Page:Federal Reporter, 1st Series, Volume 7.djvu/652

 640 FBDEBAL BEPOBTEB. �words of express condition, which render the estate liable to be defeated before its determination, and retum to the grantors and their heirs, and not pass over to a third party. In such a case the rules of the common law reguire a grantor or his heirs, on the breach of a condition, to make entry or claim before they can sustain an action of ejectment to recover possession of the forfeited estate ; for when the grantor conveyed his estate he parted with the seizin, which he or his heirs can only regain by an actual re-entry or claim made for the purpose of enforcing the forfeiture. Upon re- entry or claim the grantor or his heirs become seized of the estate had at the time of making the grant upon condition, freed from any subsequent lien, encumbrance, or limitation. If the grantor or his heirs were in possession of the promises when the breach of the condition ocourred, the estate re- vested in them at once, without any formai act on their part, and they were presumed after the breach to hold for the purpose of enforcing a forfeiture, unless they waived the breach by some acts showing an intention to continue the estate of the grantee. Mere silent acquiescence in an act which had constituted a breach of an express condition would not amount to a waiver of the right of forfeiture for such breach. �In our case the grantors remained in possession of the premises from the date of the execution of the grant, and in 1873 alienated the same to the defendant corporation; and it is a question of faot, to be determined by a jury, whether they did any act amounting to a waiver of any breach of condition on the part of the iirst grantors. �In the books upon the subject of estates upon condition, there are many nice constructions of the courts as to what words make a condition with a clause of re-entry, or with- out such clause expressed in the deed. This learning bas been elaborately presented in the argument, but it is un- necessary for me to consider the question to much extent, as it is well settled that where there are express words in a deed, which of thernselves make a condition, (as in this case, "on the following terms and conditions,") there is no need of ��� �