solicitor. This act, however, was in nowise a delegation on the part of the city council of its power to purchase land and accept a deed thereof, as argued by counsel for complainant, but was simply an ordinary and prudent step in the transac tion. The duty performed by the city solicitor was purely ministerial or administrative: 1 Dillon on Municipal Corporations, 4th ed., sec. 96; Kramrath v. Albany, 53 Hun, 206, 6 N. Y. Supp. 54; Edwards v. Watertown, 24 Hun, 426; Hitchcock v. Galveston, 96 U. S. 341 (348). It is not to be expected that the members of the city council are to individually examine and collectively approve a deed, but that such a duty, requiring, as it does, special technical knowledge in the art of conveyancing, will be performed by the law officer of the city.

As to the point made by counsel that no appropriation was made by the city council for the payment of the agreed price for the land, we reply that while this is so, yet we think it is now too late for the complainant to take advantage of this error. The money for said purchase, though never formally appropriated by the city council, as of course it should have been, has nevertheless already been paid by the city treasurer, and by reason thereof the land now belongs to the city. And we do not think the mere fact that the payment was irregularly made affects the title or gives the complainant any standing in a court of equity. The city council probably looked upon the action of the taxpayers in the premises as being tantamount to an appropriation of the amount of the purchase price aforesaid, and hence that it was only necessary for them to take possession of the land and see to it that the proper deed thereof was put upon record. This view was clearly erroneous, as appears from the provision of the charter herein before recited, and there is nothing of record in the case which warranted the city treasurer in paying for said land. But, as already stated, it has been paid for, and, so far as appears, no one has been or can be harmed by reason of the irregularity. As to future expenditures in connection with the project in hand, the city council will doubtless see to it that appropriations are regularly and properly made therefor.

As to the third and last point taken by complainant's counsel, viz., that the appropriation of the amount of the premium received from the sale of the bonds was illegal, we are of opinion that his position in this regard is correct. The taxpayers by their vote have expressly determined what sum shall be expended for a city hall, including the purchase of the site there

for, and it is not competent for the city council or any committee thereof to exceed said sum. The mere fact that the amount appropriated was derived from the sale of the city hall bonds can, of course, make no difference. Said amount is simply money in the treasury belonging to the city, and doubtless available for ordinary purposes, but it cannot be used for any "new project" without the express authority of the taxpayers.

The argument of the city solicitor that the site for a city hall having been purchased, the project of building a city hall thereon is no longer a "new project" within the meaning of the charter, and hence that it is competent for the city council to appropriate said sum to be used in connection therewith, is so manifestly fallacious as to require no serious consideration. The project of erecting a city hall can hardly be treated as an old one before the building is begun. He also argues that this additional sum will not be used unless it is necessary. Probably not. But in view of the fact that it lies with the taxpayers to determine what amount is necessary, and also in view of the further fact that they have already determined that question, it is not competent for the city council to review their decision.

As the demurrer in this case is general, and as the bill clearly states a case for an injunction as to the expenditure of the amount of the premium received from the sale of the bonds aforesaid, the demurrer must be overruled.

Demurrer overruled.

MUNICIPAL CORPORATIONS.-NOTICE OF THE POWERS of a municipal corporation must be taken by persons who contract with it: Notes to Winchester v. Redmond, 57 Am. St. Rep. 826; Honaker v. Board of Education, 57 Am. St. Rep. 853.

MUNICIPAL CORPORATIONS-INJUNCTION-ILLEGAL DISPOSITION OF FUNDS.-A resident taxpayer may maintain a suit to restrain the municipal authorities of a city from illegally disposing of its moneys: Tukey v. Omaha, 54 Neb. 370, 69 Am. St. Rep. 711, 74 N. W. 613.

APPROPRIATIONS OF MONEY, WHAT ARE, is the subject of an extended note to Carr v. State, 22 Am. St. Rep. 638-649.

What Words Create Conditions Subsequent.

Definitions-Words of Condition—Intention-Construction.-A condition subsequent, in contracts, is one which follows the performance of the contract, and operates to defeat and annul it upon the subsequent failure of either party to comply with the condition: Nash

REFERENCE TO MONOGRAPHIC NOTES.

