present tense, and no contrary interest appears, it imports an immediate interest, which vests in the devisee, upon the death of the testator, if no intermediate disposition is made of the estate. And a condition in such case, attached to a devise which may be performed at any time as well after as before vesting, will be regarded as a condition subsequent.1 10. But in a case of a conveyance upon condition, where a prompt performance thereof is necessary to give to the grantor, or the one who is to avail himself of the same, the whole benefit contemplated to be secured to him, or where its immediate fruition formed his motive for entering into the agreement, the grantee shall not have his lifetime for its performance, but must do it in a reasonable time.2 And this doctrine of a reasonable * time for performance has been [*450] applied in a variety of cases, as where, for instance, an estate was conveyed on condition that the grantee removed a mortgage outstanding upon it, but no time was fixed in which it was to be done, it was held that the condition` must be complied with in a reasonable time. In a case where the grant was of a strip of land by A to a railroad company, on condition that the road was finished by such a day, it was held that a present estate passed, and that the condition was a subsequent one. And where, as in the case above cited, a devise of a lot of land was made to a town upon condition that they erected a schoolhouse in a certain place, it was held that it must be done in a convenient time, or the estate would be forfeited.5 11. A condition in law, or one that is implied, as distinguished from an express condition, is such as is always annexed to certain estates, although not mentioned in the instruments creating them. Such, for instance, was the condition at common law annexed to every estate for life or years, that 1 Finlay v. King's Lessee, 3 Pet. 374-376; Co. Lit. 208 b, 209 a. 2 Hamilton v. Elliott, 5 S. & R. 375; Co. Lit. 208 b; Hayden v. Stoughton, 5 Pick. 528. 8 Ross v. Tremain, 2 Met. 495. See Stuyvesant v. The Mayor of New York, 11 Paige, Ch. 425. 4 Nicoll v. New York and Erie R. R., 2 Kern. 121. Hayden v. Stoughton, 5 Pick. 528; Allen v. Howe, 105 Mass. 241. the tenant should not attempt to create a greater estate than his own; so that if such tenant enfeoffed a stranger in fee, it was a ground of forfeiture.1 12. A condition, however, defeats the estate to which it is annexed only at the election of him who has a right to enforce it. Notwithstanding its breach, the estate, if a freehold, can only be defeated by an entry made, and, until that is done, it loses none of its original qualities or incidents. And any one who is interested in a condition, or in the estate to which it is attached, may perform it; and when it has once been [*451] performed, it is thenceforth gone for ever. And if a person in whose favor a condition is created once dispense with it, he cannot afterwards enter for a subsequent breach of the condition. If a condition be in the alternative, the one who is to perform it may elect which to perform. But when such election is made, it fixes the rights of the parties.5 But in respect to enforcing a condition it is often otherwise. Thus, where A conveyed parcels of land to sundry persons at different times, but inserted in the deed of each a similar condition against the use of certain trades, it was held that, though for a breach by one, no other grantee could have an action at law against him to enforce the condition, equity would enforce a performance of it. So where A purchased lands, but had the deed made to B, and B sold the same to a third party, and inserted in his deed a forfeiture of the estate if the purchaser erected any thing on the granted premises which would obstruct the view from A's house, it was held to create an equitable easement of prospect constituting a condition, upon a breach of which B might enter and defeat 1 Co. Lit. 215 a; 2 Bl. Com. 153. 