conditions would be here recognized. (a) Again, conditions are either precedent or subsequent. (b) Conditions precedent are those that must be performed before the estate can commence. Thus, if I grant you an estate upon your marrying a particular person, this is a condition precedent; you must marry before taking the estate. Conditions subsequent are those upon the failure of which, an estate already vested is defeated. Thus, if I grant you an estate so long as you reside upon it, this is a condition subsequent. Besides these, there are conditions which operate to enlarge a vested estate. Thus I may grant you an estate for life, with the condition that, if you have children, it shall be an estate in fee. This condition, although subsequent to the commencement of your estate, is precedent to its enlargement, and therefore strictly belongs to neither of the above classes. The most important rules relating to conditions are the following:

1. Conditions must be annexed at the time of creating the estate, and not afterwards; because, when an estate is once created, the grantor's power is at an end. Accordingly, if the conditions are contained in a separate decd, both must be executed at the same time.

2. Conditions must operate upon the whole estate. If I should grant you an estate in fee, with a provision that upon the happening of a certain event your estate should cease for a certain number of years, this would not be good, it is said, because it would destroy the unity of the estate. But a condition may operate upon part of the land and not upon the rest. Thus one-half might be made to revert, upon a certain event. There may be good reason for this distinction under the technical rules of the common law, but I can perceive none in the nature of the subject. (c)

(a) A condition is not created by a clause in a deed in fee, stating that "it is expressly understood between the parties that the said tract or parcel of land is not to be put" to any other than a specified use. Thornton's lessee v. Trammell, 39 Ga. 202. Nor by words in the habendum clause requiring the grantees to hold for a particular purpose, there being no clause of re-entry or forfeiture. Packard v. Ames, 16 Gray, 327.

(b) The intention of the parties, as it appears in the deed, determines whether the condition is precedent or subsequent. Parmelee v. Oswego and Syracuse R. R. Co. 2 Selden, 74; s. c 7 Barb. 599; Underhill v. Saratoga and Washington R. R. Co. 20 Barb. 455. Robbins v. Gleason, 47 Maine, 259. A condition precedent, which is possible and lawful, must be strictly performed to give the right of action which depends on it. Balt. & O. R. R. Co. v. Polly, 14 Grattan, 447. Conditions subsequent are strictly construed against the grantor. Thus, if a grant be made upon condition that the grantee shall forever keep up a fence on the line between the land of the grantor and the land conveyed, the grant will not be forfeited by neglect to keep up the fence by the heirs of the grantee after his death. Emerson v. Simpson, 43 N. H. 475; Labaree v. Carleton, 53 Maine, 211; Voris v. Renshaw, 49 Ill. 425. The heirs will not be bound, unless expressly named. Page v. Palmer, 48 N. H. 385. If it be doubtful in a deed whether a clause in a deed is a condition or a covenant, the latter construction must be adopted. Hoyt v. Kimball, 49 N. H. 322. Where a condition required a certain institution should be permanently located on the land within a year, it is satisfied by the location of the institution there bonâ fide, and the erection of buildings, though they are subsequently burned down, and rebuilt on another spot. Mead v. Ballard, 7 Wall. 290.

(c) And a condition cannot be severed. A grant of a part of the reversion will defeat the whole condition. Tinkham v. Erie R. R. 53 Barb. 393.

3. Conditions can only be reserved to the grantor and his heirs. Except by statutory provision, which we have not, they cannot be reserved to strangers. (a) The reason assigned is, that estates upon condition, do not, ipso facto, cease upon the happening of the condition, but only when there has been an entry for condition broken, or some act equivalent thereto, as the commencement of an action. In order to discourage champerty and maintenance, (b) or the fomenting of litigation, it was a maxim of the English law, as we have seen, that no right of action could be assigned by one person to another. Consequently, the right of entry for condition broken could not be reserved to a stranger. But here the reason of this rule does not exist, because we have no law against champerty or maintenance. The doctrine, however, that there must be an entry, to defeat an estate upon condition, has been recognized by our court, (e) and it was held that the bringing an ejectment was equivalent thereto. In this respect, an estate upon condition differs from a conditional limitation. For example, if I simply grant you an estate upon condition of your remaining in Ohio, and you break the condition by removing, either I or my heirs must enter and assert our claim, in order to defeat your estate; and until we do so, the estate continues in you. But if I make a conditional limitation, by granting an estate to you so long as you remain in Ohio, and then to another person, the very act of removing defeats your estate; and it vests instantly in the next person, without any act done by him.

