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intention of the parties as it appears in the deed determines whether the condition is precedent or subsequent. A condition precedent which is possible and lawful must be strictly performed. Conditions subsequent which defeat the estate are strictly construed against the grantor. Conditions must be annexed at the time the estate is created; they must operate upon the whole of the estate, though they may be limited to a part of the land. If an estate in fee is granted with a provision that upon the happening of an event the estate shall cease for a number of years, it would not be good. Conditions can only be reserved in favor of the grantor and his heirs. Conditions which are impossible when made, or become so by the act of God, are void. Unlawful conditions are void. Conditions repugnant to the nature of the estate are not good, as where an estate is given in fee on condition that the grantee will not sell it or enjoy it. Conditions in absolute prevention of marriage are void, though in some states widows who take lands from their deceased husbands coupled with such a condition are bound by the conditions. Conditions may be performed by any one having an interest in the estate. Equity will relieve against forfeitures for breach of conditions when compensation can be made in damages. Where a condition is broken the grantor may bar himself from taking advantage of it, as by taking rent afterwards with knowledge. Mortgages are sometimes treated under the head of estates upon condition. They are so considered yet in some of the states, but in most of them they are treated as mere liens. The common-law rule is that the mortgagee takes the title subject to be defeated by payment of the mortgage debt. This rule prevails in most of the older states, but a large majority of the states of the Union, either by statute or the decrees of the courts, treat a mortgage as a mere lien to secure the debt, while

the title remains in the mortgagor until default, foreclosure and sale. The methods by which the mortgagor proceeds to enforce his lien after the maturity of the mortgage debt are regulated by the statutes of the differ

ent states.

§ 388. Estates in remainder.-Estates in remainder were popular in England because they facilitated the creation of family settlements, and often there were several remainders limited upon one another to prevent an estate passing out of the family. Remainders are not favored in this country, anything tending to obstruct the free sale of land being opposed to the spirit of our people and institutions. Blackstone's definition is concise and comprehensive. "An estate in remainder is an estate limited to take effect and be enjoyed after another estate is determined." It is a vested remainder where there is a person in being who would have an immediate right of possession upon the ceasing of the precedent estate. It is a contingent remainder if the person to whom, or the event upon which, it is limited is uncertain. If one holding the fee simple grants lands to A for twenty years, and then to B and his heirs forever, A is tenant for years, remainder to B in fee. Or there may be a grant to A for years, then to B for life, and then to C and his heirs forever, then A is tenant for years, B for life, with remainder in fee to C. These several estates are parts of one estate, the fee simple of the grantor out of which the three several estates are carved. It follows, of course, that no remainder can be limited after a grant in fee simple. There must be a precedent estate created, upon which the remainder is limited, and this precedent estate is called in law the particular estate. It is essential also that the remainder must commence or pass out of the grantor at the time the

particular estate was created. The remainder must vest in the grantee during the continuance of the particular estate, or instantly upon its termination. A contingent remainder may never take effect, as where there is a grant to A for life, remainder to B's eldest son (then unborn) in tail. If B has no son when the particular estate is determined, that is, at the death of A, the remainder is gone.

§ 389. Rule in Shelley's Case. And here is a proper place to consider what is known as the rule in Shelley's Case. It was laid down in the following language in 1 Rep. 104 as follows: "It is a rule of law, where an ancestor by any gift or conveyance takes an estate in freehold, and in the same gift or conveyance an estate is limited mediately or immediately to his heirs in fee or in tail, that always in such case the heirs are words of limitation of the estate and not words of purchase." Land is acquired in two ways, by descent and purchase. Where one derives title through a deed or will, he is a purchaser. Where it comes to him by virtue of his kinship or relation to an ancestor, he takes by descent. if by will an estate is given which is the same in quality and quantity as that which would go by descent, it is an estate by descent. The effect of the rule in Shelley's Case was to cut off what would seem to be intended as a remainder limited to the heirs of the grantee, and to make the estate an absolute fee in the grantee. This rule has been generally adopted in this country as a part of the common law, although it has been modified or abolished by statute in some of them.

But

§ 390. Executory devises.-An executory devise of lands is such disposition of them by will that thereby no estate vests at the death of the devisor, but only on some

future contingency. Executory devises were created to carry out the purposes of the testator. A devise to a femme sole and heirs upon the day of her marriage is a good executory devise. If she does not marry the estate would go by descent to the heirs of the testator. A devise to A and his heirs, but if he dies before the age of twenty-one years, then to B and his heirs, is good, though if these words were used in a deed the remainder would be void and A would take a fee. Executory devises were abused by making them the means of creating perpetuities. So there is a rule at common law which has been incorporated into the statute law of many states that the utmost length of time that is allowed for the contingency of an executory devise to happen in, is the duration of a life or lives in being and twenty-one years afterwards.

§ 391. Estates in reversion.-An estate in reversion is the residue of an estate left in the grantor to commence in possession after the determination of some particular estate granted out by him. It grows out of the legal maxim that whatever a man does not dispose of remains to him and his heirs. It is a present interest, but can only take effect in the future as is implied in the definition above given.

§ 392. Estates in severalty.-Estates are now to be considered with respect to the owners thereof, whether in severalty, as tenants in common or as joint tenants. An estate in severalty is one which has a single owner.

§ 393. Joint tenancy.-At common law a joint tenancy was where lands or tenements were granted to two or more persons, to hold in fee simple, fee tail, for life, for years or at will. In joint tenancies, there must be unity of interest, of title, of time and of possession. One

of the incidents of this tenancy at common law was the right of survivorship, by which on the death of one the entire estate vested in the survivor. In this sense, joint tenancies do not exist in this country, except in the case of conveyances to husband and wife jointly. These are called tenancies by the entirety. No part of such an estate can be sold by one so as to affect the right of survivorship of the other. No part of it can be seized in execution for the debt of either during its continuance, and upon the death of one the whole vests in the survivor. In Ohio the courts have refused to recognize such a tenancy, by holding that husband and wife holding by joint deed or devise are tenants in common, without the right of survivorship.

§ 394. Tenancy in common.-A tenancy in common is where there are several owners who may hold by different titles, in different interests, which may be acquired at different times, the only unity being unity of possession.

Tenants in common may have partition of the lands. They may sue one another for waste. The possession of one is the possession of all. If one receives all the rent, or more than his share, he is liable to the other tenants for the excess. They are liable for their proportionate share of the expense for repairs, for taxes and for insurance. Tenants in common must act in good faith towards each other. One can not buy in the estate for himself at a delinquent tax sale. If one buys in an outstanding title which threatens the estate, he can not claim this in his own right, to the prejudice of his cotenants, if they are willing to pay their share of the purchase-money.

16-Elem. Law.

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