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 .
On the principle of hostility to conditions, before referred to, a condition precedent is construed strictly in favor of vesting the estate, while a condition subsequent is construed strictly against divesting the estate.13
Rep. 142, 13 Pac. 890; First Methodist Church v. Old Columbia Public Ground Co., 103 Pa. 608; Ecroyd v. Coggeshall, 21 R. I. 1, 79 Am. St. Rep. 741, 41 Atl. 260; Long v. Moore, 19 Tex. Civ. App. 363, 48 S. W. 43; Brown v. Caldwell, 23 W. Va. 187, 191, 48 Am. Rep. 376.
12. Seaboard Air Line R. Co. v. Anniston Mfg. Co., 186 Ala. 264, 65 So. 187; Neely v. Hoskins, 84 Me. 386, 24 Atl. 882; Rawson v. Inhabitants of School Dist. No. 5 in Uxbridge, 7 Allen (Mass.) 125, 83 Am. Dec. 670; Field v. City of Providence, 17 R. I. 803, 24 Atl. 143; Ecroyd v. Coggeshall, 21 R. I. 1, 79 Am. St. Rep. 741, 41 Atl. 260; Brown v. Caldwell, 23 W. Va. 187, 48 Am. Rep. 376; See Flaten v. City of Moorhead, 51 Minn. 518, 19 L. R. A. 195, 53 N. W. 807; Estes v. Muskegon County Agricultural Driving Park Ass'n., 181 Mich. 71, 147 N. W. 553.
13. Co. Litt. 218a, 219b; 4 Kent, Comm. 129; Mead v. Ballard. 7 Wall. (U. S.) 290, 19 L. Td. 190; Fitzgerald v. Modoc County, 164 Cal. 493, 44 L. R. A. (N. S.) 1229,
129 Pac. 794; Voris v. Renshaw, 49 111. 425, Koch v. Streuter, 232 111. 594, 83 N. E. 1072; Peden v. Chicago, R. I. & p. Ry. Co., 5 Am. St. Rep. 680, 73 Iowa 328; Brad-street v. Clark, 21 Pick. (Mass.) 389; Howe v. City of Lowell, 171 Mass. 575, 51 N. E. 536; Morrill v. Wabash, St. L. & P. Ry. Co., 96 Mo. 174, 9 S. W. 657; Emerson v. Simpson, 43 N. H. 475, 82 Am. Dec. 168; McKelway v. Seymour, 29 N. J. L. 321; Riggs v. Pursell, 66 N. Y. 193; White v. Britton, 75 S. C. 428, 56 S. E. 232; Central Christian Church v. Lennon, 59 Wash. 425, 109 Pac. 1027.
Accordingly, it was held in one case that where a condition provided for the performance of a certain act by the grantee by name, without mention of his heirs, executors, or assigns, the grantee himself was alone bound thereby, and that the condition expired on his death. Emerson v. Simpson, 43 N. H. 475, 82 Am. Dec. 168. Compare Upington v. Corrigan, 151 N. Y. 143, 37 L. R. A. 794, 45 N. E. 359. Sioux City & St. P. R. Co., 49 Minn. 301, 15
[ Sec. 80
- Precedent or subsequent. Though the distinction between a condition precedent and a condition subsequent is obvious enough in its consequences, it is frequently difficult to determine which is intended by the language used, the question being entirely one of intention and not of the particular terms of the limitation.14 The courts tend to construe a condition as subsequent, rather than precedent, so as to give the grantee or devisee an estate liable to be divested, rather than to defer the vesting.15 The rule is stated to be that, if the act or event named must necessarily precede the vesting of the estate, it is a condition precedent, while, if the act or event may accompany or follow the vestL. R. A. 751, 32 Am. St. Rep. 554, 51 N. W. 905; Odessa Improvement & Irrigation Co. v. Dawson, 5 Tex. Civ. App. 487, 24 S. W. 576; And a condition which required the "permanent location" within a year of an institute of learning on the land granted was held to be satisfied by the adoption within that time by the trustees of a resolution providing for such location. Mead v. Ballard, 7 Wall. (U. S.) 290, 19 L. Ed. 190; So, a condition that land be used for a certain purpose was held not to be violated so as to justify re-entry by a merely temporary abandonment of its use for that purpose. Carter v. Branson, 79 Ind. 14; Osgood v. Abbott, 58 Me. 73; Mills v. Evansville Seminary, 58 Wis. 135, 15 N. W. 133.
14. See 2 Jarman, Wills, 842; Burdis v. Burdis, 96 Va. 81, 70 Am. St. Rep. 825, 30 S. E. 462, and note.
15. 4 Kent. Comm. 129; In re Greenwood (1903), 1 Ch. 749;
Schrader v. Schrader, 158 Iowa 85, 139 N. W. 160; Ellicott v. El-licott, 90 Md. 321, 48 L. R. A. 58, 45 Atl. 183; DeConick v. DeCon-ick, 154 Mich. 187, 22 L. R. A. (N. S.) 417, 117 N. W. 570; Nicoll v. New York & E. R. Co., 12 N. Y. 121; Martin v. Ballow, 13 Barb. (N. Y.) 119; St. Peter's Church v. Bragaw, 144 N. C. 126, 10 L. R. A. (N. S.) 633, 56 S. E. 688; Haynie v. Bennett, 22 S. D. 65, 115 N. W. 515; Donnelly v. Eastes, 94 Wis. 390, 69 N. W. 157.
Accordingly, a devise to one on condition that he marry a certain person was held to be on condition subsequent (Finlay v. King's Lessee, 3 Pet [U. S.] 346). 7 L. Ed. 438, as was a devise of land to a town for a school, "provided said schoolhouse is built" on a certain part of the land (Hay-den v. Inhabitants of Stoughton, 5 Pick. [Mass.] 528, 5 Gray's Cas. 10). So a conveyance "provided they [the grantees] fence the land and keep it in repair," was held ing of the estate, it is a condition subsequent.16 Furthermore, the fact that the condition involves something in the nature of a consideration for the gift tends, it has been said, to show that it is a condition precedent.17 If a condition created by devise is such that it can be performed only during testator's life, as for instance when it involves the rendition to him of personal services, it is necessarily a condition precedent.18