marriage is a precedent condition, and, till that happens, no estate (i) is vested in A. Or, if a man grant to his lessee for years, that upon payment of a hundred pounds within the term he shall have the fee, this also is a condition precedent, and the fee simple does not pass till the hundred pounds be paid (k). But, if a man grant an estate in fee simple, reserving to himself and his heirs a certain rent; and that if such rent be not paid at the times appointed, it shall be lawful for him and his heirs to re-enter, and avoid the estate: in this case the grantee and his heirs have an estate upon condition subsequent, which is defeasible if the condition be not strictly performed (1). (277) To this class may also be referred the ancient fee simples conditional which existed at the common law before the statute de Donis (m). Thus, an estate to a man and his heirs, tenants of the manor of Dale, is an estate on condition that he and his heirs continue tenants of that manor. And so, if a personal annuity be granted at this day to a man and the heirs of his body, as this is no tenement within the statute, it remains, as at common law, a fee simple on condition that the grantee has heirs of his body. Upon the same principle depend all the determinable estates of freehold, which we mentioned (i) Show. Parl. Cas. 83, &c. (m) See pp. 109, 110, 111. Estates on condition strictly so called are not, except in leases or terms, now very common, modern conveyancers preferring usually to rely upon an agreement, enforceable specifically in a court of equity, for reconveyance on performance of the condition; much of the learning on these matters is therefore now antiquated, but inasmuch as it is not entirely obsolete, and is sometimes applicable under the provisoes for re-entry contained in modern leases, it is still worthy of notice. hill v. Saratoga and Washington R. R. Co., 20 Barb. 455, 460; Blacksmith v. Fellows, 7 N. Y. (3 Seld.) 401, 414; 19 How. (U. S.) 366; Parmelee v. Oswego and Syracuse R. R. Co., 6 N. Y. (2 Seld.) 74, 80; Rogan v. Walker, 1 Wis. 527; Burnett v. Strong, 26 Miss. (4 Cush.) 116; Sheppard v. Thomas, 26 Ark. 617. Conditions subsequent, especially when relied on to work a forfeiture, must be created by express terms or by clear implication, and they are strictly construed. Hadley v. Hadley Manuf. Co., 4 Gray, 140, 145; Ludlow v. New York and Harlem R. R. Co., 12 Barb. 440; Gadberry v. Sheppard, 27 Miss. (5 Cush.) 203; Hoyt v. Kimball, 49 N. H. 322; Varis v. Renshaw, 49 Ill. 425. And, therefore, where a condition applies in terms to a grantee or lessee without mentioning his heirs, executors or assigns, the condition cannot be broken after the death of such grantee or lessee. If heirs and executors are named, but not assigns, the condition will not be broken by any act or omission of an assignee. Page v. Palmer, 48 N. H. 385; Emerson v. Simpson, 43 id. 475; see Gadberry v. Sheppard, 27 Miss. (5 Cush.) 203; Bradstreet v. Clark, 21 Pick. 389. Where no particular time is specified for the performance of a condition it ought to be complied with or performed in a reasonable time. Hamilton v. Elliott, 5 S. & R. 375; Hayden v. Stoughton, 5 Pick. 528; Ross v. Tremain, 2 Met. 495. (277) The same rule prevails in this country. Van Rensselaer v. Ball, 19 N. Y. (5 Smith) 100: Central Bank of Troy v. Heydorn, 48 N. Y. (3 Sick.) 260. A condition in a deed that the conveyance shall be void unless a specified sum of money is paid by a particular day, is valid, and the non-payment at that time will forfeit the estate. Brannan v. Mesick, 10 Cal. 95, 108. A devise to B and C of a certain estate " they jointly and severally paying to E and F" a specified sum of money "within one year after the testator's decease," creates an estate which is defeasible upon a failure to pay the money according to the condition. Wheeler v. Walker, 2 Conn. 196. A conveyance of land upon the condition that the grantee shall support a particular person in a specified manner is valid, and an omission to support that person in the manner prescribed will forfeit the estate. Willard v. Henry, 2 N. H. 120. in the eighth chapter: as, durante viduitate, &c.: these are estates upon condition that the grantees do not marry, and the like. And, on the breach of any of these subsequent conditions; by the failure of these contin[* 295] gencies; by the grantee's not continuing tenant of the manor of Dale, by not having heirs of his body, or by not continuing sole; the estates which were respectively vested in each grantee are wholly determined and void. (278) A distinction is however made between a condition in deed and a limitation, which Littleton (n) denominates also a condition in law. For when an estate Distinction is so expressly confined and limited by the words of its creation, between condi- that it cannot endure for any longer time than till the contingency