Deed may be avoided for breach of condition subsequent, when, how, and at whose instance: 44 Am. Dec. 743-759.

ville etc. R. R. Co., 2 Cold. 574, 584. With reference to estates, a condition subsequent is one which operates upon an estate already created and vested, and renders it liable to be defeated: Chapin v. School District, 35 N. H. 445, 450. Conditions subsequent are such as, when they do happen, defeat the estate: Raley v. Umatilla County, 15 Or. 172, 3 Am. St. Rep. 142, 13 Pac. 890. A deed upon condition subsequent conveys the fee when it is executed, but the fee passes subject to the contingency of being defeated as provided in the condition, the grantor having the power of re-entry, upon condition broken; and if there is a breach of the condition, the estate continues in the grantee until defeated by actual entry: Star Brewery Co. v. Primas, 163 Ill. 652, 45 N. E. 145. Whether a condition is precedent or subsequent depends upon the intention of the parties: Star Brewery Co. v. Primas, 163 Ill. 652, 45 N. E. 145; Sheppard v. Thomas, 26 Ark. 617, 628. The usual words of a condition subsequent are, "so that," "provided," "if it shall happen," or "upon condition," the last expression being the most appropriate: Chapin v. School District, 35 N. H. 445, 450; Raley v. Umatilla County, 15 Or. 172, 3 Am. St. Rep. 142, 13 Pac. 890; Rawson v. School Dist. No. 5, 7 Allen, 125, 83 Am. Dec. 670. No precise technical words or form of expression is necessary, however, to create such a condition. If the condition is not manifest from the terms of the grant, the construction must always be founded on the intention of the parties: Chapin v. School District, 35 N. H. 445, 450; Underhill v. Saratoga R. R. Co., 20 Barb. 455; Horner v. Chicago etc. Ry. Co., 38 Wis. 165, 173; Kilpatrick v. Mayor, 81 Md. 179, 48 Am. St. Rep. 509, 31 Atl. 805.

The words "upon condition," or "provided always," etc., are not absolutely necessary to create an estate upon condition; their equivalent is sufficient: Gibert v. Peteler, 38 N. Y. 165, 97 Am. Dec. 785. Mere words should not be deemed sufficient to constitute a condition and to entail the consequence of the forfeiture of the estate, unless, from the proof, such appears to have been the distinct intention of the grantor, and the necessary understanding of the parties to the instrument. Nor should the formal arrangement of the words influence the court wholly in determining what the clause was intended to accomplish, but in this, as in every other case, its judgment should be guided by what was the probable intention viewing the matter in the light of reason: Post v. Weil, 115 N. Y. 361, 12 Am. St. Rep. 809, 22 N. E. 145. Conditions subsequent are raised only by apt and sufficient words. The words must not only be such as of themselves import a condition, but must be so connected with the grant in the deed as to qualify or restrain it: Laberee v. Carleton, 53 Me. 211; Craig v. Wells, 11 N. Y. 315, 320; First Methodist etc. Church v. Old Columbia etc. Ground Co., 103 Pa. St. 608. A deed will not be construed to create an estate on condition, unless language is used which, ex proprio vigore, imports a condition; or unless the intent of the grantor to

make a conditional estate is otherwise clearly and unequivocally indicated: Rawson v. School Dist. No. 5, 7 Allen, 125, 83 Am. Dec. 670. If the act or condition required does not necessarily precede the vesting of the estate, but may accompany or follow it, and if the act may be as well done after as before the vesting of the estate, or if from the nature of the act to be performed and the time required for its performance it is evidently the intention of the parties that the estate shall vest, and the grantee perform the act after taking possession, then the condition is subsequent: Underhill v. Saratoga etc. R. R. Co., 20 Barb. 455, 459. But while it is true that no precise form of words is necessary to create a condition subsequent, there must be some words which, ex vi termini, Import that the vesting or continuance of the estate is to depend upon the supposed condition: Craig v. Wells, 11 N. Y. 315, 320; and the condition must be so clear as to leave no doubt of the grantor's intention: Board of Commrs. v. Young, 59 Fed. 96. Conditions subsequent are not favored in law, and are construed strictly, because they tend to destroy estates: Emerson v. Simpson, 43 N. H. 475, 82 Am. Dec. 168; Den v. Central R. R. Co., 26 N. J. L. 13; Laberee v. Carleton, 53 Me. 211; Kilpatrick v. Mayor, 81 Md. 179, 48 Am. St. Rep. 509, 31 Atl. S05; Peden v. Chicago etc. Ry. Co., 73 Iowa, 328, 5 Am. St. Rep. 680, 35 N. W. 424; Horner v. Chicago etc. Ry. Co., 38 Wis. 165, 174; Taylor v. Sutton, 15 Ga. 103, 60 Am. Dec. 682; Thompson v. Thompson, 9 Ind. 323, 68 Am. Dec. 638; Scovill v. McMahon, 62 Conn. 378, 36 Am. St. Rep. 350, 26 Atl. 479; Page v. Palmer, 48 N. H. 385; Hoyt v. Kimball, 49 N. H. 322; Crane v. Hyde Park, 135 Mass. 147; Gadberry v. Sheppard, 27 Miss. 203; Wier v. Simmons, 55 Wis. 637, 13 N. W. 873; notes to Chicago etc. Ry. Co. v. Titterington, 31 Am. St. Rep. 46; Cross v. Carson, 44 Am. Dec. 744.

