Page:Federal Reporter, 1st Series, Volume 5.djvu/329

 WALKEB r. TEAIi. 817 �■^ALKEB ». TeAIi. �[Cvreuit Court, D. Oregon. January 10, 1881.) �L. CoHDrrioif Ali Limitation— Dhmand of Possession in Case op Co- Tbnants. — G. conveyed an undivided intereat in certain reaj property to H., in trust, to secure the payment of a loan from W,., with an agreenient thai G. might remain in possession and taise the rents p.nd profits without account, uiitil the note given ior the loan was overdue and unpaid, in which case the trustee was to take possession and dis- pose of the property to satisfy the debt, and G. "was to surrender the possession for this purpose on demand. The note became overdue and remained unpaid, and G. conveyed his interest in the premises to his co-tenant, T., and gave him possession, when H. demanded such pos- session from T., who refused unqualifiedly, and continued to oceupy the property, and received the rents and profits thereof until the same was sold at a judicial sale, at the suit of H., for less than two- thirds of the loan and interest. Edd : �(a) That the interest which G. had in the property, in case the debt was not duly paid, was not an estate upon condition which was not avoided until a demand for possession, but an estate upon a çondi- tional limitation which terminated with the happening of the con- tingency — the note becoming overdue and remaining unpaid — with- out any demand. �(J) That the demand for possession required by the agreement was, under the circumstances, not a demand for the purpose of avoiding an estate, and therefore insufficient, unless made exactly for that which the trustee was entitled, — nothing more nor less, — ^but was the equiv- alent of a mere notice to quit by a landlord upon a tenant at will, and was sufflcient, although in f onn it may have included the exclu- sive possession of the whole property — the refusai being in effiect a deniai of the trustee's right to the possession even as a co-tenant. �(c) The trustee being entitled, as co-tenant with T., to the posses. sion of the whole property, and the demand having been made by him for possession in pursuanceof the agreement, it is to beconstruedand understood as a demand for possession as such co-tenant, and there- fore it waa not larger than the right of the party making it, and is sufflcient, even if it was to have the efEect of avoiding an estate. �2. Constbuction op Dikbction to Tbusteb to Seli.. — A conveyance in trust to secure the payment of a loan is made primarily for the ben- eflt of the lender, and should be construed, so far as it is open to con- struction, so as to efEect the object for which it waa made ; and, there- fore, where such a conveyance provided that upon default in the payment of the loan the trustee should take possession and sell the property upon 30 days' notice, Md, that the authority to sell was for ����