102. An estate on condition is one which is created or defeated, enlarged or diminished, on the happening of a contingency.
102a. A mortgage is an estate on condition (p. 180).
Heretofore estates have been considered with, reference to their quantity. The consideration of estates as to their quality introduces a new principle of classification. Estates may be absolute, as has been the case with the estates considered in the preceding chapters, or they may be qualified or defeasible; that is, any of the estates as to quantity, estates in fee simple, life estates, etc., may be held subject to a condition.1 The owner of an estate in lands
1 That the statute of quia emptores does not render conditions attached to fees invalid, see Gray, Perp. 19; Van Rensselaer v. Ball, 19 N. Y. 100; Van Rensselaer v. Dennison, 35 N. Y. 393. The words usually employed in an inmay have his interest modified or destroyed by the happening of an event which may or may not occur.2 So the vesting of an estate may depend on such a contingency. The existence of such a condition does not affect the owner's powers of dealing with his estate. He may use the land, sell or mortgage it, just as if his interest was absolute instead of qualified.3 But any alienation or incumbrance will be defeated if the estate is terminated by the happening of the contingency on which it depends.4
103. Conditions are divided into two classes:
(a) Conditions precedent.
(b) Conditions subsequent.
Strument of conveyance to create a condition are "on condition," "provided," "so that," and "if it so happen." Co. Litt 203b, 204b; Stanley v. Colt, 5 Wall. 119; Bigelow, C. J., in Rawson v. School Dist., 7 Allen (Mass.) 125; Gray v. Blanchard, 8 Pick. (Mass.) 284; Warner v. Bennett, 31 Conn. 468; Hooper v. Cummings, 45 Me. 359. The use of these words is not essential, for a condition may be raised by any words which show such an intention. Hapgood v. Houghton, 22 Pick. (Mass.) 480; Attorney General v. Merrimack Manuf'g Co., 14 Gray (Mass.) 586; Watters v. Bredin, 70 Pa. St 235; Underhill v. Railroad Co., 20 Barb. (N. T.) 455; Gibert v. Peteler, 38 N. Y. 165; Worman v. Teagarden, 2 Ohio St. 380; Wheeler v. Walker, 2 Conn. 196; Bacon v. Huntington, 14 Conn. 92. But see Packard v. Ames, 16 Gray (Mass.) 327; Jennings v. O'brien, 47 Iowa, 392; Gadberry v. Sheppard. 27 Miss. 203. Nor does the use of the words given in all cases raise a condition. Episcopal City Mission v. Appleton, 117 Mass. 326; Sohier v. Trinity Church, 109 Mass. 1; Chapin v. Harris, 8 Allen (Mass.) 594. Estates on condition may be created by will or deed. Wheeler v. Walker, 2 Conn. 196. In some states it is provided by statute that conditions merely nominal shall be disregarded. 1 Stim. Am. St. Law, § 1361; 1 Shars. & B. Lead. Cas. Real Prop. 136.
2 Mr. Washburn treats in this connection eke interest which is acquired in land by its sale for debts, and calls such an interest an "estate on execution." Where, as in most states, the debtor has a period within which he can redeem, the Interest acquired by the execution purchaser is liable to be defeated by such a redemption. 2 Washb. Real Prop. (5th Ed.) 31.
3 Taylor v. Sutton, 15 Ga. 103; Shattuck v. Hastings, 99 Mass. 23; Chapman v. Pingree, 67 Me. 198. But see Slegel v. Lauer, 148 Pa. St 236, 23 Atl 996.
4 Gray v. Blanchard, 8 Pick. (Mass.) 284.
103a. Conditions precedent are conditions which must be fulfilled before the estate to which they are attached can vest.
104. Conditions subsequent are conditions upon the fulfillment or nonfulfillment of which an estate previously vested is defeated.
Conditions precedent are such as go before the estate to which they apply; that is, the happening of the event provided for in the condition creates an estate, or enlarges one already existing.5 If the contingency does not occur, the conveyance containing the condition never becomes operative.6 A condition subsequent diminishes or destroys the estate to which it is attached.7 The distinc5 Upington v. Corrigan, 69 Hun, 320, 23 N. Y. Supp. 451; In re Howard's Estate, 5 Misc. Rep. 295, 25 N. Y. Supp. 1111; Richards v. Richards, 90 Iowa, 606, 58 N. W. 926; Hurd v. Shelton, 64 Conn. 496, 30 Atl. 766; Moore v. Perry, 42 S. C. 369, 20 S. B. 200; City of Stockton v. Weber, 98 Cal. 433, 33 Pac. 332; Tilley v. King, 109 N. C. 461, 13 S. E. 936. Examples of conditions precedent are: That a devise shall not vest until the devisee's debts are paid. Nichol v. Levy, 5 Wall. 433. That a child shall be born to the grantees. Karchner v. Hoy, 151 Pa. St 383, 25 Atl. 20. That a devisee shall abstain from the use of intoxicating liquors for five years. In re Steven's Estate, 164 Pa. St. 209, 30 Atl. 243. That the grantee support the grantors during their lives. Lashley v. Souder (N. J. Ch.) 24 Atl. 919.
