ceedings are heard shall admit him to bail, if a sufficient amount thereof is offered, and, if not, shall remand him with an order fixing the sum in which he shall be held to bail, and the court at which he shall be required to appear; and a judge of the county court in the county where he is confined may, before the sitting of said court, admit him to bail pursuant to such order. It is seen that a prisoner charged with any offense, unless in execution, or for a capital offense when the proof is evident or presumption great, is bailable as a matter of law; and also when the offense charged is capital, unless the proof is evident or presumption is great. This provision of the Constitution is to be interpreted in the light of the common law. United States v. Wong Kim Ark, 169 U. S. 649, 18 Sup. Ct. 456, 42 L. Ed. 890. At common law a person accused or indicted of any felony whatsoever was bailable in the discretion of the court, upon good sureties, until he was convicted. In re Comolli, 78 Vt. 337, 63 Atl. 184. It should Because of this, and pursuant to the provisions of the statute above noticed, the prisoner will be admitted to bail if a sufficient amount thereof is offered with sufficient sureties. Such bail not being offered here, the prisoner is remanded to her former custody, with an order that she be held to bail in the sum of $5,000, with two or more good and sufficient sureties, the recognizance or bond to be conditioned as provided by law in criminal cases pending in county court, for her personal appearance before the county court next to be held in Chelsea, in the county of Orange, on the first Tuesday of June, 1919, and from term to term thereafter, to answer to the indictment there pending against her for the crime of murder, in accordance with the law in such case made and provided, to be admitted to bail as aforesaid, pursuant to the provisions of section 2236 of the General Laws of the state. (93 Conn. 518) (Supreme Court of Errors of Connecticut. June 11, 1919.) seem from the foregoing that even where the H. J. LEWIS OYSTER CO. v. WEST et al. offense charged by indictment is a capital one, and the proof evident or presumption great, the prisoner may be admitted to bail in the discretion of the court having jurisdiction of the question; but in this connection it should be stated that the discretion to be exercised by a court of justice is not an arbitrary, but a sound, judicial discretion, controlled by certain and well defined and established rules. Ordinarily, in practice, bail is refused after indictment found, in capital cases, where the proof of guilt is evident or presumption great; but we are not called upon to define more particularly the practice or controlling features in such cases generally; for here a trial by jury was had, evidence produced on both sides, resulting in a verdict of ac quittal, though because of error in the trial, 1. COVENANTS 92 BREACH FOR PRIVILEGE OF REPURCHASE. COVENANT A covenant in a conveyance of wharf property not to convey the premises without giving the assignee of the vendor an opportunity of purchasing it on agreed terms is violated by 99 years, with privilege of renewal for a sima lease executed by the purchaser's devisee for ilar period. 2. CoVENANTS 68-PERSONAL COVENANTS -PRIVILEGE OF REPURCHASE. A contract whereby the owner of wharf property agrees not to sell it to any person other than the grantor from whom it was acquired without first offering it to such grantor at an agreed price is not personal, notwithstanding that words of inheritance and the words "heirs and assigns," set out after the names of the parties in the beginning of the contract, are not repeated after such names in the remaining portion. 3. COVENANTS 79(1)—ASSIGNABILITY—Or TIONS. as decided by this court on the state's exceptions, it proved to be a mistrial. Such a mistrial is to be considered as a circumstance extraordinary in character, which is of much force in determining whether she shall be admitted to bail. It is generally considered as sufficiently favorable to the accused to warrant the court, in the exercise of sound discretion, in admitting a prisoner to bail, and we so consider it in this case. Had the county court exercised its discretion in determining the question, very like-signable. ly we should leave the matter as there determined, let it be either way, without fur- 4. WILLS 839-LIABILITY OF DEVISEES ther consideration. But the court did not so dispose of the question. It decided against the relator as a matter of law. This it could not lawfully do. The relator was entitled to the benefit of the court's judicial discretion, and, it not being accorded her, she was deprived of her right in that behalf. A covenant by a purchaser of wharf property not to sell the premises to any person other than the grantor without first offering it to such grantor at an agreed price is in its nature as COVENANTS OF TESTATOR-FORM-NECESSITY A covenant by the purchaser of wharf property, giving an option of purchase on agreed terms to the grantor, made by the covenantor "for himself, his heirs and administrators," binds his devisee notwithstanding the omission of the word "assigns." 