Thomas v. Kelly.

estate antecedently vested. So far as the interest of W. H. Kelly is concerned, it would now make no difference whether the condition is to be regarded as precedent or subsequent.

If the latter, a title to the land vested at the death of the widow of the testator. But the event on which it must continue is the payment of the assessed value at the expiration of the credit. On failure to perform the condition, he loses the right to retain.

In Finley v. Hunter, 2 Strobh. Eq. 212, JOHNSTON, Ch., says: "Conditions precedent are such as are, from the nature of the case, or by express requirement, to be performed before the right to which they are annexed can attach or vest. Until they are performed, the right does not vest. Conditions subsequent are such as are to be performed after the right vests or attaches in law, and the general rule is, that the right which has already vested is terminated or divested by a failure to perform them."

The indefeasible right of Wm. H. Kelly did not depend on his mere entry on the land, or his execution of the notes, but did depend on the payment as the annual credits expired. In fact, the executors would have fully complied with their duty by allowing him to enter and hold after the appraisement of the value had been made and agreed to by him, even without requiring any evidence of his indebtedness. No sale of the plantation was to be made to him by the executors. He took, if he accepted of the conditions, directly under the will, and the payment of the money was one of them. To hold that he was to keep the land if he failed to pay the estimated value according to the directions of the will, would be in direct conflict with the intention of the testator, that he was "to have the right to it at the appraised value, if he choose to do so, at a credit of one, two and three years, in equal annual payments, without interest."

He cannot claim a benefit under the will without giving full effect to it, as far as he can. If the devise is affected with conditions, he must take it as it stands, or reject it.

Is there any thing in the will which even intimates an intention on the part of the testator that if the son failed, for want of disposition or ability, to pay the assessed value, the absolute title should still continue in him? Is it not clear that his design was to con. vert the land into money by the devise to the son, and if this purpose could not be thereby accomplished, then through a sale by the executors?

Thomas v. Kelly.

If it had been the intention of the testator that the son should take the land as an unconditional devise, why was its value to be assessed, and a credit given for the payment? The will does not provide for any account of advances made to the children. On the contrary, the testator declares that by property advanced and embraced in it, he had made his children nearly equal, and his desire to continue that equality is expressed.

The scheme, too, of the will, seems to favor that intent. In the disposition of his slaves, including those bequeathed to his wife for life, the son, John W. Kelly, whose devise was not subject to any condition, was excluded. We may well assume that it was, because the devise to him and his children was not incumbered with any condition.

The argument on the part of the appellee is, that W. H. Kelly did not decline to take the land, and that, therefore, one of the events on which the alternative disposition depended, did not occur. The power, however, of the executors to sell was not to be lost by his mere willingness to accept; it could not be extinguished by his acceptance and payment.

If no credit had been fixed by the will, the payment would have been a condition precedent to the vesting of the title; and is the enjoyment of the devise to be retained beyond the period at which the credit terminates, when the intent of the will is that its continuance shall depend on the payment by the devisee of the appraised value?

It cannot be contended that the acceptance of the notes amounted to payment. The authorities in this State are to the effect that a note taken does not amount to satisfaction, unless it is so agreed and understood by the parties; and unless such be the understanding, it is rather to be regarded as a memorandum or acknowledgment of the amount ascertained to be due. Barrelli, Torre & Co. v. Brown & Moses, 1 McC. 449; Costelo v. Cave & Bradley, 2 Hill, 528; Kelsey v. Holsted & Rosborough, 2 Rich. 244; Bank v. Bobo, 9 id. 318; Hext v. Fraser, 2 Strobh. Eq. 250.

The devise by the fifth clause to Mrs. Harriet S. Hodges, so far as it attaches terms and conditions on which the continuance of the proposed bounty was to depend, must be governed by the same construction we have given to the devise to the said W. H. Kelly, under the second clause.

It is ordered and adjudged, that so much of the decree of the

Johnston v. Charleston.

chancellor as declares that the plaintiffs have no lien on the plantation on which the testator resided at the time of his death, for the sum of $12,210, the amount at which it was appraised, and interest, and that they have no lien on the plantation devised to Harriet S. Hodges, for the payment of the $3,000 for which she was to account to the estate, be reversed.

It is also ordered, that the case be remanded to the Circuit Court for Union county, that such orders may be had as are necessary to carry out the judgment of this court now pronounced, and to give full effect to so much of the circuit decree as has not been made the subject of appeal.

WILLARD, J., and WRIGHT, J., concurred.

JOHNSTON V. CHARLESTON.

(3 S. C. 232.)

Municipal corporation — liability for failure to keep streets in repair.