6 Donohue v. Mcnichol, 61 Pa, St. 73; Mizell v. Burnett, 4 Jones (N. C.) 249.
7 Rice v. Railroad Corp., 12 Allen (Mass.) 141; Harrison v. Foote (Tex. Civ. App.) 30 S. W. 83S; Mills v. Railway Co., 10 Wash. 520, 39 Pac. 246; Reichen-bach v. Railway Co., 10 Wash. 357, 38 Pac. 1126; Bank of Suisun v. Stark, 106 Cal. 202, 39 Pac. 531; Ritchie v. Railway Co., 55 Kan. 36, 39 Pac. 718; Mc-clure v. Cook, 39 W. Va. 579, 20 S. E. 612. But see Baker v. Mott, 78 Hun, 141, 28 N. Y. Supp. 968; Kilpatrick v. Baltimore, 81 Md. 179, 31 Atl. 805; Studdard v. Wells, 120 Mo. 25, 25 S. W. 201; Ely ton Land Co. v. South & North Alabama R. Co., 100 Ala. 396, 14 South. 207. The following are conditions subsequent: Devise of real estate to a town for the purpose of building a school house, "provided it is built within 100 rods of the place where the meetinghouse now stands." Hayden v. Stoughton, 5 Pick. (Mass.) 528. Devise to A. and his heirs, if he live to 21. Edwards v. Hammond, 3 Lev. 132. Devise to one provided he supports the grantor for life. Spauld-ing v. Hallenbeck, 39 Barb. (N. Y.) 79. That the land conveyed shall not be used for certain purposes, Hayes v. Railway Co., 51 N. J. Eq. 345, 27 Atl 648; Odessa Imp. & Irr. Co. v. Dawson, 5 Tex. Civ. App. 487, 24 S. W. 576; tion between conditions precedent and subsequent depends on the intention of the parties, and the attendant circumstances.8 The courts, however, construe conditions as subsequent, rather than as precedent.9 Thus it is held, in cases of doubt, that an estate vests at once, subject to be defeated by nonperformance of conditions, rather than that the grantee must perform before he is entitled to the estate.10 The time within which the condition must be performed is usually expressly stated, but, if it is not, the grantee has a reasonable time,11 or his whole life, according to the circumstances of the case, and the probable intention of the parties.12
105. Conditions which are illegal or impossible of performance are void, and -when precedent, prevent estates depending on them from vesting, but, when subsequent, are of no effect.
Not all conditions which may be imposed are valid A condition may be invalid because its performance is impossible,13 or because it is illegal. The illegal conditions most frequently imposed are those in restraint of alienation and of marriage. Conditions in restraint of alienation will be discussed in a subsequent chapter.14
Hopkins v. Smith, 1G2 Mass. 444, 38 N. E. 1122 (but see Jenks v. Pawlowski, 98 Mich. 110, 56 N. W. 1105); or shall be built upon only in a certain manner Ogontz Land & Imp. Co. v. Johnson, 168 Pa. St. 178, 31 Atl. 1008; Reardon v. Murphy, 163 Mass. 501, 40 N. E. 854.
8 Underbill v. Railway Co., 20 Barb. (N. Y.) 455; Burnett v. Strong, 26 Miss. 116; Joins v. Railway Co., 14 W. Va. 514.
9 Martin v. Ballou, 13 Barb. (N. Y.) 119; Bell Co. v. Alexander, 22 Tex. 350. And see Webster v. Cooper, 14 How. 488; Taylor v. Mason, 9 Wheat 325; Sackett v. Mallory, 1 Mete. (Mass.) 355; Tallman v. Snow, 35 Me. 342.
10 Fiulay v. Mitchell, 3 Pet. 346.
11 Hamilton v. Elliott, 5 Serg. & R. 375; Allen v. Howe, 105 Mass. 241. As in a case where he is to pay off a mortgage, no time being expressed. Rowell v. Jewett, 69 Me. 293.
12 Marshall, C. J., in Finlay v. King, 3 Pet. 346.
13 a condition may become impossible by act of God, Thomas v. Howell, 1 Salk. 170; or by act of law, Board of Com'rs of Mahoning Co. v. Young, 8 C. C. A. 27, 59 Fed. 96; Scovill v. Mcmahon, 62 Conn. 378, 26 Atl 479.
14 See post, 394. Jenner v. Gumer, 16 Ch. Div. 188; Hodgson v. Halford,