One to whom an estate on condition subsequent is given has an estate in the land which is liable to termination on breach of the condition, but until such termination he has the same rights and powers in connection with the estate as if the condition did not exist, and it may be transferred by him or by operation of law, subject to be terminated, however, in the hands of the transferee.66

61. Post Sec. 163.

62. Post Sec. 86(a).

63. Post Sec. 84.

64. Post Sec. 85.

65. The condition precedent may be the doing of some act by the grantor or testator. Goff v. Pensenhafer, 190 111. 200, 60 N. E. 110.

A condition subsequent, like a condition precedent, may involve the doing or not doing of an act of a purely voluntary character, either by the grantee or devisee of the estate, or by another, or the occurrence or non occurrence of some event of a partially or wholly involuntary nature. In the great majority of cases, whether there is a breach of the condition, so as to enable the creator of the estate subject to the condition, or his successor in interest, to terminate the estate, depends on the action of the person in favor of whom the estate was created, or his successor in interest, in doing, or failing to do, some particular thing, and this occurs with especial frequency in the case of a lease containing a provision for "re-entry" by the lessor on a default by the lessee in some provision of the lease. But a condition subsequent may involve the doing or not doing of a particular act by the grantor, as in the case of the common law mortgage, by which the grantor is given a right to re-enter in case he, the grantor, pays a certain sum to the grantor within a given time.67 Or it may involve voluntary action only to a limited extent, as when a lease is made subject to a right of re-entry or "forfeiture" in case the lessee becomes bankrupt.

A condition subsequent is to be distinguished from what we will subsequently discuss under the name of a

66. Challis, Real Prop (3rd Ed.) 193; Wadley Lumber Co. v. Lott, 130 Ga. 135, GO S. E. 836: Lamb's Estate v. Morrow, 140 Iowa 89, 18 L. R. A. (N. S.) 226, 117 N. W. 1118; Chapman v. Pingree, 67 Me. 198; Shattuck v. Hastings, 99 Mass. 23; Memphis

& C. R. Co. v. Neighbors, 51 Miss. 412; Minneapolis Threshing

Mach. Co. v. Hanson, 101 Minn. 2G0, 118 Am. St. Rep. 623, 112 N. W. 217; Jackson v. Topping, 1 Wend. (N. Y.) 388. 19 Am. Dec. 515. 67. Post Sec. 599.

"special limitation." In the case of a special limitation, the estate terminates by force of the limitation alone, while, in the case of a condition, the estate does not terminate upon its breach, unless an entry or claim is made by the person entitled to take advantage of the condition.68 A condition subsequent is also to be distinguished from a covenant, a breach of which cannot, in the absence of a statutory provision to the contrary,69 affect the estate of the covenantor, but gives to the grantor or lessor, with whom the covenant is made, a right of action to recover damages, for breach thereof,70 or occasionally a right to an injunction71 or a decree for specific performance,72 neither of which is given by a condition.73 A covenant, however, may be accompanied by a condition subsequent giving a right to terminate the estate of the covenantor on its breach, and this is in fact the most ordinary form of an estate on condition subsequent at the present day; a lease for years usually providing for such optional termination by the landlord, or right of "re-entry," on breach of a covenant by the lessee.74 Thus there may be a condition terminating the lessee's term for breach of a covenant to repair,75 to use the premises in a certain way,76 to erect improvements,77 not to assign or sublease,78 or to pay rent.79 In such a case the grantor or lessor has, upon a default by the grantee or lessee, the remedies incident to both a condition and a covenant.80 A condition is also to be distinguished from a trust, the latter not involving any possibility of forfeiture of the tenant's estate, but merely the interposition of equity, if necessary, to compel his performance of the stipulations in the instrument.81

68. Co. Litt. 214b; 2 Blackst. Comm. 155; Challis, Real Prop. 233; Beach v. Nixon, 9 N. Y. 35; Lyford v. City of Laconia, 75 N. H. 220, 22 L. R. 3. (N. S.) 1062, 139 Am. St. Rep. 680, 72 Atl. 1085. See post Sec. 90.

69. Post Sec. 77.

70. Buckner v. Warren, 41 Ark. 532; Weller v. Brown, 160 Cal. 515, 117 Pac. 517; Thornton v. Trammell, 39 Ga. 202; Brown's Adm'rs v. Bragg, 22 Ind. 122; De Lancey v. Ganong, 9 N. Y. 9; Woodruff v. Trenton Water Power Co., 10 N. J. Eq. 489, 508; Spear v. Fuller, 8 N. H. 174, 28 Am. Dec. 391; Simmons v. Jarman, 122 N. C. 195, 29 S. E. 332; Smith v. People's Natural Gas Co., 257 Pa. 396, 101 Atl. 739; Johnson v. Gur-ley, 52 Tex. 222; But in Jinnings v. Amend. 101 Kan. 130, 165 Pac. 845, a contrary view appears to have been applied, merely in order to protect the landlord from possible loss, the lease involving the sharing of crops, and the tenant having been sentenced to imprisonment..

71. See Godfrey v. Black, 39 Kan. 193, 7 Am. St. Rep. 544, 17 Pac. 849; Maddox v. White, 4 Md. 72, 59 Am. Dec. 67; Spalding Hotel Co. v. Emerson, 69 Minn. 292, 72 N. W. 119; Orvis v. National Commercial Bank, 81 (N. Y.) App. Div. 631, 80 N. Y. Supp. 1029; Joseph Schlitz Brewing Co. v. Nielsen, 77 Neb. 868, 8 L. R. A. (N. S.) 494, 110 N. W. 746; Mc-Eacharn v. Colton [1902] App. Cas. 104.

72. See Tscheider v. Biddle, Fed. Cas. No. 14210, 4 Dill. 58; Monihon v. Wakelin, 6 Ariz. 225, 56 Pac. 735; Hall v. Center, 40 Cal. 63; Worthington v. Lee, 61 Md. 530; King v. Raab, 123 Iowa 632, 99 N. W. 306; Hayes v. O'Brien, 149 111. 403, 23 L. R. A. 555, 37 N. E. 73; Arnot v. Alexander, 44 Mo. 25, 100 Am. Dec. 252; New York Life Ins. & Trust Co. v. St. George's Church, 12 Abb. N. C. (N. Y.) 50; Kollock v. Scribner 98 Wis. 104, 73 N. W. 776.

73. Post Sec. 85 note 60.