5. COVENANTS WITH NOTICE. (107 A.) 84-LIABILITY-ASSIGNEES [ tor an opportunity to repurchase it on certain terms, the covenant was not removed from the operation of the rule against perpetuities as a continuing option merely because the right to repurchase continued for six months only after notice by the owner, since it was nevertheless an attempt to create a contingent future interest. The rule that a covenant made by an owner of land will not, except in the case of a lease, burden the land so as to bind his assignee is not applicable to assignees who take with notice. 6. PERPETUITIES LAW RULE. 3-STATUTES-COMMON The common-law rule against perpetuities was in existence in Connecticut long before the passage of the statute of perpetuities in 1784. 7. PERPETUITIES 1-STATUTES AGAINSTINTENT. The statute against perpetuities, as well as the common-law rule, was aimed against the unreasonable continuance of that sort of indirect restraint on alienation which accomplished its purpose by the creation of future interests. 8. PERPETUITIES 4(4)-INSTRUMENTS SUBJECT TO RULE "DEED." A covenant by the owner of wharf property, giving an option of purchase to the person from whom the property was bought, held a deed subject to the statute against perpetuities, a deed being a writing or instrument under seal, and delivered by the parties, and also being a general name legally applicable to a variety of instruments and obligations, but in common speech appropriated to a writing for the conveyance of land. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Deeds.] 9. PERPETUITIES 4(1)-INSTRUMENTS SUBJECT TO RULE-EQUITABLE RIGHTS. Where a contract raises an equitable right in property which the obligee can enforce in chancery by a decree for specific performance, such equitable right is subject to the rule against perpetuities. 10. DEEDS~133(2)—CONTINGENT AND VESTED INTEREST-OPTIONS-"VESTED REMAINDER." Where the purchaser of wharf property covenanted not to sell it without first giving the grantor an opportunity to purchase it on agreed terms, the interest of such former owner and his heirs and assignees is contingent and not vested; a vested remainder being one where the remainderman is certain to come into possession immediately upon the determination of the decedent's estate. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Vested Remainder.] 11. PERPETUITIES 4(1)-CONTINUING OPTION TO PURCHASE-VALIDITY. 14. PERPETUITIES 4(2)-CONTINUING OPTIONS TO PURCHASE-CONTINGENT FUTURE INTERESTS. A contract, providing that the owner of wharf property will not sell the premises to any person other than his immediate grantor without first offering them to him at an agreed price, he to have six months in which to accept such offer, being a grant of a continuing option of purchase limited in time, is void ab initio as attempting to create a contingent future interest which may not vest within the period limited by the rule against perpetuities. Gager, J., dissenting in part. Appeal from Superior Court, Fairfield County; Howard J. Curtis and William M. Maltbie, Judges. Action by the H. J. Lewis Oyster Company against Lucy T. West and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded, with directions. The action is based on a covenant, Exhibit A, executed January 31, 1888, by Pehr F. West in the manner prescribed for conveyances of land. It recites the amicable adjustment of a controversy formerly existing between the parties, in respect of a lease and agreement for sale of the premises in question, made between Henry J. Lewis and a firm of which West was a member, and that "as part of said adjustment said Lewis has this day conveyed by warranty deed said premises [describing them] to said West for the sum of twenty-five hundred (2,500) dollars, paid by said West to said Lewis: Now, therefore, this agreement witnesseth, that in consideration of the foregoing; and for the further consideration of one dollar in hand paid by said Lewis to said West, the receipt whereof is hereby acknowledged. the said Pehr F. West hereby covenants and agrees for himself, his heirs, executors and administrators to and with the 4(1)-CONTINUING OP- said Henry J. Lewis, his heirs and assigns as follows, to wit: In the event that the said West shall at any time hereafter sell all his A contract which attempts to grant a continuing option of purchase unlimited in point of time is void ab initio, because it attempts to create a contingent future interest which may not vest within the period limited by the rule against perpetuities. 