happens upon which the estate is to fail, this is denominated a limitation (o): as when land is granted to a man so long as he is parson of Dale, or while he continues unmarried, or until out of the rents and profits he shall have made 5007. and the like (p). In any such case the estate determines as soon as the contingency happens (when he ceases to be parson, marries a wife, or has received the 5007.), and the next subsequent estate, which depends upon such determination, becomes immediately vested, without any act to be done by him who is next in expectancy. (279) But when an tion in deed and in law. (n) Sect. 380; 1 Inst. 234. (0) Often also, at the present day, called a conditional limitation; but neither this term, nor that used in the text, has acquired a per- (278) Although the law permits a condition which imposes a reasonable restraint upon marriage, as that the grantee or devisee shall not marry without the consent of parent, guardian or trustee; or not marry a particular person, or a native of a particular country, or the like; yet a condition subsequent in general restraint of marriage is void. A devise to a son and a daughter of the testator, with a provision that “if the said daughter should marry or die," the land should belong exclusively to the son, is a condition which is void because in restraint of marriage. Williams v. Cowden, 13 Mo. 211; Morley v. Rennoldson, 2 Hare, 570. As between husband and wife the law permits either of them to devise property to the other, and to qualify the devise by a condition that if the survivor marries, the devise shall be void and of no effect after such marriage, and, therefore, a grant or a devise by a husband to his wife upon condition that she shall not marry again after his death, is valid, and upon such subsequent marriage the estate so given will be forfeited. Gough v. Manning, 26 Md. 347; Little v. Birdwell, 21 Texas, 597; Doyal v. Smith, 28 Ga. 262; Dumey v. Scheffler, 24 Mo. 170; Vaughn v. Lovejoy, 34 Ala. 437; Pringle v. Dunkley, 14 Sm. & M. 16; Commonwealth v. Stauffer, 10 Penn. St. 385; Lloyd v. Lloyd, 2 Sim. N. S. 255; 16 Jur. 306; 10 Eng. Law & Eq. 139; see Dumey v. Scheffler, 24 Mo. 170, for a full discussion of the question. (279) A condition determines an estate after breach, upon entry or claim by the grantor or his heirs, or the heirs of the devisor. A limitation marks the period which determines the estate, without any act on the part of him who has the next expectant interest. Upon the happening of the prescribed contingency, the estate first limited comes at once to an end, and the subsequent estate arises. If it were otherwise, it would be in the power of the heir to defeat the limitation over, by neglecting or refusing to enter for breach of the condition. This distinction was originally introduced in the case of wills, to get rid of the embarrassment arising from the rule of the ancient common law, that an estate could not be limited to a stranger, upon an event which went to abridge or destroy an estate previously limited. A conditional limitation is therefore of a mixed nature, partaking both of a condition and of a limitation; of a condition, because it defeats the estate previously limited; and of a lim. itation, because upon the happening of the contingency, the estate passes to the person having the next expectant interest, without entry or claim. Proprietors of the Church, etc. v. Grant, 69 Mass. (3 (ray) 142, 147. Words of limitation mark the period which is to determine the estate; but words of con estate is, strictly speaking, upon condition in deed (as if granted expressly upon condition to be void upon the payment of 407. by the grantor, or so that the grantee continues unmarried, or provided he goes to York, &c. (q)), the law permits it to endure beyond the time when such contingency happens, unless the grantor or his heirs or assigns take advantage of the breach of the condition, and make either an entry or a claim in order to avoid the estate (r). (280) Yet, though *strict words of condition be used in [* 296] the creation of the estate, if on breach of the condition the estate be limited over to a third person, and does not immediately revert to the grantor or his representatives, (as if an estate be granted by A. to B., on condition that within two years B. intermarry with C., and on failure thereof then to D. and his heirs), this the law construes to be a limitation and not a condition (s): because, if it were a condition, then, upon the breach tation and con- thereof, since a condition of entry can only be reserved in favour of the grantor and his heirs, only A. or his representatives could Between a limi dition. (q) Ib. 42. (r) Litt. s. 347; Co. Litt. 214 b; stat. 32 Hen. '8, c. 34. In the case of a condition to determine a freehold estate, entry or claim is requisite; but in case of a condition in a lease for