i. Pleading : exhibits: statute construed, I. Defendant, on the trial, offered a deed, signed and acknowledged by plaintiff and wife, and duly recorded, granting the right of way over the _ ■ , . . land named m the petition, to which plaintiff objected, for the reason that neither the original, nor a copy of the same, was annexed to or copied in the answer. The objection was overruled, and this ruling first demands attention.
Counsel for appellant refers to and relies upon section 29641, which provides, that, where such ■ cause of action, set-off, counter claim or cross demand, as should be evidenced by writing, is so evidenced, then the same must be stated to be so, and the writing, or a copy thereof, must be annexed to the pleading, unless a reasonable excuse be set forth in the pleading for not annexing the same, else it shall not be received in proof on trial.” There is no claim that either the deed or a copy thereof was annexed, and appellee maintains that the failure to do this could not have the effect of excluding the conveyance, which appeared to have been duly executed and acknowledged. In this view we concur. Neither a “ cause of action, set-off, counter claim or cross demand,” within the meaning of the statute, was evidenced by this deed. It *378was material to the defense, not to establish any cause of action. against plaintiff. The distinction is well understood and plainly recognized by the very language of the law. It was never contemplated that instruments of evidence merely, — those not the basis of the cause of action, etc., should be thus annexed or copied. This is shown by the preceding section, and, indeed, all the provisions of the Eevision bearing on this subject. See further, §§ 2961, 2920, 2918; also Farwell v. Tyler, 5 Iowa, 535; Dorcey v. Patterson, 7 id. 421; Boardman v. Beckwith, 18 id. 292; McCall v. Savery, 11 id. 323; Walkup v. Zehring, 13 id. 306; Vannice v. Green, 14 id. 262.
¿. convey-of way on of breach. II. The deed thus offered recites, that, whereas defendant contemplates the construction of a railroad from, etc., to, etc., therefore plaintiff, being desirous, etc., etc., to, etc., tor the purpose ot constructing a railroad thereon, * * * the right of way for said railroad over and through the following described piece or parcel of land * * * bounded and described as follows : A strip of land sufficient in width, on each side, of the center line of said railroad, for the building and operating of said road, wherever the same may be definitely located, over and across the west half, etc., * * * and provided a depot is permanently located within one-half mile west of the town plat, of Sliellsburg, the grade of the. road admitting it.”
■ It was admitted that defendant’s depot was permanently located near said town, but, not within the limit named in said deed. Plaintiff proposed to show that it was practicable to'locate said depot within said half mile; that he was illiterate and could not read; that the deed was obtained by fraud, in that defendant’s agent accepted the deed, with the, .express, understanding, etc,, that the *379depot was to be thus located, etc.; that, upon the faith of this agreement, and not otherwise, the deed was made; that it was represented to him that such was the effect of the deed; and, finally, that the words, “ the grade of the road admitting of itf were not in the deed at the time of its execution, but were fraudulently inserted afterward by defendant. To all this evidence defendant objected, because it was not competent in an (this) action at law; that plaintiff'should have gone into equity and had the deed canceled ; that the deed conveyed to and vested in defendant the right of way over, through and across the lands mentioned; that, until the deed was canceled, plaintiff’s only remedy was on the proviso, for damages. The objections were sustained, and the evidence excluded. This is the only other matter of which plaintiff complains;
This case has been twice argued, and the authorities bearing upon the questions here made have been collected with no inconsiderable industry. Our views, therefore, we propose to express very briefly.
The deed had no immediate operation. The condition is to be construed as precedent, and not subsequent. For the purposes of this case, we are to look at the deed as though the words “ the grade of the road admitting it ” were not in it. If plaintiff’s claim be correct, these were not there when the deed was delivered, and their subsequent fraudulent insertion by defendant cannot, of course, affect his rights. And, conceding that such fraudulent act would not defeat the estate, we are to look at plaintiff’s and defendant’s rights under this condition, such words being omitted.
s. —-^vhcn unnecessary, The company failed to locate the depot within the half mile named. Did this have the effect of defeating the estate vested by the deed? It is said, that, if there was a breach, plaintiff’s only means of’ taking advantage of it was by entry upon the land.. To. *380this, it is responded, that such entry is only necessary where the condition is annexed to a freehold, and that the estate conveyed by this deed is not such; and it is further claimed, that, as the grantor remained in possession, and hence could not re-enter, the estate revested in him immediately on the breach of this condition.