21 Prest. Est. 48; Chalker v. Chalker, 1 Conn. 87; Canal Company v. Railroad Company, 4 Gill & J. 121; Phelps v. Chesson, 12 Ired. 194; Willard v. Henry, 2 N. H. 120; Winn v. Cole, Walker, 119; King's Chapel v. Pelham, 9 Mass. 501; Ludlow v. New York and Harlem Railroad, 12 Barb. 440; Tallman v. Snow, 35 Me. 342; Webster v. Cooper, 14 How. 501; Warner v. Bennett, 31 Conn. 477; Hubbard v. Hubbard, 97 Mass. 192. 8 Vermont v. Society, &c., 2 Paine, C. C. 548; 2 Crabb, Real Prop. 815. 4 Dickey v. M'Cullough, 2 W. & Serg. 100. See Dumpor's case, 4 Rep. 119. 5 Bryant v. Erskine, 55 Me. 155. 6 Barrow v. Richard, 8 Paige, Ch. 351. See Collins Mg. Co. v. Marcy, 25 Conn. 242; Parker v. Nightingale, 6 Allen, 341. the estate, or A might have an injunction in his own name to prevent any such erection.1 13. By the common law, the only mode of taking advantage of a breach of a condition which had the effect to defeat or work a forfeiture of an estate was by an entry, upon the principle that it required as solemn an act to defeat as to create an estate. And when such entry had been made, the effect was to reduce the estate to the same plight, and to cause it to be held on the same terms as if the estate to which the condition was annexed had not been granted. But where a life estate was devised upon condition that the devisee pay a certain annuity, with a limitation over after the death of the devisee for life, and the latter failed to perform, and died leaving a large sum in arrear and unpaid, it was held too late for the heirs of the testator to take advantage of the breach by making an entry, after the estate had passed by limitation into the hands of the remainder-man.3 14. With respect to the parties entitled to exercise this right to enter and defeat the estate of him who holds upon condition, there seems to be a difference between conditions. in law and in deed. If there be a breach of the conditions in law, the lessor or his heirs, or, if he have aliened his estate, his assignee, may avail himself of the right to enter. But of conditions in deed no one but he who creates the estate or his heirs, as, for instance, the heirs of a devisor, or, in case of a devise of the contingent right, such devisee or his heirs, can take advantage by entering and defeating the estate. It is a right which cannot be aliened or assigned, or pass by a grant of the reversion at common law.5 As an example 1 Gibert v. Peteler, 38 N. Y. 165. 21 Prest. Est. 48, 50; 2 Flint, Real Prop. 231; 1 Prest. Est. 46; Co. Lit. 201 a, n. 84; Walker, Am. Law, 207; Sheppard, Touch. fol. ed. 494; Co. Lit. 218 a; Sperry v. Sperry, 8 N. H. 477; McKelway v. Seymour, 5 Dutch. 329; Com. Dig. O. 6. 3 Williams v. Angell, 7 R. I. 152. 4 Co. Lit. 214; Sheppard, Touch. fol. ed. 441; 2 Crabb, Real Prop. 835. 5 Lit. § 347; Co. Lit. 214 a, where the reason given is the avoidance of maintenance. Gray v. Blanchard, 8 Pick. 284. See Throp v. Johnson, 3 Ind. 343; Hooper v. Cummings, 45 Me. 359; 1 Smith's Lead. Cas. 5th Am. ed. 114; Winn v. Cole, Walker, 119; Cross v. Carson, 8 Blackf. 138; Van Rensselaer v. Ball, 19 N. Y. 103; Lit. § 247; Gibert v. Peteler, 38 N. Y. 165; Guild v. Richards, 16 Gray, 309. of the indestructability of a condition when once attached to an estate, A conveyed land upon condition expressed in the deed. The purchaser gave a note for the purchasemoney secured by a mortgage of the premises. The mortgagee sold the note and mortgage, and assigned the same to a third party. The condition in the deed having been broken, the original grantor entered to defeat the estate, and it was held that he might do so, and that the assignee of the mortgage took it, subject to the original condition, and liable to be defeated by a breach thereof committed or suffered by the mortgagor. Nor can the benefit of a condition in a grant be reserved to any one but the grantor and his heirs; a stranger cannot take advantage of it. And yet this proposition, though generally laid down in broad terms, requires certain limitations. In case of leases, the Stat. 32 Hen. VIII., c. 34, extends to assignees or grantees of the reversion the same rights of entry for