4 FEDERAL REPORTER.
» The clause inthe Mason-Bulfinch deed, and especially the one in the
Bulfinch-Humphreys deed, imposing the restriction against building, is
in terms appropriate to create a condition, as distinguished from a lim-
itation or covenant. Nothing could be plainer or more peremptory than
the words in the latter deed,—" provided, and this deed is upon condi-
tion that." There is no room for construction, and there is nothing in
the context of either of these deeds which warrants any other than the
ordinary meaning of the language employed. Effect must be given to it
conformably with the well-settled rules of law as expressing a technical
condition. Gray v. Blanchard, 8 Pick. 283; Langley v. Chapin, 134 Mass.
82. The cases of Ayling _v. Kramer, 133 Mass. 12; Skinner v. Shepard, 130
Mass. 180; and Episcopal Mission v. Appleton, 117 Mass. 326,-which
illustrate the familiar rule that, although the words in a deed or devise
are sufficient to create a condition the breach of which would forfeit the
estate, the courts lean against such a construction, and when the words
are capable of being treated as a covenant or restriction, will hold that
they do not amount to a condition, do not conflict with the conclusion
reached. The instrument considered by the court in each of these cases
_ contained language from which it was reasonable to infer that the clause
under consideration was not intended to operate as a condition.
The extrinsic evidence introduced by the complainant, for the purpose
‘ of showing that neither Mason nor Bulfinch intended that the restrictive
p clause in their deeds should take effect as a condition, if competent in
any viewas against the defendant, is not persuasive; much less is it con-
trolling. So far as this evidence relates to the Mason—BulHnch deed, it
does not require comment, because the defendant must prevail if the
clause in the Bulfinch-Humphreys deed is a condition; and it is there-
fore immaterial what construction is given to the clause in the Mason-Bul-
finch deed. So far as it relates to the Bulfinch-Humphreys deed, it is ,
to the effect that, shortly after Bulfinch purchased of Mason the prop-
erty described in the Mason deed, which property included, not only the
complainant’s lot, but the lot adjoining it fronting on the same street, he
conveyed the adjoining lot to Higginson by a deed without any condi-
tion or restriction against building. The deed to Humphreys and the
deed to Higginson were apparently prepared at the same time, because
they bear the same date; but the deed to Humphreys was not executed
until a few days after the execution of the deed to Higginson. Conced-
ing, for argument, that the evidence authorizes the inference that Bul-
finch did not regard the restrictive clause in Mason’s deed as a condi-
tion, the question is whether he intended to impose a condition in his own
deed to Humphreys; and the fact that he saw Ht to convey part of the
land without condition or restriction has no legitimate bearing upon this
question. It does not throw any light upon the meaning of his deed of
V another part of the land, made about the same time, to another person,
in which he incorporated, not only a restriction, but an unequivocal con-
dition. If such evidence can overthrow the plain language of a written
instrument, the learning of the eonveyancer is vain.
It must therefore be determined that the complainant is unable to con-