years, declaring that it shall be void in a certain event, the reversioner may treat the term as having absolutely determined when the event happens, without any entry; but if he recognize the existence of the term, after the event, he cannot subsequently take advantage of the forfeiture; nor can the tenant treat his lease as having become void dition render the estate liable to be defeated in the intermediate time, if the event expressed in the condition arises before the determination of the estate, or the completion of the period described by the limitation. The one specifies the utmost time of continuance, and the other marks some event, which, if it takes place in the course of that time, will defeat the estate. The material distinction between a condition and a conditional limitation consists in this: That a condition does not defeat the estate, although it be broken, until entry by the grantor or his heirs; and when the grantor enters, he is in as of his former estate. His entry defeats the delivery made on the creation of the original estate, and, consequently, all subsequent estates or remainders dependent thereon. 4 Kent's Com. 127; see, also, Den v. Hunce, 6 Halst. 244; Fifty Associates v. Howland, 11 Metc. 99; Mayor, etc., of N. Y. v. Stuyvesant, 17 N. Y. (3 Smith) 34; Clark v. Jones, 1 Denio, 516; Tallman v. Snow, 35 Me. 342. (280) Until re-entry by the grantor, or his heirs, for the breach of a condition, the estate is not forfeited, but remains in the grantee. A mere neglect to perform the condition is not sufficient to work a forfeiture. Fonda v. Sage, 46 Barb. 110, 123; 48 N. Y. (3 Sick.) 173; Tallman v. Snow, 35 Me. 342; Chesapeake, etc., Canal Co. v. Baltimore, etc., R. R. Co., 4 Gill & Johns. 1, 121; Willard v. Henry, 2 N. H. 120; Warner v. Bennett, 31 Conn. 468, 477; Throp v. Johnson, 3 Ind. 343. This right of entry for a breach of a condition may be waived by the party entitled to make such entry. Ireland v. Nichols, 46 N. Y. (1 Sick.) 413; Bleecker v. Smith, 13 Wend. 530; Jackson v. Allen, 3 Cow. 220; Coon v. Brickett, 2 N. H. 163; Sharon Iron Co. v. City of Erie, 41 Penn. St. 341, 349; Chalker v. Chalker, 1 Conn. 79; Hooper v. Cummings, 45 Me. 359. The right to enter for a condition broken is one which cannot be aliened or assigned, or pass by a grant of the reversion at the common law. Van Rensselaer v. Ball, 19 N. Y. (5 Smith) 100, 103; Hooper v. Cummings, 45 Me. 359; Cross v. Carson, 8 Black f. 138; Southard avoid the estate by entry; and if he or they entered, the seisin upon which the limitation was founded would be defeated and A. or his heirs would be in of his former seisin and estate (t). Whether, therefore, A. took advantage of the condition or neglected to do so, the limitation in D.'s favour would equally fail. But, when it is a limitation, the estate of B. determines, and that of D. commences, and he may enter on the lands the instant that the failure happens. So also, if a man by his will devises land to his heir at law, on condition that he pays a sum of money, and for non-payment devises it over, this shall be considered as a limitation; otherwise no advantage could be taken of the non-payment, for none but the heir himself could have entered for a breach of condition (u). * We may here notice that anciently, if the lessor of a freehold or leasehold estate upon condition granted away his reversion, the right Grantee of a a term has grantor. [*297] to re-enter upon breach of the condition was gone, for the reversion upon stranger could not enter, and the lessor having parted with his same rights as reversion could not enter, not possessing his former estate (x). But, by a statute passed in the year 1540 (y) the grantee of the reversion upon a lease for years or for life by indenture, has the same power of re-entry upon breach of conditions contained in the lease as the lessor or his heirs (z). In all these instances of limitations or conditions subsequent, it is to be observed that, so long as the condition, either express or implied, either in deed or in law, remains unbroken, the grantee may have an estate of freehold, provided the estate upon which such condition is annexed be in itself of a freehold nature; as if the original grant express either an estate of inheritance, or for life, or no estate at all, which is constructively an estate for life. For the breach of these conditions being contingent and uncertain, this uncertainty preserves the freehold (a); because the estate is capable to last forever, or at least for the life of the tenant, supposing the condition to remain unbroken. But where the estate is at the utmost a chattel interest, which must determine at a time certain, and may determine sooner, (as a grant for ninety-nine years, provided A., B., and C., or the survivor of them, shall so long live), this still continues a mere chattel, and is not, by such its uncertainty, ranked among estates of freehold. (t) Litt. s. 347. (u) Cro. Eliz. 205; 1 Roll. Abr. 411. The student should bear in mind, that the rules as to conditions, remainders, &c., laid down in this part of the work, have reference to estates subsisting at common law, and do not apply to executory limitations under the statutes of uses and wills, of which we shall (y) 32 Hen. 8, c. 34. v. Central R. R., 2 Dutch. 