Where a municipal corporation is charged by law with the duty of keeping in repair the streets and sidewalks within the corporate limits, want of ordinary care is the true measure of its liability, when it is charged with having caused the death of a foot passenger by its negligence in not keeping in repair a cellar door forming part of the surface of a sidewalk.

A

CTION by Mary Johnston, widow and administratrix of James Johnston, deceased, against the city council of Charleston, to recover damages for the death of the intestate, caused, as alleged, by the negligence of defendant in not keeping in safe and good repair a cellar door, forming part of the surface of a street within the city. So much of the case as relates to the questions considered by this court was this:

Queen street is a street within the corporate limits of the city o Charleston, having a sidewalk for foot passengers, part of the surfac of which consists of a cellar door on the premises of Mrs O'Neal On the 15th of March, 1870, the intestate was going along said sidewalk as a foot passenger, and, when he reached the cellar door, it broke under him, and he fell through it. His thigh was broken by the fall, and he died on the 21st of March, six days afterward.

VOL. XVI.-91

Johnston v. Charleston.

Evidence was given by the plaintiff for the purpose of prcving that the door was rotten and unsafe at the time of the accident, and by the defendant to prove that it was sound, safe and in good condition, and that it had been examined by the chief of police shortly before the accident, who discovered no unsoundness, and pronounced it sound, secure and safe.

At the conclusion of the argument, the counsel for defendant requested the presiding judge to charge as follows:

1. That the cellar door upon the sidewalk in Queen street, where James Johnston is alleged to have been injured, was a lawful structure, that is, it was lawful for the city council to have or permit a cellar door there.

2. That if the jury find that the injury to said Johnston occurred from a latent defect in said door, then the city council cannot be held responsible to the plaintiff for any injury to said Johnston, unless the city council had express notice of such defect.

3. That the city council, without express notice, cannot be held responsible for any defect in said door, unless the defect was so notorious as to be evident to all who had occasion to pass that place.

4. That the city council cannot be held responsible unless the accident occurred wholly through their negligence, and in no part through the negligence of said Johnston.

5. That as to the safety of said cellar door the city council were bound to exercise only ordinary care and diligence.

Thereupon, the court charged as follows:

Gentlemen of the Jury: The fact of your going to visit these premises has made my observations upon the law few and simple.

The court will say that that cellar door was a lawful structure; that it was lawful for the city council to put it there. And, also, that, in case any latent defect existed, the council will not be responsible. But what is a latent defect? You have been to see that cellar door and can judge. A latent defect is one that cannot be discovered by a careful examination. Suppose the city council appointed an improper officer to go and see that door, and he merely looked at the outside, and there was a defect in the inside. That would not be a sufficient examination to relieve the city council, if there was such a latent defect. If, by a careful observation, it could not be discovered, then the city council is not responsible; tut & mere casual observation, if there was a defect existing in that door, which, by careful observation, could be discovered, will not relieve

Johnston v. Charleston.

the city council of their responsibility; they would then be responsible.

As to the request of counsel for the defense, that the court shall charge that this defect must be so notorious that all passers-by can observe it, that is not good law, gentlemen of the jury. If a defect existed in this cellar door, which, by careful observation (which the city council was bound to give), could have been seen, and an accident had occurred thereby, then the council are responsible; otherwise they are not responsible.

As to the fourth request by the counsel for the defense, that if the accident occurred by the fault or neglect of the deceased, why, certainly, he must answer for his own fault. But there is nothing in the testimony to show that. There is nothing in the testimony to show that the accident occurred from any fault or neglect of this unfortunate man. But you might consider this question, and if the jury think that because he died, therefore greater damages ought to be given him, then, you can take into consideration the fact that, perhaps, he may have contributed to his death, but not to the accident.

I don't know whether it is necessary for me to say that the city council is liable for ordinary or only for extraordinary care; but in this particular case, if any defect exists in that cellar door, which a careful examination would discover, they are liable. And it was the duty of the city council to examine these bars, to see that they were strong enough.

The defendants herein excepted to the refusal to charge as requested, and also to the charge, as follows:

1. They except to that portion of said charge, whereby the jury were instructed that "a latent defect is one that cannot be discov. ered by a careful examination."

2. They except to that portion of said charge whereby the jury were instructed that, if there were a defect in the cellar door, which, by careful observation, could be discovered, a casual observation would not relieve the city council of responsibility.

3. They except to that portion of said charge whereby the jury were instructed that it was the duty of the city council to examine the bars (under the door) to see that they were strong enough.

4. And these defendants except to the refusal of the court to charge as requested, as follows: That the city council, without express notice, cannot be held responsible for any defect in said