The proviso is separated from the preceding part of the deed by a printed period, but it is not in a separate paragraph, and it commences with a small p instead of a capital; and I infer, from what is said in the case, that, the deed being written upon a common blank, the proviso had to be partially interlined, which perhaps accounts for the peculiarity of its position.
It appears to me that the proviso naturally applies to what has gone before. I suppose, from the stress which is laid upon the small p, that the parties think that a matter of some importance; but it does not seem so to me, and I do not see anything in that which appears to me to alter what I think is the natural construction of the proviso.
Neither, if we suppose that this conveyancer, whose mechanical skill was so small, was master of all the learning on the subject of implied covenants, is it apparent to me what object he could have which would induce him to substitute for the covenant of warranty implied in the word "give," the express covenant with the qualifying condition. I am therefore of opinion that the proviso must be held to apply to the whole preceding deed. It is also said that the condition has become impossible by the act of God; but I do not understand that the accidental burning of the mill can be considered to be an event so entirely beyond human control as to be properly described as an act of God. If, therefore, the condition had really become impossible by this accidental burning of the mill, the effect would be to give the plaintiff a right of entry.
In this case, however, it appears that the plaintiff requested the defendant to rebuild the mill, so that, had the defendant complied within a reasonable time, the plaintiff must have been held to have waived his extreme rights, and to be estopped to deny that the condition had been performed.
LADD, J. I agree that the exceptions must be overruled. I see no legal reason why one may not grant an estate determinable upon such a contingency as the destruction, in any way, of the building which exist upon the premises at the time of the grant. The estate conveyed would be simply a base or qualified fee.
Judgment on the verdict. *Page 339