That the rule is not regarded with favor in this country is further apparent in that it has been abolished by statute in many of the States. It has been abolished in California (Cal. Civ. Code, 1886, sec. 779), Connecticut (Gen. Stat., 1888, sec. 2953), Dakota (Comp. Laws, 1887, sec. 2752), Kentucky (Gen. Stat. of Ky., Bullitt & Feland, chap. 63, art. I, sec. 10; see, also, Truman v. White's Heirs, 4 B. Monr. 560, 570), Massachusetts (Pub. Stat., 1882, chap. 126, sec. 4), Michigan (2 Howell's Ann. Stat. sec. 5544), Minnesota (Kelly's Stat. 1891, sec. 3984), Mississippi (Ann. Code, 1892, sec. 2446), New York (1 R. S. 725, sec. 28; 8th ed., vol. 4, p. 2433, sec. 28), Virginia (Code, 1887, sec. 2423), West Virginia (Code, 1891, chap. 71, sec. 11), Wisconsin (Ann. Stat. Sanborn & Berryman, sec. 2052), and, probably, in other States. The rule has been abolished in the case of wills only in Kansas (Gen. Stat., 1889, sec. 7256), New Hampshire (Pub. Stat., chap. 186, sec. 8), New Jersey (Rev. of 1877, Descent, sec. 10), Ohio (R. S. Giauque's ed., 1890, sec. 5968) and Oregon (2 Hill's Ann. Laws, sec. 3093).-Hutchins' note.

N. Y. REAL PROP. LAW, § 44. Where a remainder shall be limited to the heirs, or heirs of the body, of a person to whom a life estate in the same premises is given, the persons who, on the termination of the life estate are the heirs or heirs of the body, of such tenant for life, shall take as purchasers, by virtue of the remainder so limited to them.

CHAPTER IV.

OTHER FUTURE INTERESTS.

(a) Rights of Entry.

LIT., § 351. But in such cases of feoffment upon condition, where the feoffor may lawfully enter for the condition broken, etc., there the feoffor hath not the freehold before his entrie, etc.

Co. LIT., 265, a. Note, that jus, or right, in generall signification includeth not onely a right for the which a writ of right doth lie, but also any title or claime, either by force of a condition, mortmaine, or the like, for the which no action is given by law, but only an entry.

LEAKE, LAND LAW, 59. A right of entry was not assignable at common law by deed, nor by will; though it might be released to the person in actual seisin of the freehold; and if not so released it descended to the heir. A right of entry, whether immediate or future, and whether vested or contingent, may now be disposed of by deed, 8 & 9 Vict., c. 106, s. 6; and may be devised by will, 1 Vict., c. 26, s. 3; and will descend in the same manner as the land, if recovered, would descend, 3 & 4 W. 4, c. 106, ss. I, 2.

I SHARS. & B., LEAD. CAS., 141. A forfeiture may be taken advantage of by the grantor and his heirs . . . and the heir need not be expressly named in the instrument creating the condition to entitle him to take advantage of a breach thereof, occurring either in the lifetime of the grantor or after his death . . . and to have any effect upon the estate the condition must be taken advantage of by those to whom the right so to do belongs; and it may be stated as a general rule that with the breach of a condition a stranger

has nothing to do, and a court will not examine at his request, or in a collateral proceeding, the question whether a condition has been broken and a forfeiture incurred.

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The right to take advantage of a condition cannot be conveyed so as to give the assignee a right to enforce it, but the conveyance will be so far effective that it will destroy the right of the grantor to enforce it, thus practically destroying the condition (Rice v. Boston and Worcester R. R., 12 Allen, 141); and the effect is not altered by the fact that the person to whom the conveyance was made is the same who could subsequently have claimed the condition as heir of the grantor (Rice v. R. R., supra); nor, it seems, is the case different where the conveyance is by force of law, as one made under an insolvent act. Stearns v. Harris, 8 Allen, 597. A devisee of a condition cannot take advantage of it except where a condition is rendered devis

able by statute.