condition broken as the grantor himself had. And if the condition be attached to a particular estate, and the reversioner grant away his reversion, the condition is gone for ever. He could not enforce it himself, because he had parted with all his right; nor could his assignee, because the right was not assignable. And, because such right is not assignable, it is universally true that a stranger cannot take advantage of a condition.5 Such right is not a reversion, nor a possibility of a reversion, nor is it an estate in land; it is a mere chose in action, and, when enforced, the grantor is in by the forfeiture of the condition, and not by reverter. Yet by a law of Pennsylvania, it is something which may be assigned, and would pass under a sheriff's sale, and may be availed of by an assignee of the grantor. The law is not 1 Merrill v. Harris, 102 Mass. 328. 2 Fonda v. Sage, 46 Barb. 122; Shep. Touch. 120. And this extends to cases of grants upon condition by the government. Shulenberg v. Harriman, 21 Wall. 8 Nicoll v. New York and Erie Railroad, 2 Kern. 131; Van Rensselaer v. Ball, 19 N. Y. 102, 105. 4 Hooper v. Cummings, 45 Me. 359. 5 Nicoll v. New York and Erie Railroad, 12 Barb. 461; Norris v. Milner, 20 Ga. 563; Smith v. Brannan, 13 Cal. 107; Warner v. Bennett, 31 Conn. 478. 6 De Peyster v. Michael, 2 Seld. 506, 507; Nicoll v. New York and Erie Railroad, 2 Kern. 132, 139. 7 McKissick v. Pickle, 16 Penn. St. 140. uniform as to how far a devisee of one who has granted an estate upon condition may exercise the right of defeating it by entry for a breach of the condition. In New Jersey, it has been held that by the common law heirs only, and not devisees of such grantor, or, if the grantor be a body politic, their successors only, could take advantage of the breach; neither grantees of the reversion nor remainder-men could do it, though now, by statute, devisees may there exercise the right.1 Whereas, in Massachusetts, the devisee of such grantor, or the residuary devisee or his heir, where the conditional estate is created by devise in the same will, is held competent to enter and defeat the estate for condition broken, like an heir at common law.2 But if the devise be to one or more heirs of an estate upon condition, without any such residuary clause, it would be for the other heirs of the devisor to enter for a breach of the condition. The rule in England, as settled in the case cited below, is this: A devisee cannot avail himself of a breach of condition created by his devisor. And if there be a devise on condition to the devisor's heir at law, and the same be broken, it defeats the estate on the ground of being a conditional limitation instead of a condition at common law.* But where A mortgaged land to B, conditioned to support B and pay a sum of money to C, and, A having died, the estate descended to B as his heir at law, it was held to extinguish the mortgage by the merger thereby effected. But B having 1 Southard v. Central R. R. Co., 2 Dutch. (N. J.) 21; Cornelius v. Ivins, 2 Dutch. (N. J.) 386. 2 Hayden v. Stoughton, 5 Pick. 528; Clapp v. Stoughton, 10 Pick. 463; Brigham v. Shattuck, 10 Pick. 306, 309; Austin v. Cambridgeport Parish, 21 Pick. 215, 224. See also Webster v. Cooper, 14 How. 501. See, upon those points, Shep. Touch. 149; Nicoll v. New York & Erie Railroad, 2 Kern. 121, 131, s. c. 12 Barb. 460; Jones v. Roe, 3 T. R. 88; Chauncy v. Graydon, 2 Atk. 616, 623. The Massachusetts doctrine, that a devisee may enter for breach of condition to defeat an estate was applied to the case of an assignee of a bankrupt grantor's estate. Stearns v. Harris, 8 Allen, 597. And it should be understood that this apparent departure from the principle of the common law in respect to conditional estates grows out of the construction of a clause in the statute of that State (Rev. Stat. c. 101, § 4), which it is too late to controvert, however questionable that construction may originally have been. • Wheeler v. Walker, 2 Conn. 196. 4 Avelyn v. Ward, 1 Ves. Sen. 422. See also Henderson v. Hunter, 59 Penn |