Grady v. Crook. the plaintiff, upon payment by him of the offered reward; and plaintiff endeavored to obtain the property upon payment of $1000, but finally, induced, as he alleges, by certain threats, he paid to defendant the $1500, and received from him the property. Defendant was an attorney at law, and claimed to be acting on behalf of a client, whose name he refused to disclose. It is plain that in giving the plaintiff the information which he did, and in returning the property, the defendant was acting, whether for himself or a client, under the offer which had been made by the plaintiff; it was an acceptance of the plaintiff's proposition, and when the property was returned or offered upon payment of the reward, the contract was performed by defendant or his client, and the plaintiff would have been liable in a suit for the reward if he had not paid. He did pay it, and brings this action to recover it back. We do not see upon what principle he can succeed. In making the payment he was only discharging the obligation of a contract which he had tendered, and which had been accepted and acted upon by defendant, or his client, it matters not which. The reward offered was a large one, but it was the plaintiff's own proposition; the money had become due, and there was nothing in the circumstances alleged by him to legally entitle him to any reduction. Nor do we think that the fact of the plaintiff's being influenced by threats will enable him to recover back what he paid in discharge of his legal obligations. see nothing in the fact of the employment of a lawyer by the finder of the property to impeach his good faith, or impair his rights. This circumstance was severely criticised upon the argument, but the risk attending the delivery to a stranger of articles of so great value, and the large amount of the reward offered, might well induce a prudent man to seek legal advice, so as to guard his rights and liabilities. Anonymous. We do not discover in the case any question of fact which should have been submitted to the jury. The case seems to have been properly disposed of, and the judgment should be affirmed with costs. NEILSON, Ch. J., concurred. ANONYMOUS. N. Y. Superior Court; Special Term, December, 1876. COVENANT.-CONDITION SUBSEQUENT. EVIDENCE.-INCUMBRANCE. SPECIFIC PERFORMANCE. - In a deed of lands, after the granting part, a clause whereby the grantee covenants with the grantor, &c., "as one of the terms and conditions upon which the foregoing conveyance is made," not to build except under certain restrictions, constitutes a valid condition subsequent, a breach of which would divest the estate. * A condition subsequent, though grafted upon an estate at the time of its creation, constitutes an "incumbrance" within the meaning of a clause in a contract between vendor and purchaser, to convey free from incumbrances except such as are specified in a deed containing such condition. All restrictions, obstructions and impediments tending to prevent or impair the free use and transfer of real estate may be deemed "incumbrances," within the meaning of such an excepting clause. † It seems, that extrinsic evidence is admissible to show that the parties, in adopting such a clause, intended it to provide for the condition or burden in question. * Location of clause in the deed not important. Parmelee v. Oswego, &c. R. R. Co., 6 N. Y. 74. Words importing that the continuance of the estate is to depend upon compliance, are enough. Craig v. Wells, 11 N. Y. 315. See also Nicoll v. N. Y. & Erie R. R. Co., 12 Id. 121. There may be condition without covenant. Palmer v. Fort Plain, &c. P. R. Co., 11 N. Y. 376. + See also Borrowe v. Milbank, 5 Abb. Pr. 28. As to running covenant to maintain boundary fence. Blain v. Tay Trial by the court. Anonymous. Wm. Henry Arnoux, for plaintiff. R. H. Bowne, for defendant. SANFORD, J.-By articles of agreement dated November 1, 1876, the plaintiffs, executors, agreed to sell to the defendant, for $120,000, a house and lot of land in the city of New York; and, upon receipt of the purchase-money, at the time, and in the manner mentioned in the contract, to execute and deliver to defendant, or to his assigns "a proper executor's deed for the conveying or assuring to him, or them, the fee simple of the said premises, free from all incumbrance, except, as above-mentioned, and those contained in deed to J." [naming the testator]. The lot in question forms part of a tract conveyed, in one parcel, by two persons, by deed, dated May 15, 1849, and by their grantee and wife, conveyed, as one parcel, to the testator, by deed dated February 9, 1854. lor, 19 Abb. Pr. 228. As to right of way, Beach v. Miller, 51 Ill. 206. As to outstanding lease. McCool v. Jacobus, 7 Robt. 115. As