This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
Since, as stated in another part of this work,93 a conveyance, whatever may be its form, will, if necessary to its operation, be supported as a bargain and sale or cove-nanl to stand seised, provided there existed the proper consideration for such species of conveyance, and, since there may be a limitation of an estate to arise in the future by either of these classes of conveyance,94 a conveyance, if supported by a consideration, will, in most jurisdictions, be effective to create such an estate whenever it purports so to do, however invalid the limitation would have been at common law, or would be now if the conveyance could not take effect under the Statute of Uses.95
Since one can, by a bargain and sale, create an estate in favor of another subject to a condition precedent, it might have been anticipated that one might, by such a conveyance, create an estate in favor of a person or persons subsequently to be ascertained, or subsequently such a case, as in the case of a shifting use,21 the condition is precedent to the commencement of the estate in B, and is not a condition subsequent annexed to the estate of A
92. See Taylor v. McCowen, 154 Cal. 798, 99 Pac. 351; Bryan v. Eason, 147 N. C. 284, 61 S. E. 71. 61 S. E. 71.
92a. Ante Sec. 156. 92b. See Leake, Prop, in Land. 352.
93. Post Sec. 432.
94. Sugdea's Gilbert, Uses, 163; Doe d. Wilkinson v. Tran-mer, 2 Wils. 75; Brewton v. Watson, 67 Ala. 121; Shackleton v. Sebree, 86 111. 616; Wyman v. Brown, 50 Me. 139; Bell v. Scam-mon, 15 N. H. 381, 41 Am. Dec. 706; Rogers v. Eagle Fire Co., 9 Wend. (N. Y.) 611; Savage v. Lee, 90 N. C. 320; Ferguson v. Mason, 60 Wis. 377, 19 N. W. 420.
The Massachusetts decisions (Welsh v. Foster, 12 Mass. 93; Brewer v. Hardy, 22 Pick. 376, and other cases), to the effect that an estate to commence in futuro can not be created by a bargain and sale, enunciate a doctrine peculiar to that state. See Gray, Perpetuities, Sec. 57; Wyman v. Brown 50 Me. 139. This erroneous doctrine has been, as stated by Profes sor Gray, rendered harmless by another doctrine peculiar to that state, that a covenant to stand seised can be raised on a pecuniary consideration. See Trafton v. Hawes, 102 Mass. 533.
95. See Gray, Perpetuities, Sec.Sec. 52-68.
96. Sugden's Gilbert on Uses, 91, 398; Sanders, Uses, (5th Ed.) 62; Smith v. Smith, Jones, Law, (N. C.) 135.
97-98. Gray, Perpetuities, Sec.Sec. 61-63.
99. Citing 2 Rolle's Abr. 784, pl. 6, 7; 2 Co. Inst. 672; Buckley v. Simmonds, Winch. 59, 61; Case of Sutton's Hospital, 10 Co. 23, 23a.
1. Mildmay's Case, 1 Co. Rep. 175; Pibus v. Mitford, 2 Lev. 75, 1 Vent. 372, 1 Carth. 263, 1 Mod. 98; Sugden Powers (8th Ed.) 138, 139; Hayes, Limitations, 66, 71; 1 Sanders, Uses & Trusts (5th Ed.) 142; Gray, Perpetuities, Sec. 62.
2-5. Post Sec. 434.
6. Varner v. Young, 56 Ala. 260; Benham v. Davidson, 51 Cal. 352; Plant v. Plant, 122 Ga. 763, 50 S. E. 961; Heyward Williams Co. v. McCall, 140 Ga. 502, 79 S. E. 133; King v. Rea, 56 Ind. 1, 15; Glass v. Glass, 71 Ind. 392; Goodridge v. Goodridge, 91 Ky. 507, 16 S. W. 270; Kinney v. Matthews, 69 Mo. 520; Heat v. Heath, 114 N. C. 547; 19 S. E. 155; Beecher v. Hicks, 7 Lea (Tenn.) 207; Livingston v. Livingston, 84 Tenn. 448; Contra, Mellichamp v. Mellichamp, 28 S, Car. 125.
Shifting uses and executory devises which thus take effect in derogation of estates previously limited by the same instrument are frequently termed "conditional limitations."22