LAW OF BOOK I. CORPOREAL HEREDITAMENTS. CHAPTER XIV. ESTATES UPON CONDITION. 1. Condition as a quality of estates. 2. Of the various kinds of condition. 3. What terms imply a condition. 4. Conditions when precedent or subsequent. 5. Conditions subsequent must be express. 6. Of conditions impossible, unlawful, &c. 7. Conditions restricting conveyances. 8. Effect of conditions precedent if unlawful, &c. 9. Distinctions between conditions precedent and subsequent, when unlawful, &c. 10. When conditions are to be performed. 11. Of conditions in law, or implied conditions. 12. Who may enforce a condition, and who perform it. 13. How conditions may be enforced. 14. Who may enter and defeat an estate. 15. When a right to enter must be reserved. 16. Actual entry when necessary to enforce conditions. 17. Conditions enforced, though no injury done. 18. When breach of condition is excused. 19. Effect of waiver of breach of condition. 20. Effect of mere acquiescence. 21. When equity relieves on a breach of condition. 22, 23. When courts will not relieve. 24, 25. Nature of estate not affected by being conditional. VOL. II. 27. Of conditions and conditional limitations. 28. Conditional limitation, how expressed. 29. To what estates this term applies. 30. Conditional limitation, how created. 81. Conditions and conditional limitations as perpetuities. 1 * 1. ANOTHER quality of the estates which have heretofore been considered, is the circumstance that they may [*445] be affected by some condition upon or by which they may commence, be enlarged, or defeated. Thus an estate in fee or for life, for instance, may be qualified in this way; and when treating of this subject, it is only necessary to keep in mind the distinction that may exist between an estate in respect to its quantity or duration, and its qualities.1 An estate upon condition may, in general terms, be defined to be one which may be created, enlarged, or defeated, by the happening or not happening of some contingent event.2 A condition is a qualification or restriction annexed to a conveyance, and so united with it in the deed as to qualify or restrain it. It cannot, however, be created by parol if the deed is absolute in its terms. And the word "conditioned in a deed may have the effect only of a restriction in the mode of using the granted premises, as where A granted land to B conditioned that no building other than the one described should be erected on the premises, it was held not to create an estate upon condition nor a covenant, but to limit the uses which might be made of the land. And as the grantor owned adjacent lands to the granted premises, which were to be affected by the uses made of these, it was held that the restriction barred the grantee and all persons claiming under him. And where the deed, though in usual form, recited that it was understood by the parties that the premises were not to be used for any other than certain purposes expressed, as, for example, "a dépôt square," it was held to be a covenant, and not a condition. But it is sometimes difficult to determine in respect to estates created by devise, whether they are estates upon condition or trusts. If it be the first, the effect of a breach of the condition is to defeat the estate, and the heirs may come in and take it with all improvements made upon it, and discharged of all intermediate charges and incumbrances. But if the limitations in the devise are to be taken as directions to trustees, explaining the terms upon which the devise is made, it will be taken to be a trust, which those who take the estate are bound to perform, and, in case of a breach, a court of equity will interpose and enforce performance, and, by thus preserving the estate, carry out the charity or bounty of the testator. And what the old law treated as a devise upon condition, courts would now, in almost every case, construe a devise in fee upon trust. And in this way, instead of the heir taking advantage of the condition, the cestui que trust would compel an observance of the trust. And the question of intent would be inquired into as gathered from the whole devise, although the testator may have used the word "proviso," ordinarily a word of condition, in connection with his devise.1 2. The condition which is to affect the estate may be express or implied, and it may be precedent or subsequent. An express condition, otherwise called a condition in deed, is one declared in terms in the deed or instrument by which the estate is created. An implied condition, or a condition in law, is one which the law implies, either from its being always understood to be annexed to certain estates, or as annexed to estates held under certain circumstances. Conditions precedent are, as the term implies, such as must happen before the estate dependent upon them can arise or be enlarged, while conditions subsequent are such as, when they do happen, defeat an estate already vested.2 3. Among the forms of expression which imply a condition in a grant, the writers give the following: "on condition""provided always"—"if it shall so happen or "so that he the grantee pay, &c., within a specified time;" and grants made upon any of these terms vest a conditional estate in the grantee. And it is said other words make a condition, if there be added a conclusion with a clause of re-entry, or without such clause, if they declare that, if the feoffee does or does not do such an act, his estate shall cease or be void.3 1 Stanly v. Colt, 5 Wall. U. S. 165; 1 Sugd. Powers, 7th Lond. ed. 123. 