to homestead exemption. Robinson v. Wiley, 19 Barb. 157; 15 N. Y. 489. Right of way of railroad, and existence of highway a breach of the covenant. Burk v. Hill, 17 Am. R. 731; S. C., 48 Ind. 52. Intervening condemnation under power of eminent domain not an incumbrance. Stevenson v. Loehr, 57 Ill. 599; S. C., 11 Am. R. 36. Compare Kellogg v. Malan, 50 Mo.; S. C., 11 Am. 426. A covenant not to build, held an incumbrance, within the unqualified usual covenant against incumbrances. Roberts v. Levy, 3 Abb. Pr. N. S. 311. As to entry in assessment roll,-Nicholas Bank, 63 N. Y. 399, and cases cited. --see Barlow v. St. Compare for contrast on other covenants, Stuyvesant v. Mayor, &c. of N. Y., 11 Paige, 414; Pease v. Christ, 31 N. Y. 141. The definition of "incumbrance" applied under the condition of an insurance policy is somewhat different. Owen v. Farmer's Joint Stock Ins. Co., 10 Abb. Pr. N. S. 166 n.; and 57 Barb. 518; Dohn v. The Same, 5 Lans. 275. Anonymous. The said deed of May 15, 1849, contained a clause whereby the grantee therein named covenanted and agreed with the grantor, her heirs, executors, administrators and assigns, "as one of the terms and conditions upon which the foregoing conveyance is made," that neither he, nor his heirs, nor assigns, should erect any buildings, within forty feet of the front of any of the lots therein described, except of certain materials and of a certain character therein specified; nor should he or they, erect or build, or suffer or permit to be, upon any part of the premises, any of several kinds of structures, trade or business therein, particularly enumerated. The deed of February 9, 1854, to J. [the testator], conveyed the same premises, "subject to a certain covenant and condition contained in the above-mentioned deed" of 1849, "against the erection of buildings on, and the permission or suffering, on said premises, or any part thereof, any building, or trade, or business therein specified." It also contained a clause whereby the testator entered into the like covenant with his grantor, "as one of the terms and conditions upon which" the conveyance to him was made, that neither he nor his heirs, nor his assigns, should erect or build, or suffer, or permit any of the obnoxious structures or trades thus enumerated. On the day fixed for the completion of the purchase, the plaintiffs tendered to the defendant a deed, duly executed, conveying the premises in question, subject to the aforesaid covenant and condition contained in the deed of 1849, and subject also to the further condition above-mentioned, contained in the deed to the testator. The defendant refused to accept such deed on the sole ground that it contained the restrictive clauses above set forth. The present action was thereupon brought for a specific performance by the vendee, of his contract of purchase. Anonymous. On the trial, it appeared in evidence that the contract of purchase and sale was drawn at the office of the brokers through whom the sale was negotiated, by a clerk in their employ, after an interview between the defendant and the plaintiff, in this action; that no lawyer was in attendance at such interview; that the deed to the testator was then and there produced and read by defendant, who called attention to the restrictive clauses therein contained. The plaintiff thereupon stated in substance that he wished to be very particular in conveying nothing but what was conveyed to his testator, the grantee, in and by that deed, and that the contract should be drawn in that way. He further stated that the clause in question was the usual restrictive clause put in deeds of that character, and did not affect the title or value of the property. The contract was then signed. Upon this state of facts the defendant insists that by the terms of the contract, he is entitled to have conveyed to him a good and indefeasible estate in fee simple; that by reason of the condition thereto annexed, the estate held by the testator was not of this character; that such estate was and is defeasible upon breach of such conditions,-that the words of the contract, "free from all incumbrance except those contained in deed to" the testator, are not to be construed as comprehending or relating to the condition; that the term incumbrance, as applied to an estate in land, has a technical and restricted signification, and is inapplicable to a condition subsequent, upon breach whereof the estate may terminate; and, finally, that even if the restrictive clauses contained in the deed to the testator, are to be deemed incumbrances, within the meaning of the contract, the statements and representations made by the plaintiff, at the time when the contract was prepared and executed, were such as to destroy its |