General conditions in restraint of marriage are void. Partial restrictions on marriage, such as not to marry a named person, or any one of a named family, are generally sustained, even without a limitation over, but are narrowly interpreted;15 and so as to conditions against marrying without consent of parents, or of those who stand in loco parentis.16
Where a gift or devise is made to an unmarried woman, with a condition that the estate shall cease upon marriage, the condition, being in restraint of marriage, is said to be against the policy of the law; and it has generally been held that, unless the instrument imposing the condition says also to whom the estate shall go in case of disobedience, the condition is deemed to have been inserted in terrorem only, and may be disregarded. Here is a distinction against the heirs of the donor, and in favor of the strangers whom he may name by way of conditional limitation, for which no good reason can be given, but which seems to be well established, for the cases are very rare in which the condition without limitation over has been deemed valid.17
A void condition, if precedent, prevents the estate depending on it from vesting at all;18 but, if subsequent, the condition is of no effect, and the estate becomes absolute.19
11 Oh. Div. 959; Graydon's Ex'rs v. Graydon, 23 N. J. Eq. 229; Phillips v. Ferguson, 85 Va. 509, 8 S. E. 241; Hogan v. Curtin, 88 N. Y. 162; Kelly v. Monck, 3 Ridg. App. 205; Maddox v. Maddox's Adm'r, 11 Grat. (Va.) 804.
15 Phillips v. Ferguson, 85 Va. 509, 8 S. E. 241.
16 Denneld, Petitioner, 156 Mass. 265, 30 N. E. 1018.
17 otis v. Prince, 10 Gray (Mass.) 581. For other conditions which have been held illegal, see Newkerk v. Newkerk, 2 Caines (N. Y.) 345; Brown v. Peck, 1 Eden, 140; Wren v. Bradley, 2 De Gex & S. 49.
18 Roundel v. Currer, 2 Brown, Ch. 67; Priestley v. Holgate, 3 Kay & J. 286. But see In re Moore, 39 Ch. Div. 116.
19 Thomas v. Howell, 1 Salk. 170; Lowther v. Cavendish, 1 Eden, 99; Peyton v. Bury, 2 P. Wms. 626; Collett v. Collett, 35 Beav. 312; Booth v. Meyer, 38 Law T. (N. S.) 125; O'brien v. Barkley, 78 Hun, 609, 28 N. Y. Supp. 1049; Hoss v. Hoss, 140 lnd. 551, 39 N. E. 255.
106. An estate on conditions subsequent is not determined by a breach of condition until there has been an entry, except:
Exceptions-(a) Commencing an action of ejectment is equivalent to an entry.
(b) If the grantor is in possession, the forfeiture is complete when a breach occurs.
106a. An estate on condition may come to a natural termination -without a breach of the condition.
The breach of a condition gives the grantor an option to terminate the estate.20 This he can do only by an entry,21 but no previous demand of performance is necessary.22 The technical action of ejectment has the same effect, because an entry is held to be confessed.23 When, however, the grantor is in possession at the time a breach occurs, the forfeiture is complete without any act on his part,24 unless he elects otherwise.25 The performance of a condition may be waived, and a breach would then not work a forfeiture.26 Or after a breach has occurred the forfeiture may be waived by express agreement, or by acts of the grantor having the same effect;27 for instance, accepting performance of the condition at a subsequent time.28 Such waiver cuts off the right to claim a forfeiture,29 but not the right to an action for a breach of covenant in a proper case.30 Mere delay to enforce the forfeiture will not constitute a waiver,31 and acquiescence in a breach will not bar the right to a forfeiture for a subsequent breach.32 Equity sometimes relieves from forfeitures for breach of conditions, where the breach is due to accident, and the grantor can be compensated by damages as by the payment of a sum of money with interest.33 But other24 Skeaffer v. Sheaffer, 37 Pa. St. 525; President, etc., of Lincoln & K. Bank v. Druramond, 5 Mass. 322; Collins v. Riley, 44 N. H. 9; Willard v. Olcott, 2 N. H. 120; Guffy v. Hukill, 34 W. Va. 49, 11 S. E. 754; Andrews v. Senter, 32 Ale. 394. But see Stone v. Ellis, 9 Cush. (Mass.) 95.
20 It is not necessary that any damage to the grantor has been caused by the breach. Sioux City & St. P. R. Co. v. Singer, 49 Minn. 301, 51 N. W. 905. The grantee cannot insist that he has forfeited his estate by a breach. Davenport v. Reg., 3 App. Cas. 115; Rede v. Farr, 6 Maule & S. 121. As to what constitutes a breach, see Razor v. Razor, 142 111. 375, 31 N. E. 678; Rose v. Hawley, 141 N. Y. 366, 36 N. E. 335; City of Quincy v. Attorney General, 160 Mass. 431, 35 N. E. 1066; Hurto v. Grant, 90 Iowa, 414, 57 N. W. 899; Crawford v. Wearn, 115 N. C. 540, 20 S. E. 724; Madigan v. Burns (N. H.) 29 Atl. 454.
21 Warner v. Bennett, 31 Conn. 468; Bowen v. Bowen, 18 Conn. 535; Hubbard v. Hubbard, 97" Mass. 188; Guild v. Richards, 16 Gray (Mass.) 309; Adams v. Lindell, 5 Mo. App. 197; Kenner v. Contract Co., 9 Bush (Ky.) 202;; Tallman v. Snow, 35 Me. 342;Sperry v. Sperry, 8 N. H. 477; Memphis & C. R. Co. v. Neighbors, 51 Miss. 412; Phelps v. Chesson, 12 Ired. (N. C.) 194. But see Schlesinger v. Railroad Co., 152 U. S. 444, 14 Sup. Ct. 647. A right of entry need not be expressly reserved. Gray v. Blanchard, 8 Pick. (Mass.) 2S4; Thomas v. Record, 47 Me. 500.
