66

condition," taken in connection with the rest of a deed, making a conditional limitation. In the recent case of Camp v. Cleary, Supreme Court of Appeals of Virginia, January term, 1882, 13 Reporter, 381, a grantor conveyed by deed of gift, to his grandson, three pieces of ground, on one of which pieces stood a mausoleum, and the gift was upon the condition that if he (the grantee) shall ever in any way whatsoever alienate or dispose of the said lastmentioned piece of land, or any part thereof, this deed shall cease and be void, and this last-mentioned piece of land, with the other two lots conveyed to him in fee, shall revert to and rest in his sister E. and her heirs forever." It was argued that this presented the case of a condition in restraint of alienation, and therefore void; but the Court held that it was the case of a conditional limitation, and therefore not open to the objection urged against its validity.

The most material difference between a condition and a conditional limitation has been already adverted to; it is this, that to render a condition effective to terminate the estate to which it is attached, it must be taken advantage of by some act, and this can be done only by the grantor or his heirs, while on the expiration of an estate by the limitation it at once ceases, and the next estate in expectancy at once vests; .. and a stranger may take advantage of the recurrence of the contingency on which the estate is limited. . . This distinction was originally introduced "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 an estate previously limited, and of a limitation because upon the happening of the contingency the estate passes to the person having the next expectant interest without entry or claim." Bigelow, J., in Proprietors of Church v. Grant,

supra. The design of the rule is to carry out the intent of the grantor or devisor, for if the estate over could not vest in possession in the grantee thereof without some act of the heirs of the grantor, the grantee might very possibly never receive the benefit intended for him. Den ex d. Smith v.

Hance, 6 Hals. 244.

ID., 127-131. A condition may be made of almost anything that is not illegal or unreasonable, on the principle that the owner of land, who is not obliged to transfer it at all, may attach to its transfer such conditions and restrictions as he pleases, and in view of which the grantee takes the land, so long as they are not in contravention of any policy of law.

While, however, great liberty is allowed in the creation of conditions, there are, nevertheless, some conditions and restrictions which the law prohibits as being contrary to public policy or as being repugnant to the estate granted.

First, it may be stated that a condition in general restraint of marriage is bad as against public policy and is incapable of enforcement; but to render a condition in restraint of marriage void, it must be in fact general, or at least unreasonable, and a condition that a person shall not marry before attaining a certain age, provided the age fixed be not an unreasonable one, is a good condition. Shackelford v. Hall, 19 Ill. 212.

Conditions in general restraint of alienation are void, both as contrary to the policy of law in this country, and as repugnant to the estate granted, as said by Littleton, sec. 360: "Also, if a feoffment be made upon this condition that the feoffee shall not alien the land to any, this condition is void, because when a man is enfeoffed of lands or tenements, he hath power to alien them to any person by the law. For if such a condition should be good, then the condition should oust him of all power which the law gives him, which should be against reason, and therefore such a condition is void," and, Coke adds, "and the like law is of a devise in fee

upon condition that the devisee shall not alien, the condition is void."

The law at the present day is the same, and may be stated to be that a condition in general restraint of alienation, or that the grantee shall not alien during his life, is void. With regard to conditions imposing partial restraints upon alienation, the authorities are, however, not at one. A long line of cases holds that a condition imposing a partial restraint as to time, so long as the time is not unreasonably long, will be sustained. Cornelius v. Ivins, 2 Dutch. 376.

ID., 136. An estate granted on condition, until it is forfeited for a breach thereof, differs in no respect from an estate absolute of the same extent, and may be used and enjoyed in precisely the same manner, except so far as the condition itself expressly curtails the free use and enjoyment of the land.

GRAY, PERPETUITIES, § 282, note. In the time of Lord Coke words of condition restraining the use of land, although manifestly imposed for the benefit of other land in the neighborhood, would undoubtedly have been deemed to create a condition enforceable by entry. In England, however, for nearly, if not quite, two centuries, the remedy by entry for breach of condition attached to a conveyance in fee simple has been practically obsolete. In mortgages all remedies have been had in equity, and if in devises clauses in the form of a condition have been inserted to secure the payment of legacies to the heir or third persons, the right to such legacies has not been enforced by entry. . The practice of entry undoubtedly fell into disuse, because when the condition was for the payment of money, which it generally was, equity would restrain a forfeiture, and would in many cases enforce the payment as a trust. Yet it was a bold statement for Sugden to make in his treatise on Powers (1st ed.), 96 (1808), "That what by the old law was deemed a devise upon condition would now, perhaps, in almost every case, be construed a devise in fee upon trust,

and by this construction, instead of the heir taking advantage of the condition broken, the cestui que trust can compel an observance of the trust by a suit in equity." But this statement, which is repeated by the learned author in all the subsequent editions-see 8th ed., p. 106 (1861)-though bold, was prophetic. In 1860 the Court of Queen's Bench and on appeal the Exchequer Chamber, held, in the case of Wright v. Wilkin, 2 B. & S. 232, 259, that upon a devise on condition that the devisee should pay certain legacies, the heir could not enter for breach of condition, but that the devisee took the land on trust; and this view was adopted by the House of Lords in A. G. v. Wax Chandlers' Co., L. R. 6 H. L. 1 (1873). . . The same doctrine has been adopted in the Supreme Court of the United States, after elaborate argument, in Stanley v. Colt, 5 Wall. 119. So in Massachusetts. Sohier v. Trinity Church, 109 Mass. 1, 19; Episcopal City Mission v. Appleton, 117 Mass. 326; Ayling v. Kramer, 133 Mass. 12. To the same effect is Fuller v. Arms, 45 Vt. 400. And in Connecticut it is said. that all conditions which are not for the benefit of some individual or the public are void. Mitchell v. Leavitt, 30 Conn. 587. And see Barrie v. Smith, 47 Mich. 130. But see Blanchard v. Detroit, &c., R. R. Co., 31 Mich. 43; Underhill v. Saratoga R. R. Co., 20 Barb. 455; Aikin v. Albany, &c., R. R. Co., 26 Barb. 289; Douglas v. Hawes, Ritchie, Eq., Dec. 146, 152.

IV. Future Estates.

CHAPTER I.

PRESENT AND FUTURE ESTATES.

2 BL. COм., 163. Hitherto we have considered estates solely with regard to their duration, or the quantity of interest which the owners have therein. We are now to consider them in another view; with regard to the time of their enjoyment, when the actual pernancy of the profits (that is, the taking, perception, or receipt, of the rents and other advantages arising therefrom) begins. Estates therefore with respect to this consideration, may either be in possession, or in expectancy; and of expectancies there are two sorts; one created by the act of the parties, called a remainder; the other by act of law, and called a reversion.

Of estates in possession (which are sometimes called estates executed, whereby a present interest passes to and resides in the tenant, not depending on any subsequent circumstance or contingency, as in the case of estate executory), there is little or nothing peculiar to be observed. All the estates we have hitherto spoken of are of this kind; for in laying down general rules, we usually apply them to such estates as are then actually in the tenant's possession. But the doctrine of estates in expectancy contains some of the nicest and most abstruse learning in the English law.

LEAKE, LAND LAW, 45-49. In the common law of freehold tenure seisin signifies the possession of the fee or freehold estate; the freeholder was described in law as seised, or invested with the seisin. The tenant in the actual possession or seisin was presumptively seised of an estate in fee