12. PERPETUITIES TIONS. Where purchaser of wharf property covenanted not to sell it without giving the gran- oyster grounds in the sound and harbor of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 1 Long Island Sound, that he will at the option of the said Lewis to be expressed within six months from the time he shall receive written notice from said West, that he, West, has sold said oyster grounds, reconvey by like warranty deed to said Lewis said dock and premises described herein for the sum of twenty-five hundred (2,500) dollars and such sum in addition thereto, as may be agreed upon between said Lewis and said West to be the fair value, at the time of such reconveyance of such permanent improvements as the said West may have made upon said premises subsequent to the purchase of the same from said Lewis, and if the said Lewis and said West cannot agree upon a fair value for said improvements, that each party shall select one appraiser, and the two thus selected shall select a third, and the appraisal of any two of said appraisers of the value of said improvements shall be binding upon said Lewis and said West; also that he, the said West or his legal representatives will not sell or convey said dock and premises herein described to any other party than said Lewis, without first giving to said Lewis an opportunity to purchase the same on the terms herein set forth, and that the said Lewis shall have six months from the time he shall receive written notice that said dock and premises are for sale, in which to determine whether he will purchase the same." The case presents two other questions. Whether the covenants in Exhibit A bind the assignees of West who take with notice, and, if so, whether the covenant is void under the statute against perpetuities in force in 1888. [2] On the face of the covenant the intent to bind West, his heirs and administrators, in favor of Lewis, his heirs and assigns, is plainly stated. It is argued that the covenants are personal, because the parties are subsequently referred to as "said Lewis" and "said West" without repeating the words of inheritance, except that once the The instrument was recorded on the phrase "West and his legal representatives" Bridgeport land records. In 1895 Lewis organized the plaintiff corporation and fransferred to it his oyster business and the premises on which it had been conducted. Lewis died in 1902 without disposing of his rights under Exhibit A by will, and all of his heirs at law have assigned to the plaintiff. In 1907 West died, leaving a will in which he devised the premises to the defendant Lucy T. West. In June Mrs. West executed a so-called lease, Exhibit B, of the premises to the defendant Gottlieb for the term of 99 years at the agreed rental of $25,000 payable in the course of 10 years, with the privilege of renewal for another term of 99 years at an agreed rental of $1 for the additional term of 99 years. This instrument was expressed to be subject to possible rights of the heirs and assigns of Lewis under Exhibit A. occurs. Some authority for making this claim may be found in Clark v. Devoe, 124 N. Y. 120, 26 N. E. 275, 21 Am. St. Rep. 652, but with great respect we think that such a result violates the ancient rule of construction that "The law being the judge of an act, deed or bargain, consisting of divers parts, containing the will and intent of the parties, all tending to one end, doth judge of the whole, and gives every part his office to make up that intent, and doth not break the words in pieces." Earl of Clanricard et ux. v. Sidney, Hov. 275, quoted in Davis v. Lyman, 6 Conn. 249, 252; Easterbrook v. Hebrew Ladies' Orphan Asylum, 85 Conn. 289, 295, 82 Atl. 561, 41 L. R. A. (N. S.) 615. [3] The covenant in question is in its nature assignable. "The distinguishing feature of a real covenant is that it may be broken The superior court found that the defend- at a future time, and it is this quality which ant West intended by Exhibit B to convey renders it assignable.” 1 Swift's Dig. 370. all her interest in the premises and to termi- All parts of the covenant may be reconciled nate the plaintiff's right of purchase under by construing the words "said Lewis" as Exhibit A, and that the defendant West had referring to the antecedent phrase "Henry conveyed the premises in attempted viola- J. Lewis, his heirs and assigns," contained tion of the covenant contained in Exhibit A. in the same sentence; and it is more reasonAn interlocutory judgment was entered, able to suppose that the parties used the setting aside Exhibit B, and directing the words "said Lewis" as a convenient abbredefendant to execute and deliver to the clerk viation for the antecedent phrase in the of the court a good and sufficient deed of same sentence than that they should first the premises to the plaintiff. Subsequently solemnly characterize the agreement as asthe value of the permanent improvements signable and then intentionally deprive it was fixed at $4,600, and the final judgment of that quality. directed the delivery of the deed to the plaintiff on the payment of $7,100 into court for [4] It is noted that the defendant West who takes as devisee out of the original cov (107 A.) The remaining question is whether the contract, which is unlimited in point of duration, is void under the statute of perpetuities in force in 1888. nant of West is made for himself, his heirs [ determine whether to purchase the property and administrators, omitting the word "as- had not started to run before this action was signs." The omission of this word has often brought. been held to be of no importance. "When the covenant extends to a thing in esse, parcel of the demise, the thing to be done by force of the covenant is quodammodo annexed and appurtenant to the thing demised and shall go with the land and bind the assignee although he be not bound by express words." Spencer's Case, 1 Smith Leading Cases, star page 68. For example, a lessor's covenant for the renewal of the lease binds the assignee of the reversion though assignees are not named in the covenant. 