, or cestuis que trust, or some of them, should build and finish, within two years from the 9th of November 1822, on the lot thereby conveyed, a church or meeting-house, for the public worship of God, and should also build and finish, within three years, a suitable dwelling-house for the clergyman, and a school house; and in case said church oi meeting-house, and parsonage house, and school house should not be built on said lot and finished within the respective times named, then the land granted, with its appurtenances, was to revert to said Proprietors of the Canal Bridge.
Had this deed stopped here, it would have been at least clear and intelligible, and in conformity with the votes of the corporation, under which the deed was executed by its officers. The purpose of the trust was to secure the erection of the required buildings within the times limited, with a view to the encouragement of inhabitants to purchase and settle on their lands, and thus promote their purposes as a land company having such lots for sale. The condition, as thus far expressed, was adapted to secure the accomplishment of the declared uses and purposes, and the execution of the declared trusts, by making the forfeiture depend upon the failure to erect those buildings within the times' respectively limited.
But the deed contained another and distinct condition, in these words: “ And this grant is upon this further condition, that the land hereby conveyed shall be forever hereafter appropriated to the maintenance and support of the public worship of God, as hereinbefore specified, and to no other *351uses or purposes whatever; otherwise, the same to revert to the said corporation of the Canal Bridge, as above mentioned."
It is upon the alleged breaches of this last condition that the demandants at last rely. In the original specification of claim, breaches were assigned, of the first condition, that the grantees did not erect and build the required buildings within the times limited. But they have been waived, and it is conceded that a church edifice, a school house, and a dwelling-house suitable for a parsonage, or clergyman’s house, were built within the times limited, or within the term to which the time had been extended by the grantors. The breaches relied on all consist of acts alleged to have been done by the grantees or their assignees, tending to prevent the appropriation of the whole of the granted premises directly to the support of public worship; as, for instance, by using parts of it, not adapted to or capable of being used for the direct purposes of public worship, to other purposes, by mortgaging or leasing parts of it, by which it may be diverted from such use.
This brings us directly to the consideration of the legal character and effect of this condition. It is contended by the tenants, that this last condition is inconsistent with and repugnant to the grant, the habendum, the trusts, and express prior condition of the deed, and is therefore void.
Upon the fullest consideration, the court are of opinion that this last condition is repugnant to the foregoing parts of the deed, and is void. It is not only another and further condition superadded to those which preceded it, but they are repugnant, and cannot both be complied with; so that a compliance with one would be a violation of the other. If the last condition requires the grantees to appropriate the entire premises exclusively to the purposes of public worship, it is impossible to comply with the other condition, to erect a school house and parsonage. If this condition does not require the grantees to. appropriate the whole of the granted premises to the support and maintenance of public worship, and to no other uses or purposes whatever, then no breach has been assigned or proved.
*352Now, finding that the two conditions are repugnant, and cannot both be complied with, one or the other must yield; and, in determining which, we consider that the former is more favorable to the grantees, that it is most reasonable, and best adapted to carry into effect the objects and purposes of the grant; and we are of opinion that it must stand, and that the subsequent condition must be held void.
Such being, in our view, the true construction of this deed, it is satisfactory to believe that such was the construction of the grantors themselves. When the buildings were erected and completed, as the grantees supposed, in fulfilment of the conditions of the deed, a committee was appointed on their request, to examine and report, whether the conditions had been performed. This committee reported that they had been, and this report was accepted by vote of the demand-ants. And, without laying any stress on the previous votes of the company, as evidence to control their deed and vary its construction from that which its terms would purport, we may remark that the first condition was the one apparently regarded by those votes as the one relied on and intended to be inserted, and that the last condition seems to have been inserted without the authority of any vote of the corporation, which now appears.
Demandants nonsuit, in both abtions.