13; Kellam v. Kellam, 2 Pat. & Heath, 357; Morris v. Milner, 20 Ga. 563. Conditions which tend to avoid estates are not regarded with favor by the courts, and they are therefore construed strictly as against the lessor or grantor. Jackson v. Silvernail, 15 Johns. 278; Livingston v. Stickles, 7 Hill, 253; Lynde v. Hough, 27 Barb. 415, 423; Southard v. Central R. R., 2 Dutch. 13; Thompson v. Thompson, 9 Ind. 323; Hadley v. Hadley Manuf. Co., 4 Gray, 140; Emerson v. Sampson, 43 N. E 475. Conditions impossible, or contrary to law. These express conditions, if they be impossible at the time of their creation, or afterwards become impossible by the act of God or the act of the feoffor himself, or if they be contrary to law, or repugnant to the nature of the estate, are void. (281) In any of which cases, if they be conditions subsequent, that is, to be performed after the [* 298] * estate is vested, the estate shall become absolute in the tenant. (282) As, if a feoffment be made to a man in fee simple, on condition that, unless he goes to Rome in twenty-four hours, or unless he marries with Jane S by such a day, (within which time the woman dies, or the feoffor marries her himself), or unless he kills another, or in case he alienes in fee; that then and in any of such cases the estate shall be vacated and determined: here the condition is void, and the estate made absolute in the feoffee. For estate becomes he has by the grant the estate vested in him, which shall not be defeated afterwards by a condition either impossible, illegal, or repugnant (b). But if the condition be precedent, or to be performed before the estate vests, as a grant to a man that, if he kills another or goes to Rome in a day, he shall have an estate in fee; here, the void condition being precedent, the estate which depends thereon is also void, and the grantee shall take nothing by the grant; for he hath no estate until the condition be performed (c). If subsequent, absolute in feoffee. If precedent, grant void. We pass on to some particular species of estates defeasible upon condition (b) Co. Litt. 206. The condition against alienation has been often tried, but of course ineffectually, it being contrary to the principles and policy of law that a man should have property and not to be able to aliene it. See ante, p. 213. A solitary exception to this rule (281) Conditions may be impossible, unlawful, or incompatible with the nature of the estate to which they are annexed. They are not sustained when they are repugnant to the nature of the estate granted, nor when they infringe upon the essential enjoyment and the independent rights of property, and when they manifestly tend to the public inconvenience. A condition annexed to a conveyance in fee, or by a devise, that the purchaser or the devisee shall not alien, is unlawful and void. Schermerhorn v. Negus, 1 Denio, 448; Oxley v. Lane, 35 N. Y. (8 Tiff.) 340, 346; Walker v. Vincent, 19 Penn. St. 369; Brothers v. McCurdy, 36 id. 407; Taylor v. Sutton, 15 Ga. 103; Blackstone Bank v. Davis, 21 Pick. 42. But a condition against alienation may be valid in a grant or lease for life or for years because the limited nature of the interest lessens the inconvenience, and there is no tendency to a perpetuity. 4 Kent's Com. 131; see note to Dumpor's Case, 1 Smith's Lead. Cas. (101) 117, 7th Am. ed. Property granted or devised for the support of one whom the grantor or devisor elects as the object of his bounty, may be given subject to the condition that such beneficiary shall not alien it or apply it to other purposes; and the creditors of such beneficiary cannot sell the property upon executions issued against him or his property. Campbell v. Foster, 35 N. Y. (8 Tiff.) 361; 16 How. 275; Locke v. Mabbett, 3 Abb. Ct. App. 68; 2 Keyes, 457; Perkins v. Dickerson, 3 Gratt. 335; Hill v. McRae, 27 Ala. 175; Eyrich v. Hattrick, 13 Penn. St. (1 Harris) 488; Pope v. Elliott, 8 B. Monr. 561; Beaman v. States, 2 Pick. 463; Rife v. Geyor, 59 Penn. St. 393; White v. White, 30 Vt. 338. How far these decisions conflict with the rule that creditors are entitled to the benefit of every right which the debtor could enforce is discussed in Nichol v. Handley, 10 Gratt. 336; Blackstone Bank v. Davis, 21 Pick. 42; Hall v. Tufts, 18 id. 455; Brandon v. Robinson, 18 Vesey, 429; 1ullett v. Armstrong, 4 Mylne & Craig, 377. (282) As to what conditions are precedent, and what subsequent, and as to their validity, Bee, ante, note 276. |