Conditions subsequent are created only by express terms or clear Implication: Scovill v. McMahon, 62 Conn. 378, 36 Am. St. Rep. 350, 26 Atl. 479; Gadberry v. Sheppard, 27 Miss. 203; Rawson v. School Dist. No. 5, 7 Allen, 125, 83 Am. Dec. 670; note to Cross v. Carson, 44 Am. Dec. 744. A condition subsequent will not be raised in a deed by implication from a mere declaration therein that the grant is made for a special and particular purpose: Kilpatrick v. Mayor, 81 Md. 179, 48 Am. St. Rep. 509, 31 Atl. 805. See the subdivision, infra, treating of special and particular purposes. The question as to whether a condition is precedent or subsequent is not dependent upon the place of words in a deed, but is to be determined from the whole instrument: Rogan v. Walker, 1 Wis. 527. The word "condition" is not necessary to the creation of a condi. tion, but any words that will convey the proper meaning are suf. ficient. If a conveyance is made upon specified terms, stated in a separate instrument made by the grantee to the grantor, and upon no other consideration, the terms stated must be regarded as ex

pressive of conditions subsequent, a breach of which may forfeit the estate; Wilson v. Wilson, 86 Ind. 472.

Covenants—Trusts—Expression of Condition—Construction—Reverter— Re-entry.-A clause in an instrument will not be construed to be a condition subsequent unless the intention is clearly manifested, the inclination being to interpret it as a covenant rather than as a condition. In cases of doubt as to whether a clause in a deed is a covenant or a condition, courts of law will always incline against the latter construction: Boone v. Clark, 129 Ill. 466, 21 N. E. 850; Rawson v. School Dist. No. 5, 7 Allen, 125, 83 Am. Dec. 670; Graves v. Deterling, 120 N. Y. 447, 24 N. E. 655; Woodruff v. Woodruff, 44 N. J. Eq. 349, 16 Atl. 4; Hoyt v. Kimball, 49 N. H. 322; Scovill v. McMahon, 62 Conn. 378, 36 Am. St. Rep. 350, 26 Atl. 479. So with a clause in an ordinary contract: North etc. Rolling Stock Co. v. O'Hara, 73 Ill. App. 691; or a provision in a contract for the sale and exchange of lands: Barr v. Little, 54 Neb. 556, 74 N. W. 850. Whether a provision in a deed is a condition subsequent or a covenant depends upon the intent of the parties, and such provision will, if there is any reasonable doubt as to what was intended, be held to be the latter. Hence, a deed to a railroad company of a right of way, which contains, as a part of the consideration, the provision that "the water. . . . be made to run" in a certain place, will be construed to be a covenant attached to the land: Peden v. Chicago etc. Ry. Co., 73 Iowa, 328, 5 Am. St. Rep. 680, 35 N. W. 424. Technical words do not always necessarily raise a condition subsequent, but may be controlled by the context of the instrument in which they are used, so that sometimes they work a limitation and condition, and sometimes a covenant or a trust only: Kilpatrick v. Mayor, 81 Md. 179, 48 Am. St. Rep. 509, 31 Atl. 805. Such words may be overlooked where they do not inevitably evidence the intention of the parties. In order that a covenant shall be read from the words of the instrument, they need not be precise or technical, nor in any particular form. Hence, whether words amount to a condition, a limitation, or a covenant may be a matter of construction, depending on the contract. The construction of clauses which might be interpreted either as conditions subsequent or as mere covenants must be against the conditions involving the forfeiture of the estate. Thus, though a deed contains a clause as follows: "Provided always, and these presents are upon this express condition, that the aforesaid premises shall not, nor shall any part thereof, or any building or buildings thereon erected or to be erected, be at any time hereafter used as a tavern or public house of any kind,” this condition will not be construed as a condition subsequent, the failure to observe which will forfeit the estate, but as a mere covenant for the protection of the grantor. The office of this clause is merely to restrain the generality of the preceding clauses by limiting the uses to which the premises might