71. In England, rights of entry for breach of condition may now, by statute, be assigned, or may be devised. St. 8 & 9 Vict. C 106, Sec. 6 (1845); 1 Vict. c. 26, Sec. 3 (1837). See Leake, Prop, in Land, 59. For references to similar state statutes, see Southard v. Central R. Co., 26 N. J. Law, 13; Hoyt v. Ketcham, 54 Conn. 60, 5 Atl. 606.

In Pinkum v. City of Eau Claire, 81 Wis. 301, 51 N. W. 550, and in Stevens v. Galveston, H. & S. A. Ry. Co., - Tex. -, 169 S. W. 644, it was decided that when an easement had been created on condition, a subsequent grantee of the land could take advantage of the condition, the rule against the assignment of rights of entry not being applicable.

Real Property.

[Sec.86 involve an amplication of the general rule that "nothing in action, entry or re-entry can be granted over" which general rule is imputed by him to a desire to avoid maintenance and the stirring up of litigation.72 Coke's dictum in this regard is not infrequently referred to; and in one or two jurisdictions the validity of the transfer of a right of re-entry for breach of condition has been supported on the ground that the doctrine of maintenance is there no longer in force.73 The researches of modern scholars, however, indicate that the non transferability of choses in action and rights of entry had its origin not so much in a desire to avoid maintenance as in the general acceptance of the theory that rights of entry or action were strictly personal, and that one who had merely a right of entry had nothing capable of manual transfer, the only mode of transfer recognized in early times.74 But however this may be, in any jurisdiction where one disseised is, without the interposition of a statute, accorded the right to transfer land in the adverse possession of another,75 it would seem that the grantor should have the right to transfer the right of re-entry after a breach of the condition Las occurred, since after breach his right of entry is absolute, as is that of one disseised, and there is at least one decision recognizing such right of transfer after breach, as distinguished from the right before breach.76 In the latter case, that is, before breach,

72. Co. Litt. 214a; Lampet's Case, 10 Coke Rep. 48.

73. Bouvier v. Baltimore & N. Y. Ry. Co., 67 N. J. L. 281, 60 L. R. A. 750, 51 Atl. 781 (alienation after breach); McKissick v. Pickle, 16 Pa. 140, 146.

74. P. W. Maitland in 2 Law Quart. Rev. at p. 495; Pollock, Contracts, (7th Ed.) 217.

75. Post Sec. 590.

In Moore v. Sharpe, 91 Ark.

407, 23 L. R. A. (N. S.) 937, 121 S. W. 341, it was held that a statute authorizing one to convey land in another's possession entitled one to convey a right of re-entry for breach of condition. 76. Bouvier v. Baltimore & N. Y. Ry. Co., 67 N. J. L. 281, 60 L. R. A. 750; 51 Atl. 781. And see Church of Henderson, Methodist Protestant, v. Young, 130 N. C. 8, 40 S. E. 691. Contra School the grantor's right of entry is no more than a possibility, and it is accordingly in entire accord with the common law rule that a mere possibility is not susceptible of transfer, that a contingent right of re-entry should be regarded as not transferable. In view, however, of the general recognition at the present time of the transferability of contingent remainders and executory in-terests in favor of ascertained persons, it is to be anticipated that the possibility of an estate represented by the right to enforce a condition subsequent will in time become the subject of transfer.77

As regards the right of one, who has made a conveyance in fee simple, subject to a condition subsequent, to transfer his right of re-entry by will, there are eases in this country which recognize the existence of the right,78 while in other cases such right has been denied, a transfer by will being placed in this regard on the same footing as a transfer inter vivos.79 The question is properly one of the language and construction of the statute or statutes authorizing the disposition of property by will,80 and occasionally, when the local statute provided that whatever is descendible shall be devisable, the courts, in excluding the power to dispose by will of the right of re-entry, have taken the view that the anothr part in another person, would be, by the common law authorities, to destroy the condition.88 The rule forbidding the appointment of conditions has however never been applied to an apportionment by act of the law, as when the reversion in different parts of the premises passes to different persons by descent,89 or a part of the land is taken under the power of eminent domain.90 And one to whom a partial interest in the reversion in the whole premises is transferred, as by a concurrent lease,91 may enforce the condition.92

Dist. No. 21 of Wallowa County v. Wallowa County, 71 Ore. 337, 142 Pac. 320.

77. Post Sec.Sec. 147, 176.

78. Hayden v. Inhabitants of Stoughton, 5 Pick. (Mass.) 528, L. R. A. 276, 21 N. E. 850; Austin v. Cambridgeport Parish, 21 Pick. (Mass.) 215, 224; Clapp v. Wilder, 176 Mass. 332, 337, 50 L. R. A. 120, 57 N. E. 692; Bcone v. Clark, 129 111. 466, (dictum); Kenner v. American Contract Co., 9 Bush. (Ky.) 202. The Kentucky decision is expressly based on the Massachusetts decision first cited, where the point appears to have been assumed.

79. Ruch v. Rock Island, 97 U. S. 693, 24 L. Ed. 1101; Southard v. Central R. Co., 26 N. J. Law, 13; Upington v. Corrigan, 151 N. Y. 143, 37 L. R. A. 794, 45 N. E. 359.

80. That the right of re-entry, by force of a local statute, passes by will, see Ball v. Milliken, 31 R. I. 36, 37 L. R. A. (N. S.) 623, Am. Cas. 1912B 30, 76 Atl. 789; Cornelius v. Ivins, 26 N. J. L. 376.