And as we understand from the record that plaintiff did remain in possession, and so remained at the time of the breach, we hold, that no formal act of entry on his part was necessary, that he will be presumed to hold for the purpose of enforcing forfeiture, and that he can therefore in this action ask to have his damages assessed, as though such deed had never been made.
This view is reasonable; it is just; it is, we feel well assured, in exact accord with the real intention of the parties, and it is supported by the authorities. 1 Wash. on Real Property, 452; Lincoln v. Drummond, 5 Mass. 321, citing Coke Lit. 218, § 350; Willard v. Henry, 2 N. H. 120; Hamilton v. Elliott, 5 S. & R. 375; Andrews v. Lester, 32 Maine, 394; 2 Grreenl. Cr. 33, note 1.
The need of distinct acts which are to admonish the grantee that the estate will be retained for condition broken, spoken of in some of the books, does not in reason apply to this case. Plaintiff, as is usual in such cases, granted this right of way without other consideration than the benefits resulting from the construction of the road, including this contiguous depot. But he required as a condition, and for reasons not now necessary to inquire into, that the depot named should be located within certain limits. This condition was violated. He had not parted with his absolute title to the land, but had given, released and quitclaimed the right of way, the fee remaining in him, subject to the easement conferred upon the company. Henry v. Dub. and Pa. R. R. Co., 2 Iowa, 288.
*381The deed was made in October, I860, and in June, 1866, so soon as the company proposed and was taking steps to use and occupy said land for the purposes contemplated, this proceeding was instituted. Hów long before this the depot had been located does not appear. In a matter of such magnitude the events seem to have occurred in close succession. Plaintiff could not very well admonish defendant of his intention to insist upon the forfeiture, otherwise than in the method selected. ■
By his notice to the sheriff, and hence to the company, of his claim for damages, he does in effect make claim to an exclusive title, for the breach, and it was therefore the duty of the defendant to take steps to pay such damages. After the breach, at plaintiff’s election, the estate was defeated; the company no longer had any right under the deed, and plaintiff would have the right’ to the assessment of his damages under the statute. As already suggested, that this is in accord with the equities of the parties and their intention, we entertain no doubt. Such a construction, we may add, has the merit of following the plain meaning of the deed in its terms, and avoids surprise upon numberless ignorant and well meaning persons, who have made and will make similar conveyances to those companies. Divested of all verbiage, the grantor says, locate the road as you agree and take the right of way for nothing; if not you take no title or right. Kemaining in possession and in the enjoyment of his farm when the company attempt to occupy it, he proceeds under the statute, as is his right. There was no need that he should go into equity to set aside the deed.
This view disposes of this case, and leads to a reversal of the judgment below. It only remains to add that we have examined the authorities of the appellee bearing upon the question decided. They are not in conflict with the views above expressed. In Nicoll v. N. Y. & Erie *382• Co. (12 N. T. 121), the company had entered upon the -land and was in possession at the time plaintiff brought his action. See statement, p. 123. (The action was ejectment.) In Pahner v. Fort Plain and Cooperstown P. P. Co., 1 Neman, 376, the condition was that no tollgate should be erected within, etc. It was, nevertheless, erected. The company then proceeded to condemn the land under the statute. After this plaintiffs brought their action to compel defendant to remove the gate, and to observe the condition in the agreement of release. It was held that the action could not be sustained. The ruling is placed upon several grounds, and among others that it by no means follows, because a grantee consents to take an estate subject to a certain condition, that he also consents to obligate himself personally for the performance of the condition. If, in this case, plaintiff was seeking to compel the company to locate its depot within the half mile, the case would be applicable.
Livingston v. Stickles, 8 Paige, 402, was where plaintiff brought an action at law to recover money claimed under a contract in relation to the disposition of real estate, and was nonsuited. She afterward brought ejectment on account of the breach of the condition named and was again nonsuited. She then brought this action in equity to compel the payment of this money and was again defeated, because the remedy, if any, was at law. Its history is certainly a strange one, but it is in no respect applicable. The holding is, first, that plaintiff’s remedy was at law and not in equity; second, that the covenant and condition in the lease was in the nature of a fine upon alienation; third, that equity would not interfere to enforce the performance of sxich covenants, etc. — ■ where the landlord, by the terms of the lease, had not secured to himself a remedy at-law.
*383The other authorities cited by appellee’s counsel, are no stronger in support of his positions.
Eeversed.