ID., 150. A question has sometimes been made as to what estate the grantor after re-entry for forfeiture is possessed of; and the better opinion seems to be that he is seised as of his original estate. It is true that this position is denied by Ruggles, C. J., in the course of his interesting and instructive opinion in De Peyster v. Michael, 6 N. Y., 467. Speaking of the right of re-entry, the learned judge says: "It is not a reversion, nor is it the possibility of a reversion, nor is it any estate in the land. It is a mere right or chose in action, and if enforced the grantor would be in by the forfeiture of a condition and not by reverter."

The current of authority is, however, the other way. Coke, 202, a, says: "Regularly it is true that he that entereth for a condition broken, shall be seised in his first. estate or of that estate which he had at the time of the estate made upon condition," and states certain exceptions to the rule on account of impossibility, as where the reverter is to one seised in right of a wife who has died before breach -of necessity, as where a cestui que use prior to the Statute

of Uses had made a feoffment and had entered for condition broken or with regard to certain collateral qualities. This is recognized as the law on this side of the Atlantic in The Proprietors of the Church in Brattle Street v. Grant, 3 Gray, 142. Bigelow, J., said: "A grant of a fee on condition only creates an estate of a base or determinable nature in the grantee, ieaving the right or possibility of reverter vested in the grantor."

It follows from the above position that any lien upon or right obtained by a third party in an estate held subject to a condition will be destroyed upon a re-entry by the grantor for a breach of condition; and a grantor is under no obligation to regard any supposed rights which a creditor of the grantee has acquired in the conditional estate. Thus in a case where, in April, 1857, a creditor of the grantee of an estate on condition made a levy on the estate, and in May of the same year the grantor formally entered for condition. broken, and in 1859 took actual possession of the premises, it was held that there being no evidence of collusion between the grantor and grantee, the creditor acquired no right as against the former. Thomas v. Record, 47 Me. 500.

12 N. Y. REP., 121. A mere failure to perform a condition subsequent does not divest the estate. The grantor or his heirs may not choose to take advantage of the breach, and until they do so, by entry, or by what is now made by statute its equivalent, there is no forfeiture of the estate. This was the common law, and it has not been altered by statute so as to give a right of entry to an assignee in any instance not coupled with a reversionary interest, as in the cases of estates for years and for life, except in cases of leases, or rather of grants in fee, reserving rent. To that extent the law was changed in England by 32 Henry VIII., ch. 34; and similar enactments have been made in several of the States. In this State these provisions will be found at 1 R. S. 748, secs. 23, 24 and 25, and are limited to grants

or leases in fee reserving rents, and to leases for lives and As to other grants upon condition, the com

for years.

mon law is unchanged. 2 Kent, 123.

There was a reason for the statutory change in the particular cases mentioned; for in them the grantor had an interest independent of the possibility of reverter. In the cases of a grant or lease in fee, though the grantor has no reversion, he has an interest by way of annual rents reserved, and in the cases of leases for lives and years, he has an actual reversion of what remains after the expiration of the particular estates. In these cases, therefore, he has a vested interest, and may well be permitted to assign with it, and his assignee to take with such interest his right of entry for non-performance of a condition subsequent; for the right to enforce a forfeiture is necessary to the collection of the rents and to the protection and enjoyment of the reversion. But where a fee simple, without a reservation of rents, is granted upon a condition subsequent, as in this case, there is no estate remaining in the grantor. There is simply a possibility of reverter, but that is no estate. There is not even a possibility coupled with an interest, but a bare possibility alone. It has been said such possibilities were assignable in equity; but those were interests of a very different character, as I will presently show. So far from including these, Kent says (4 Kent, Com. 130): "A court of equity will never lend its aid to divest an estate for the breach of a condition subsequent," and the chancellor acted upon that rule in Livingston v. Stickles, 8 Paige, 398.

All contingent and executory interests were assignable in equity, and would be enforced if made for a valuable consideration. 4 Kent, 269. But these words had an ascertained legal signification; and it was never claimed that they were applicable to a case like that under consideration. It will hardly be pretended that Dederer's possibility of reverter was a contingent or an executory interest, in the legal sense of these words.

By the Revised Statutes (1 R. S. 725, sec. 35), expectant