1 Swift, 358. [5] It was formerly held that a covenant made by the owner of the land would not, except in the case of a lease, burden the land so as to bind his assignee. But this rule does not apply to assignees who take with notice. 1 Smith Leading Cases, star page 102. In this case West covenants for himself, his heirs and administrators, intending thereby to incumber the land in their hands by an agreement for a conveyance on a contingency which may happen after his death. And Swift says: "For a covenant which runs and rests with the land, an action lies for or against the assignee at common law, for the land passes with the incumbrance, quia transit terra cum onere, although the assignee be not named in the covenant." 1 Swift, 158. It will be noted that Swift does not limit his statement to leases, probably because our recording system makes such a limitation unnecessary. What Swift says is particularly applicable to this case, for, as the preamble to the covenant states, the conveyance from Lewis to West and the covenant by West for a reconveyance, on the contingencies named, were parts of one transaction, described therein as the adjustment of the prior controversy in respect of the same premises. In equity West never owned the absolute fee. He took the premises incumbered by the covenant for a reconveyance and it would be inequitable and inconsistent with the limitations of his own title for him to claim the right to convey the premises to an assignee with notice, free from the equitable incumbrance to which it was subject in the hands of himself, his heirs, executors, and administrators. If he could give a clear title to such an assignee, he could get one himself by a conveyance from his assignee, and thus defeat the covenant. Whether the devise to Lucy T. West was a breach of the covenant need not be determined, for the finding is that the plaintiff has never had the notice or the opportunity to purchase to which it is entitled under Exhibit A, from which it follows that the six months within which the plaintiff might [6] For the purpose of assigning to the statute a somewhat different effect from that ordinarily attributed to the rule against perpetuities, it is claimed that the commonlaw rule never was a part of our law, until after the statute was repealed in 1895. This claim is answered by Fitch v. Brainerd, 2 Day, 189, where it is said: "Although the common law of England hath not, as such, nor ever had, any force here; yet in the progress of our affairs, whatever was imagined at the beginning, it long since became necessary, in order to avoid arbitrary decisions, and for the sake of rules, which habit had rendered familiar, as well as the wisdom of ages matured, to make that law our own, by practical adoption, with such exceptions as a diversity of circumstances and the incipient customs of our own country required." From the preface to Kirby's Report it is certain that the practical adoption above described took place long before 1784, when the statute was passed. Subsequently the common law has been referred to in our decisions as if it formed the background for the statute. Jocelyn v. Nott, 44 Conn. 59; Rand v. Butler, 48 Conn. 293, 299; St. John v. Dann, 66 Conn. 401, 404, 34 Atl. 110; Conn. Safe Deposit Co. v. Hollister, 74 Conn. 228, 232, 50 Atl. 750. In Belfield v. Booth, 63 Conn. 299, 304, 27 Atl. 585, 586, the statement is made, as if it were elementary, that "the common-law rule against perpetuities remains in full force in this state." And as late as Hoadley v. Hollister, 89 Conn. 270, 279, 93 Atl. 535, 539, in speaking of a claim that a trust created by the will of a testator who died in 1887 was invalid as embodying a trust for accumulation, we said: "The second proposition involves an appeal to the well-established common-law principle impliedly recognized by us in Woodruff v. Marsh, 63 Conn. 125, 137, 26 Atl. 846 [38 Am. St. Rep. 346], and in Connecticut Trust & Safe Deposit Co. v. Hollister, 74 Conn. 228, 232, 50 Atl. 750, that trusts for accumulation must be strictly within the limits of the rule against perpetuities and that, if such a trust exceeds those limits, it is void." A convincing demonstration that the common-law rule existed in this state before the statute is found in the fact that on the first occasion which arose after the repeal of the statute the common-law rule was applied in this court as a matter of course and without comment by court or counsel. Bates v. Spooner, 75 Conn. 501, 54 Atl. 305. It cannot therefore be successfully contended that our former statute was materially different in its purpose from the common-law rule. [ speech it is appropriated to a writing for "That statute was enacted in furtherance the conveyance of land." 1 Swift, 119, 120. of the ancient policy of this commonwealth, both as a colony and as a state, to promote the equal