4. Conditions which are impossible at the time of making them, or which afterwards become impossible by the act of God, or by the act of the grantor himself, are void; and an estate already vested thus becomes absolute. The reason is, that the moment that a condition becomes impossible, it ceases to be a condition in the sense intended by the grant; and when this is not the fault of the grantee, he is not to be prejudiced thereby. Accordingly, the estate being vested, he holds it discharged of the condition. Thus, if I should grant you an estate, upon condition that within five years you should marry a certain woman, and she should be dead at the time, or should die within the five years, or I should marry her; in either case you would hold the estate discharged of the condition.

5. Conditions, the performance of which is unlawful, are void. Thus, if I grant you an estate, the continuance of which depends upon your doing something which is illegal, or immoral; or omitting something which is your duty, the condition is void, and the estate which is vested becomes absolute.

(a) Underhill v. Saratoga and Washington R. R. Co. 20 Barb. 455. Forfeiture, by breach of condition can only be taken advantage of by the grantor or his heirs. Dewey v. Williams, 40 N. H. 222; Hooper v. Cummings, 45 Maine, 359. A right of entry on condition broken passes only to heirs, and is not devisable or assignable. Southard v. Cent. R. R. Co. 2 Dutcher, 13; Norris v. Milner, 20 Ga. 563. (b) See 4 Black. Com. 134; Key v. Vattier, 1 Ohio Rep. 141.

(c) Sperry v. Pond, 5 Ohio Rep. 387. Osgood v. Abbott, 58 Maine, 78; Guild v. Richards, 16 Gray, 309.

6. Conditions which are repugnant to the nature of the estate, are void. Thus, if I grant you an estate in fee, upon condition that you shall not part with it, or shall not receive the profits of it, these conditions would be void for repugnancy, since the rights of alienation, and of taking the profits, are the essential incidents of an estate in fee. But the grantor may prohibit alienation to a particular person; (a) for this is not within the reason of the rule. So if the estate be for life or years, a condition against alienation will be good, for here is no repugnancy to the nature of the estate. And in this case, a sale on execution will not be considered as an alienation so as to defeat the estate. (b)

7. Conditions in absolute prevention of marriage are void on grounds of public policy, except in the case of widows taking lands from their deceased husbands. (c) But the grantor may provide that the grantee shall not marry without his consent; because this does not absolutely prevent marriage.

8. Conditions may be performed by any person having an interest in the subject-matter. And if a particular time be appointed, the performance must be at or before the time. The law is strict on this subject, though equity will relieve against mere failure in point of time.

9. Equity will relieve against all forfeitures for breach of conditions, where a compensation can be made in damages; and this renders the legal doctrines respecting conditions of little practical consequence. (d)

10. When the condition has been broken, the grantor may, by his own act, debar himself from taking advantage of it. (e) Thus, where a lease contains a clause of re-entry, for non-payment of rent at a certain time, and the lessor accepts rent afterwards, he cannot enter for condition broken.

§ 143. Estates Tail. (f) My limits will not allow a further con

(a) Langdon v. Ingram, 28 Ind. 360.

(b) But the condition may interfere with or control the mode of enjoyment of the estate. Thus, a condition against partition has been held valid. Hunt . Wright, 47 N. H. 396. So, also, one against the sale of intoxicating liquors on the premises sold. Plumb v. Tubbs, 41 N. Y. 442. And a condition in a grant of a fee-simple, that a perpetual rent shall be paid, is valid. Van Rensselaer v. Barringer, 39 N. Y. 9.

(c) Commonwealth v. Stouffer, 10 Barr, 359; McCullough's Appeal, 12 Penn. State, 197. But see Parsons v. Winslow, 6 Mass. 169. Otis v. Prince, 10 Gray, 581. But in Pennsylvania, by the use of proper words, the enjoyment of a bequest can be limited to the period during which the legatee shall remain unmarried, although the general rule is recognized. Where a bequest was made to A., "during the term she shall remain the wife or widow of my son," it was held that A. could only enjoy it while she complied with the conditions. Holtz Estate, 38 Penn. State, 422. But an absolute prohibition of marriage, until the devisee shall be twenty-one years old, is reasonable, and marriage before reaching that age will defeat the estate. Shackleford v. Hall, 19 Ill. 212.

(d) A court of equity will not allow its powers to be used in any way to assist to divest an estate for a breach of a condition subsequent. Smith v. Jewett, 40 N. H. 530; Livingston v. Tomkins, 4 Johns. Ch. 431; Warner v. Bennett, 31 Conn. 468.

(e) Ludlow v. N. Y. & Harlem R. R. Co. 12 Barb. 440.