That even a statute authorizright is exercisable by the heir merely as representative of the original grantor, his ancestor, and that it does not pass to him by way of descent.81

It appears that an attempted transfer inter vivos of the right of re-entry, although invalid for the purpose of transferring the right, divests the right out of the grantor, that is, the effect of an attempt to make a transfer is to extinguish the right.82

- (c) Right passing with reversion. The common-law rule prohibiting the transfer of the right to re-enter for breach of a condition was changed by St. 32 Hen. 8, c. 35 as regards conditions in leases for life or years, so as to allow the grantee of the reversion to avail himself of the condition. This statute is recoging a devise of a right of entry for condition broken did not authorize a devise of the contingent right before breach, see Church of Henderson, Methodist Protestant v. Young, 130 N. C. 8, 40 S. E. 691.

81. Upington v. Corrigan, 151 N. Y. 143, 37 L. R. A. 794, 45 N. E. 359; Southwick v. New York Missionary Soc, 151 N. Y. App. Div. 116, 135 N. Y. Supp. 392; Ashuelot Nat. Bank v. Keene, 74 N. H. 148, 9 L. R. A. (N. S.) 758, 65 Atl. 826. This distinction finds some support in Professor Ames' statement in 3 Harv. Law Rev. at p. 26, Lectures on Legal History 175, And see post, Sec. 487.

82. Hooper v. Cummings, 45 Me. 359; Rice v. Boston & W. R. Corporation, 12 Allen (Mass.) 141; Tinkham v. Erie R. Co., 53 Barb. (N. Y.) 393; Berenbroick v. St. Luke's Hospital, 23 N. Y.' App. Div. 339, 48 N. Y. Supp. 363; Stevens v. Galveston, H. & S. A. Ry. Co., - Tex. Civ. App. -, 169

S. W. 644; Board of Education of Humphreys County v. Baker, 124 Tenn. 39, 134 S. W. 863.

In support of such a rule, a statement in 1 Sheppard's Touchstone at pp. 157, 158, and one in 5 Vin. Abr., Condition (I. d. 11) have been quoted. See Rice v. Boston & W. R. Corporation, 12 Allen (Mass.) 141. Sheppard cites no authority, but his statement accords with a dictum of Coke, when Attorney General, in Ferrers v. Borough, Cro. Eliz. 665. The statement in Viner is based on a dictum, in Warren v. Lee, Dyer 127. The rule, conceding its existence, probably had its origin in an assumed analogy to the case of the transfer of a reversion, which had the effect, at common law, of destroying any condition of the lease. Post note 88.

That this rule, conceding its existence, does not apply to an attempted transfer of his right of entry by one heir to another, since this does not involve the connized as in force in some slates, while in some there are local statutes having a like effect in this regard.83 In no state, indeed, has the right of the transferee of the reversion to enforce a forfeiture been denied.

The English statute, in its application to conditions, was construed in the same way as it was in regard to covenants84 and it was held to apply only to conditions which touch and concern the land.85 It does not, from its very terms, apply to conditions in conveyances in fee simple, where there is no reversion.86

The English statute, above referred to, has been decided not to make a condition apportionable by the act of the parties, and consequently not to authorize an enforcement of the condition by one to whom the reversion in part only of the premises has been voluntarily transferred,87 and the effect of the severance of the reversion, that is, of vesting the reversion in part of the demised premises in one person and of that in ferring of the right of forfeiture upon a stranger, see Bouvier v. Baltimore & N. Y. Ry. Co., 67 N. J. L. 281, 60 L. R. A. 750. 51 Atl. 781; Southwick v. New York Christian Missionary Soc., 151 N. Y. App. Div. 116, 135 N. Y. Supp. 392; 12 Columbia Law Rev. 649.

83. See 1 Tiffany, Landlord & Ten. Sec. 149b (1).

84. Ante Sec. 53 (b).

85. Co. Litt. 215a; Stevens v. Copp, L. R. 4 Exch. 20; Stock-bridge Iron Co. v. Cone Iron Works, 102 Mass. 80.

86. Lewes v. Ridge, Cro. Eliz. 863; 1 Smith, Lead. Cas. 137. Compare Van Rensselaer v. Hays, 19 N. Y. 68; Van Rensselaer v. Ball, 19 N. Y. 100, construing the New York statute as giving the assignees of a grantor in fee reserving rent, the right of entry.

87. Co. Litt. 215a, and note; Dumpor's Case, 4 Coke, 119b. 1 Smith's Lead. Cas. 95, Van Rensselaer v. Jewett, 5 Denio (N. Y.) 121; Cruger v. McLaury, 41 N. Y. 219; Tinkham v. Erie Ry. Co., 53 Barb. (N. Y.) 393; Wright v. Bur-roughes, 3 C. B. 685; Twynam v. Pickard, 2 Barn. & Ald. 105. The reason for the rule forbidding the apportionment of a condition is stated to be that the grantor should be in of his original estate on the enforcement of the condition, which could not be if he has parted with the reversion in part. Dumpor's Case, 4 Coke, 119b. See the adverse criticism of the rule by Joseph Willard, Esq., 7 Am. Law Rev. 621-623. See also Moss v. Chappell, 126 Ga. 196, 11 L. It. A. (N. S.) 398, 54 S. E. 968.

The statute of 32 Hen. 8, or its American counterpart, does not enable a transferee of the reversion to enforce a forfeiture for breach of condition if the breach occurred before the making of the transfer.93