inheritance and free transmission of landed property, unhampered by complicated trusts or entailments enduring from generation to generation." Johnson v. Edmond, 65 Conn. 499, 33 Atl. 503. Prof. Gray says: "The tying up of property, the taking it out of commerce, can be accomplished either, first, by restraining the alienation of interests in it, or secondly, by postponing to a remote perind the arising of future interests." Gray, Perpetuities, § 118a. This language points clearly to the distinction between direct restraints on alienation which are invalid, when inconsistent with the legal incidents of the estate granted, though they operate for a day only, and indirect restraints on alienation which the law tolerates within the limits of the rule against perpetuities. It may be conceded that this covenant does not create a direct restraint on alienation of the kind above referred to; but the question remains whether it does not take property out of commerce "by allowing interests to arise on future contingencies beyond the control of the present holders." Gray, Perpetuities, § 603. [7] Our statute was aimed, as was the cominon-law rule, against the unreasonable continuance of that sort of indirect restraints on alienation which accomplished its purpose by the creation of future interests. "All estates must vest during the lifetime of some person in being, or the lifetime of the issue of some person in being." Jocelyn v. Nott, supra. "If the donor had provided that upon the cessation of use by the corporation, the land or its representative value in money should be paid to his descendants, this latter provision would" be void, "for the reason that a century might elapse before such cessation." Storrs Agricultural College v. Whitney, 54 Conn. 342, 344, 8 Atl. 141, 142. See, also, the other cases above cited. It is impossible to say that our statute was aimed at restraint on alienation to the exclusion of remoteness in vesting, for the test of its applicability to any case is remoteness, and this is the necessary result of its language. And as our statute pursued the same objects as the common-law rule, we may look to the decisions under that rule for assistance in the determination of this case. The statute as applied to wills includes gifts or personalty, and by analogy it would appear that the statute must cover the creation of estates in personalty by living persons as well as by will. At any rate, this covenant has been held to be a contract for the conveyance of land, which the court will specifically enforce by requiring the execution of a formal deed; and so for all purposes of creating a future interest it is a deed. Plaintiff claims that the covenant creates a contract right, and not an interest in the land. Gray, § 329, says: "The rule against perpetuities concerns rights to property only, and does not affect the making of contracts which do not create rights in property." The example he gives is of a warranty, which though it runs with the land creates no right in and is not a future limitation of any particular property. Then section 330 says: "When however a contract raises an equitable right in property which the obligee can enforce in chancery by a decree for specific performance, such equitable right is subject to the rule against perpetuities." [9] This would seem to be almost self-evi dent. If the rule of the statute applies only to interests in land which are enforceable by an action at law, and does not apply to interests in land which may be enforced in equity, it assumes the proportion of a mere technicality. As pointed out in Johnson v. Edmond, supra, the broad basis of the statute forbids the drawing of any technical distinctions which will enable equitable rights in property, enforceable by specific performance, to escape its operation. In London & S. W. Ry. Co. v. Gomm, 20 Ch. D. 562, Jessel, M. R., speaking of the option contract involved, said: "Whether the rule applies or not depends upon this, as it appears to me, Does or does not the covenant give an interest in the land? If it is a bare or mere personal contract, it is of course not obnoxious to the rule, but in that case it is impossible to see how the present appellant can be bound. He did not enter into the contract, but is only a purchaser from Powell who did. If it is a mere personal contract, it cannot be enforced against the assignee. Therefore the company must admit that it somehow binds the land. But if it binds the land it creates an equitable interest in the land. The cov-right to call for a conveyance of the land is an equitable interest or equitable estate. tion to any case of contract, but in my opinion It was suggested that the rule had no applicathe mode in which the interest is created is immaterial. Whether it is by devise or voluntary gift or contract can make no difference. The question is, What is the nature of the interest [8] It is not seriously denied that the enant in question is a "deed." That word has always been used in our law in two senses. "A deed is defined to be a writing or instrument under seal and delivered by the parties. The general name of deed is legally applicable to a variety of * |