This case was decided in June 1860.

Action of contract on the sale of an estate, by which the defendant covenanted with the plaintiff that the estate was free from incumbrance.

This depended on the question whether an agreement entered into in 1845 by the defendant, then owner of the same estate in fee, with one Cummings, did create a demise and chattel real, containing a real interest in a valuable term carved out of the estate ; or whether it was executory, stipulating merely that the defendant would, by some suitable future act, raise and create such a term and chattel real. If the latter only, it was no incumbrance, and constituted no breach of the defendant’s covenant.

In examining the instrument in question, it appears, to us that *333the two terms of five years each embraced in it are two distinct terms, each having a distinct time both for its commencement and termination. The first was for five years, commencing at its date; though there was a stipulation in it for its earlier termination by surrender on certain notice, such notice was given and surrender made and accepted; so that, in our opinion, that first creation of a term may be laid out of the case.

It depends therefore wholly upon the terms of the second part of the agreement. Here one circumstance, somewhat peculiar, strikes us at the outset, that if this was a demise, it was by its terms not to commence till after the maker’s decease, and the descent cast of the estate which he then held.

We are not however disposed to question the power of an owner in fee, who has the general jus disponendi, to create a term for five or five hundred years, to commence in futuro, even after his own decease, so as in effect substantially to alienate the entire value of the estate, and thus, when the descent should be cast, subject the estate to the incumbrance of the term.

The first remark is, that as this would be of very rare occurrence — to create a present chattel real, constituting a valuable estate in possession, to commence at an indefinite future time — when it is so intended, the intention should appear in plain and manifest terms. Whereas, in this second clause, the language has no such phrase as “ let,” “ lease ” or “ demise ”; but the party agrees “ with said Cummings, his executors,” &c., “ that said Cummings, his heirs, executors,” &c., “ shall have the right to occupy,” &c. These words might, under certain relations of the parties to each other, and explained by the context, create a demise-; but they are not apt words for that purpose.

But there is another clause, which seems to us quite decisive: “ Said Traip hereby agrees to make suitable provision by will or otherwise, that this agreement shall be kept.” He recognizes it as an “ agreement,” in conformity with which some further act shall be done. Whereas, if the clause itself was a demise, and incumbrance, and created a term, nothing which the heir or administrator could do would be of any effect. If therefore the stipulation for this second demise for five years did not take *334effect by force of the agreement itself, then the estate was not subject to incumbrance when the defendant sold it.

The court are of opinion that the agreement itself did not constitute a present, actual creation of a term and incumbrance; and that the defendant is entitled to judgment.

Judgment for the defendant.