delivered the opinion of the Court:
The object of this suit was to recover the purchase money of a house and lot of ground, sold by the trustees of the church to the board of education.
The declaration contained special and the common counts; and the pleas Avere, non-assumpsit, failure of title, and the statute of frauds.
It is urged that there was a forfeiture of the estate when the trustees ceased to use the property for church purposes. The deed to the trustees provided that the property should be used for church purposes only, but when it ceased to be so used, that the grantees should pay to the grantor $200; and then the former should have an absolute title with poAver to sell and coiwey for any purpose.
This language did not make a qualified or determinable fee.' In looking at the entire deed, there Avas no event Avhich circumscribed the continuance of the estate. The property Avas granted for church purposes, for a nominal consideration, and if not used for such purposes, the consideration was to be $200. This is the plain intent of the grantor, and the import of the language. In the construction of deeds, courts Avill always incline to interpret the language as a covenant, rather than a condition.
If there Avas a condition, it Avas a condition subsequent, Avhich is not favored in law, and must always be construed strictly. A stranger can not take advantage of it, and the estate can only be defeated by the actual entry of the grantor or his heirs. 4 Kent’s Com. 125, et seq; Voris v. Renshaw, 49 Ill. 425 ; 1 Wash. R. P. 444, et seq.
In this case there was no attempt at entry by the grantor; and the proof shows that there Avas a tender of performance on the part of the trustees. By such tender the land Avas discharged, but the debt remained. 4 Kent’s Com. 132.
We do not think that there Avas any failure of title.
It is next contended that the Avritten memoranda of the bargain did not show the consideration.
As Ave gather from the record of the board of education, the proposition Avas to sell for $2000 in cash, or $2200 payable on the 1st of September, 1870, Avhich proposition was accepted by a formal entry upon the minutes, and the president and secretary of the board were authorized to conclude the purchase by issuing a bond for the purchase money. But the proposition was in the alternative. Which was accepted ?
The subsequent act-of the board, by its authorized officers, shows that notes were executed for $2000, payable on the 1st of September, 1870. It was also proved that the board assumed to pay the $200 to the grantor in the deed to the trustees of the church. The conclusion follows, that the propositian to sell for $2200 was accepted, and that the purchase money, to be paid to the trustees, was $2000.
The written memorandum authorizing the issue of a bond, and the notes, which were subsequently made out and signed, clearly indicate that the proposition to sell for cash was not accepted. The substance of the contract can be ascertained from the writings with reasonable certainty, and this is all that the law requires. The direction to issue the bond, the fact that notes were executed, and the time of their maturity, conclusively show the acceptance of the proposal to sell upon a credit.
The difference between the notes and the amount proposed, is fully explained, if any explanation were needed, by the undertaking on the part of the board to pay $200 to discharge the land.
The board of education took possession of the property, repaired it, and for months used it for the purposes of a school, and common honesty arid good faith require that it should pay for the property.
The judgment is affirmed.
Judgment affirmed.