Sec 608

A condition subsequent is a limitation of title so that it will be divested on the happening of a future contingent event. The term title is used in a general sense, and includes title to labor, and title to personal property, as well as title to land.5 By a condition precedent, it should be remembered, a duty is created; by a condition subsequent, a duty is extinguished. A condition precedent is put in evidence by the plaintiff in order to establish his right to sue; a condition subsequent is put in evidence by the defendant for the purpose of showing why he should not be sued. But while this is the general rule, "it is possible for an obligation to be extinguished by a condition subsequent before the time for performing the obligation arrives, and hence before any right of action accrues. Yet, if an action be brought after the time for performance arrives, the plaintiff will be able to state and prove facts which will entitle him to recover, unless the defendant sets up and proves his defence arising from the condition subsequent."1 - It is also to be observed, as is elsewhere more fully shown,2 that so far as concerns the reason of the thing, the distinction between conditions precedent and conditions subsequent is purely artificial. There is no condition that is not in one aspect precedent and in another aspect subsequent. - That a stranger cannot take advantage of a breach of a condition subsequent, springs from the very nature of contracts;3 and as a stranger, so far as concerns the right to insist on a broken covenant on land, is to be considered an heir of the grantor when such heir has no interest which would be served by the exaction of the forfeiture. Thus, in a case in Michigan in 1881, the plaintiff sought to take advantage of a condition in a deed that no intoxicating liquors should be sold on the premises. "May an owner of lands," said Marston, C. J., "when conveying the same, insert such conditions subsequent as his fancy may dictate, and upon a breach thereof insist upon a forfeiture of the estate, although such breach in no way tends to his prejudice? May he insert a condition that even an objectionable business shall not be carried on upon the premises; or that a particular use of the premises, and none other, shall be made; or if any violation of the laws of the land occur thereon, as an assault and battery, that the estate shall be forfeited and that he may thereupon re-enter and become owner thereof? Upon what principle could such conditions be enforced, other than that as mere owner he had a right to insert any conditions which the grantee would accept ? If this right exists, then conditions in restraint of trade, and that would tend to prevent alienation of the property, may be inserted at pleasure, and the courts be called upon to enforce the same. The right to insert conditions, like the one in this case, we do not question, where it appears that the grantor has a special interest in the enforcement thereof. An owner of real estate, when conveying a part thereof, may undoubtedly impose conditions, which, if reasonable, courts would, by an appropriate remedy, restrain and prevent the violation thereof, for the protection of the grantor and his privies in estate, certainly so long as the reasons which gave rise to the condition still existed. Nothing, however, of this kind exists in the present case. It does not appear that the plaintiffs, at the time of the conveyance or since then, owned any other lands in the village or vicinity of Otsego, or that they resided in the village or vicinity, or had in any way a special interest in the enforcement of this condition."1

Conditions subsequent divest title, but not in favor of strangers.

1 Supra, sec 603 et seq.; infra, sec 714; Blood v. Enos, 12 Vt. 625; Champlin v. Rowley, 18 Wend. 187; Wilhelm v. McCall, 2 Watts & S. 26.

2 Per cur. in Ellen v. Topp, 6 Ex. 441. In Raymond v. Minton, L. R. 1 Ex. 244, it was held that a master would not be liable for not teaching an apprentice when the apprentice would not be taught. See infra, sec 613.

3 Wh. on Ev. sec 353 et seq.; Penn. Life Ins. Co. v. Dovey, 64 Penn. St. 260; Newman v. Perrill, 73 Ind. 153; Cheraw, etc. R. R. v. White, 14 S. C. 51; and see cases supra, sec 558, 606.

4 Emerson v. Graff, 29 Penn. St. 358.

5 See supra, sec 545 et seq.; infra, sec 1039; and see Elliott v. Blake, 1 Lev. 88; Poussard v. Spiers, L. R. 1 Q. B. D. 410; Cowell v. Springs Co., 100 U. S. 55; Rowell v. Jewett, 69 Me. 293; Randall v. Marble, 89 Me. 310; Wells v. Calnan, 107 Mass. 514; Brigham v. Shattuck, 10 Pick. 309; Dresser Man. Co. v. Waterston, 3 Met. 9; Osborn v. Jernegan, 126 Mass. 362; Keening v. Ayling, 126 Mass. 404; Goodell v. Fair-brother, 12 R. I. 233; Knight v. R. R., 70 Mo. 231; McClelland v. Nichols, 24 Minn. 176.

1 Langdell, Cases on Cont. ii. 1002. 2 Supra, sec 551.

3 See infra, sec 784.