22 Hamilton v. Elliott, 5 Serg. & R. (Pa.) 375.
23 Ruch v. Rock Island, 97 U. S. 693; Jackson v. Crysler, 1 Johns. Cas. (N. Y.) 125; Cornelius v. Den, 26 N. J. Law, 376. After seeking to enforce a forfeiture by ejectment, the lessor cannot sue for rent subsequently accruing. Jones v. Carter, 15 Mees. & W. 718.
25 Andrews v. Senter, 32 Me. 394; Willard v. Olcott, 2 N. H. 120.
26 Jones v. Doe, 2 111. 27G; Lamb v. Miller, 18 Pa. St. 448; Petro v. Cassiday, 13 Ind. 289; Boone v. Tipton, 15 Ind. 270; Jones v. Railway Co., 14 W. Va. 514; Jones v. Walker, 13 B. Mon. (Ky.) 163. So a license excusing a breach as to part of the premises discharges the whole condition. Leede's & Crompton's Case, Godb. 93. But see 7 Am. Law Rev. 616, criticising Dum-por's Case, 4 Coke, 119b, and Brummell v. Macpherson, 14 Ves. 173.
27 Barrie v. Smith, 47 Mich. 130, 10 N. W. 168; Sharon Iron Co. v. City of Erie, 41 Pa. St. 341; Hubbard v. Hubbard, 97 Mass. 188; Pennant's Case, 3 Coke, 64a.
28 An acceptance of rent accruing after the breach is a waiver, Jackson v. Allen, 3 Cow. (N. Y.) 220; Goodright v. Davids, 2 Cowp. 803; or a demand for rent so accruing, Camp v. Scott, 47 Conn. 366; or bringing an action for It, Dendy v. Nicholl, 4 C. B. (N. S.) 376.
29 Lehigh Coal & Nav. Co. v. Early, 162 Pa. St 338, 29 Atl. 736. 30 Dickey v. M'cullough, 2 Watts & S. 88.
31 But may be strong evidence of it. Ludlow v. Railway Co., 12 Barb. (N. Y.) 440; Hooper v. Cummings, 45 Me. 359.
32 Doe v. Jones, 5 Exch. 498; Doe v. Bliss, 4 Taunt. 735; Ambler v. Wood-bridge, 9 Barn. & C. 376; Flower v. Peck, 1 Barn. & Adol. 428; Bleeker v. Smith, 13 Wend. (N. Y.) 530; Price v. Norwood, 4 Hurl. & N. 512; Crocker v. Society, 106 Mass. 489; Gillis v. Bailey, 21 N. H. 149.
33 Rogan v. Walker, 1 Wis. 527; Sanborn v. Woodman, 5 Cush. (Mass.) 36; Hancock v. Carlton, 6 Gray (Mass.) 39; Carpenter v. Westcott, 4 R. I. 225; Henry v. Tupper, 29 Vt 358.
Wise equity will not give relief. Therefore, for breaches of conditions to repair, to insure, etc., equity will leave the parties to their remedies at law.34
An estate on condition may expire under the form of the limitation, the same as an absolute estale. Thus, where a life estate is given on condition, the death of the life tenant puts an end to the estate, though the condition has not been broken.
107. An entry to enforce a forfeiture for a breach, of condition can be made only by the grantor, or his heirs, except: Exception-the assignee of a reversion after a leasehold estate can enforce covenants which run with the land.
The right of entry for breach of condition, to defeat an estate, cannot be reserved to a third person, but only to the grantor and his heirs.35 Neither can it be assigned or transferred with a grant of the reversion.36 As to whether a devisee of the grantor may enforce a forfeiture, the cases are conflicting.37 But these rules do
34 Dunklee v. Adams, 20 Vt 415; Green v. Bridges, 4 Sim. 96; Hill v. Barclay, 18 Ves. 56. Equity, on the other hand, will not enforce a forfeiture. Fetter, Eq. 112.
35 Fonda v. Sage, 46 Barb. (N. Y.) 109; Van Rensselaer v. Ball, 19 N. Y. 100; Marwick v. Andrews, 25 Me. 525. Contra, Mckissick v. Pickle, 16 Pa, St. 140. And see Pinkum v. City of Eau Claire, 81 Wis. 301, 51 N. W. 550. Nor can a stranger raise the question of a forfeiture. Board of Education of Normal School Dist. v. Trustees of First Baptist Church of Normal, 63 111. 204; Schulenberg v. Harriman, 21 Wall. 44; Rector, etc., of King's Chapel v. Pel-ham, 9 Mass. 501; Smith v. Brannan, 13 Cal. 107; Dewey v. Williams, 40 N. H. 222; Norris v. Milner, 20 Ga. 563.
36 Vermont v. Society for Propagation of Gospel, 2 Paine, 545, Fed. Cas. No. 16,920; Rice v. Railroad Co., 12 Allen (Mass.) 141; Nicoll v. Railroad Co., 12 N. Y. 121; Underhill v. Railroad Co., 20 Barb. (N. Y.) 455; Warner v. Bennett, 31 Conn. 468.
37 As holding that he cannot, see Den v. Railroad Co., 26 N. J. Law, 13. Contra, Austin v. Cambridgepcrt Parish, 21 Pick. (Mass.) 215.
§ 108) not apply to leasehold estates, for the assignee of the reversion can enforce covenants which run with the land.38