2 Co. Lit. 201 a; 2 Flint, Real Prop. 227, 228; Vanhorne's Lessee v. Dor rance, 3 Dall. 317. 3 Lit. §§ 328, 329, 330; Wheeler v. Walker, 2 Conn. 201; Com. Dig. Condition, A. 2. See also 2 Wood, Conv. Powell's ed. 505, 512, et seq. If a covenant be followed by a clause of forfeiture, if it is broken it will be construed to be a condition. And courts always construe clauses in deeds as covenants rather than conditions, if they can reasonably do so. Where the condition was that if the grantee did a certain thing he should pay the grantor so many dollars, and then have a title to convey, and he broke the condition by failing to do the required act, but tendered the money, it was held to be a condition subsequent, which the grantee had so far performed, that the grantor's right to enter for a breach was defeated. What will or will not constitute a condition in a deed is often a matter of nice construction by courts, and belongs [*446] rather to another * department of the law than that relating to the nature and incidents of estates upon condition. Words, moreover, often create a condition in a will which would not if made in a deed, as where in a will an intention is expressed in devising the land, that the devi see should or should not do certain things in respect to it, it may be construed as creating a conditional estate in him. But it is said, "if one makes a feoffment in fee" ea intentione, ad effectum, &c., that the feoffor shall do or not do such an act, these words do not make the estate conditional, but it is absolute notwithstanding. And yet where the grant is expressed to be for a specific or limited purpose, the land cannot be appropriated to any other. If it is, the grantor retains sufficient interest in the subject-matter of the grant to apply to the court of chancery to restrain such diversion. The grant of a lot of land to set a meeting-house thereon does not imply a condition. And "an estate upon condition cannot be created by deed, except where the terms of the grant will admit of no other reasonable interpretation." Therefore, reciting in the deed that it is in consideration of a certain sum, and that the grantee is to do certain things, is not an estate upon condition, not being in terms upon condition, nor containing a clause of re-entry or forfeiture. And yet these words may create a condition if a right of re-entry is reserved in favor o 1 Moore v. Pitts, 53 N. Y. 85. 2 Board, &c. v. Trustees, &c., 63 Ill. 204. 3 Warren v. Meyer, &c., 22 Iowa, 351. 4 Packard v. Ames, 16 Gray, 325. 5 Ayer v. Emery, 14 Allen, 69, 70. the grantor in case of failure to carry out the intention thus expressed. And the most that is now proposed, is to illustrate by examples the several classes of conditions above enumerated. Thus, an instance of a condition precedent would be a grant to A upon his marriage. So a lease to B for ten years, and if he pay the lessor £100 by or before a certain time, that he shall have the land to him and his heirs. In the one case the deed takes effect to create, in the other to enlarge, the estate, when, and not until, the prescribed event shall have happened.2 So where A granted land to B, reserving the pine timber thereon if he get it off by a certain time. Such parts of it as he did not get off by that time remained the property of the grantor. An instance of a condition subsequent would be a grant to A and his heirs, tenants of the manor of Dale, or to B so long as she should remain a widow. The estates in these cases vest subject to be divested in the one case upon the grantee's ceasing to be tenants of Dale, and in the other upon the marriage of the grantee. So a deed to one in which the grantor reserves to himself a rent, with a right to enter and defeat the estate if the rent shall be in arrear. A condition annexed to a conveyance in fee that the grantee shall pay the grantor or his heirs an annual rent, and in default the grantor may enter, is a good condition. In Rawson v. Uxbridge, the devise was of land to a town for a burying-place for ever, and was held not to be a condition at common law. But in Indiana, a grant of a lot of land was made to a town" for the purpose of erecting a tan-yard on it," and was held to constitute a condition subsequent, and the vendee having erected a tan-yard upon the premises, and maintained it for twenty-four years, the title was not defeated, though he then discontinued that use of the estate.8 1 2 Wood, Conv, Powell's ed. 513, 514; Shep. Touch. 123; Rawson v. Uxbridge, 7 Allen, 125; Co. Lit. 204 a; Cowper v. Andrews, Hob. 40 a, Dyer, 138; Doct. & Stud. Dial. 2, c. 34; Supervisors, &c. v. Patterson, 56 Ill. 119; Waters v. Breden, 70 Penn. 235. 2 2 Flint, Real Prop. 228; Lit. § 350. 3 Monroe v. Bowen, 26 Mich. 523. 5 Lit. § 325; Waters v. Breden, sup. 6 Van Rensselaer v. Ball, 19 N. Y. 100, 77 Allen, 125. 42 Flint, Real Prop. 229. Littleton, § 325. 8 Hunt v. Beeson, 18 Ind. 382. |