This case presents the questions, whether the house was the property of the plaintiff; and if not, then whether the defendants, H. and E. Gifford, being the owners of it, had a right to enter the plaintiff’s close to remove it.
The agreement of the parties however renders it unnecessary o consider the second question.
It cannot be doubted, that the bill of sale from fl. and E. *368Gifford to Mingo passed the property at the time but it con tained a condition, and the defendants allege that the condi ti on has not been performed, and that in consequence the property was forfeited and revested in the former owners. This condition is, that the house shall be removed “ from the site where it now stands to some other place, removed from any location on the west side of the road, where it now stands, and between the following places, to wit, the southeast corner of said Giffords’ land and John Lawrence’s house-yard.” The plaintiff removed it from the road, and put it upon his land westerly of the road and between the places designated in the condition. It is contended by the plaintiff, that the contract means that the building should not be placed in the road, on the west side of it, but we think this is not the proper construction of the language. A house, said to be on the west side of a road, would not be supposed by any one to be within the road ; and if this building had been removed to another place within the road, it would not strictly speaking have been between the places designated in the condition. It is suggested that if it might not be placed in a close adjoining the west side of the road, it could not be placed anywhere within the State, west of the road. Whether this would be an unreasonable restriction, need not be considered ; for we think the terms of the condition limit the parties to a reasonable distance on the west side of the road. It would seem that the building was not to be put on a place having communication with the road between the points specified. The setting it upon the plaintiff’s close was, in our opinion, a violation of the condition, which revested the property in the former owners.
The plaintiff objects that the condition was unreasonable but we think it was such as a reasonable man might well im • pose. The house being worth only thirty dollars, would prob..bly be occupied by a class of persons who would not be desirable neighbours.
If is contended that the defendant, by receiving payment of Howland’s note after the removal of the building, waived the forfeiture. But we think the doctrine of waiver does not ap ply. Here was a sale, and if the defendant had received payment in money at the time, it would not prevent his taking *369advantage of a subsequent breach of the condition; and the receiving the note of a third person may be regarded as a payment.
Another question is whether the tender of $1'50, after action brought, in full of damages and costs, is a bar to the action. It is obvious that such a tender, in an action of trespass, cannot be effectual, unless it be so by virtue of St. 1830, c. 85, § 2. The provision is, that any person, 11 who may be sued upon any debt, or demand payable in money,” may tender “ to the creditor,” before the entry of the action at court, the amount of such debt or demand, with interest thereon, and costs. This language is manifestly inappropriate and inapplicable to the unliquidated claim growing out of a trespass.
The plaintiff therefore will take judgment for $1-50 damages, and the legal costs.