(f) See 2 Black. Com. 110; 4 Kent, Com. 12-15. See act of April 4, 1859, providing for the sale or lease of estates tail in certain cases.

sideration of the general subject of estates upon condition. But there are certain particular estates upon condition, known by specific names, which, though not in existence here, require a brief notice, on account of the frequent reference made to them by way of illustration and analogy. These are estates tail, estates by stat ute merchant, by statute staple, and by elegit. And first, estates tail. An estate tail is an estate given to a man and some particular description of his heirs, to the exclusion of all other heirs. It was originally treated as a fee-simple, upon condition that the grantee had the required heirs; and accordingly, as soon as the condition was performed, by the birth of the specified heirs, the estate became absolute. But as this construction tended to defeat the design of creating the estate, which was to tie up the property from alienation, and create a perpetuity in particular families, the aristocracy of England had influence enough to procure the enactment of the famous statute, de donis conditionalibus, the effect of which was to fetter an estate tail, with the ancient restraints upon alienation. The estate was to go to the stipulated heirs at all events, if there were such; and if not, to revert to the donor. With the long struggles in England, to avoid the effect of this statute, I shall not occupy your time. Happily, estates tail have been rare in this country. They were introduced here before the revolution, bnt were so manifestly opposed to the spirit of our republican institutions, which favor a free distribution of property, that most, if not all of the States, have altogether prohibited them. This is partially the case in Ohio. By the act of 1811, (a) no estate can be in any way limited to any persons, but such as are in being at the time, and their immediate issue or descendants; and all estates attempted to be entailed, become absolute fees in the issue of the first grantee in tail. Thus by a statute of ten lines, while the dead are prevented from domineering over their posterity, by means of restraints upon their property, the students of law are relieved from investigating this extensive and intricate branch of English jurisprudence.

§ 144. Estates by Statute Merchant, Staple, and Elegit. (b) The object of these three estates was the same; namely, to make land available to pay debts. Under the feudal system, real estate could not be made available to a creditor, because there was no process by which it could be reached. The first act making land chargeable with debts, was the statute de mercatoribus, or statute merchant, passed in 1284; and the second was the statute staple, passed in

(a) Under this statute, the first tenant takes a fee-tail, the heirs of his body take a fee-simple. King v. Beck, 12 Ohio R 390. The same construction is given to similar statutes. Clark v. Smith, 49 Md. 106; Lippitt v Huston, 8 R. I 415. The heirs of the body of the first tenant, while taking by descent, yet take per formam doni from the person who created the estate, and are therefore not estopped by the deed of the first tenant though he conveyed the land in fee-simple with covenant of general warranty. Pollock v. Speidel, 17 Ohio St. 439. And the surviving husband of the first tenant is tenant by curtesy. Harkness v. Corning, 24 Ohio St. 416.

(b) See 2 Black. Com. 160.

1354. Both these were designed for the benefit of commerce, and originally confined to traders. They enabled creditors of this description to secure debts acknowledged to be due, by taking possession of the debtor's land, and appropriating the profits until their debts were satisfied; and while so in possession, they were called tenants by statute merchant, or statute staple, as the case might be. It follows that they held possession upon condition subsequent. We have had nothing similar to these provisions in this country. The estate by elegit was created the same year as that by statute merchant, for the common benefit of all judgment creditors, whether merchants or not. The judgment creditor, who until then had recourse only upon the body, goods, and annual profits of the lands of his debtor, was allowed his election, in case there was not sufficient personalty, to take possession of one-half of his lands, until the debt was paid out of the rents and profits; and while so in possession, he was called tenant by elegit: this estate, therefore, like the other two, was an estate upon condition subsequent. We once had something like it, as will be seen by referring to our carly laws on the subject of judgment and execution; but the modern policy has been to sell the land at once on execution, as will be explained hereafter. I have barely alluded to these estates, because frequently referred to for analogies.

The remarks hitherto made have related exclusively to realty. Conditions may, however, be annexed to personalty, in the common course of business transactions. (a) But as their nature and effect will always depend upon the terms of the contract by which they are created, they involve no technical questions of law which require notice here. The most common cases of personalty held upon condition, are those coming under the head of bailments, which will be considered hereafter in connection with contracts. I therefore leave the subject of estates upon condition, with the remark that this title furnishes still another instance of the simplicity of our law of real property, compared with the ancient English law.

(a) A sale and delivery of personal property on condition that the title shall not vest in the vendlee until the price is paid, passes no title until the condition is performed. Coggill v. H. & N. H. R. R. Co. 3 Gray, 544; Sargent v. Metcalf, 5 id. 306; Buson v. Dougherty, 11 Humph. 50; 1 Parsons, Cont. 449.