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 .
A substantial performance or satisfaction of a condition is, generally speaking, sufficient.75 This principle appears to be practically the same as that previously stated, to the effect that a condition will be strictly construed in favor of vesting and against divesting; and, on this principle, a condition that a building on the land shall be used for a certain purpose has been decided not to be broken by its occasional use for another purpose.76 The condition may be performed by any person who is interested in the property subject to the condition, unless, presumably, this is forbidden by the terms of the condition.77
A condition that no beer be sold on the premises except that made by a certain brewery was held to be invalid as in restraint of trade in Ruhland v. King, 154 Wis. 545, 143 N. W. 681. That a covenant of that character is valid, see Wilson v. Hart, L. R. 1 Ch. 463; Celli & Del Papa v. Galveston Brewing Co., - Tex. Civ. App. -, 186 S. W. 278.
73. Langley v. Chapin, 134 Mass. 82; Hammond v. Port Royal & A. Ry. Co., 15 S. C. 10. See citations ante, note 70.
74. 2 Jarman, Wills, 500; Lewis v. Lewis, 76 Conn. 586, 57 Atl. 735; Harrison v. Harrinson, 105 Ga. 517, 70 Am. St. Rep. 60, 31 S. E. 455; Lindsey v. Lindsey, 45 Ind. 552; Marston v. Marston, 47 Me. 495; Hart v. Chesley, 18 N. H. 373; Casper v. Walker, 33 N. J. Eq. 35, note; Haynie v. Bennett, 22 S. D. 65, 115 N. W. 515; Harrison v. Foote, 9 Tex. Civ. App. 576, 30 S. W. 838; Dunne v. Dunne, 7 D. M. & G. 207; Re Moir, 25 Ch.
Div. 605. Contra, Pardue v. Giv-ens, 54 N. C. 306.
A condition requiring the devisee to live in a particular town has been held to be invalid as being merely the result of caprice (Newkerk v. Newkerk, 2 Caines [N. Y.] 345). And a similar decision has been made when compliance with the condition involved a probable separation of husband and wife (Wilkinson v. Wilkinson, L. R. 12 Eq. 604). But that a devise may be conditioned on the devisee's residence in the county, see Reeves v. Craig, 60 N. C. 208, 209.
75. 1 Sharswood & B. Lead. Cas. Real Prop. 138; Rose v. Haw-ley, 118 N. Y. 502, 23 N. E. 904; Wilson v. Galt, 18 111. 431; Morrill v. Wabash, St. L. & P. Ry. Co., 96 Mo. 174; Irvine v. Irvine, 12 Ky. L. Rep. 827, 15 S. W. 511. A merely colorable performance is insufficient. Ritchie v. Kansas, N. & D. Ry. Co., 55 Kan. 36, 39 Pac. 718; Hickox v. Chicago & C. S. Ry. Co., 78 Mich. 615, 44 N. W. 143.
There are occasional decisions to the effect that a condition as to the mode of using the land, or as to the maintenance of some institution or establishment thereon, is not broken unless the failure in this regard is wilful as well as substantial.78
As before stated,79 the question whether the occurrence of a particular state of facts, which renders it difficult or even impossible to perforin the condition, or exceedingly disadvantageous to do so, relieves the grantee or devisee from performance, is properly a question of the construction of the language by which the condition is created.80
- (b) Time of performance. It is sometimes stated that the grantee, has his whole lifetime for the performance of a condition, when no time is named,81 and sometimes that the condition must be performed within a reasonable time.82 The sensible rule seems to
76. Broadway v. State, 8 Blackf. (Ind.) 290; French v. Inhabitants of Qnincy, 3 Allen (Mass.) 9; Chapin v. School District No. Two, 35 N. H. 445; Mc-Kelway v. Seymour, 29 N. J. L. 321; McKissick v. Pickle, 16 Pa. St. 140. See Osgood v. Abbott, 58 Me. 73; Rowe v. City of Minneapolis, 49 Minn. 148. 51 N. W. 907; Mills v. Evansville Seminary, 58 Wis. 135, 15 N. W. 133.
77. Marks v. Marks, 10 Mod. 419; Vermont v. Society for Propagation of Gospel, 2 Paine, 545, Fed. Cas. No. 16,920; Wilson v. Wilson, 38 Me. 18; Louisville & N. R. Co. v. Covington, 2 Bush. (Ky.) 526.
78. Bonniwell v. Madison, 107 Iowa, 85, 77 N. W. 530; Rose v. Hawley, 141 N. Y. 366, 36 N. E. 335; Fowler v. Coates, 201 N. Y. 257, 94 N. E. 997; Central Christian Church v. Lennon, 59 Wash. 425, 109 Pac. 1027.
79. Ante Sec. 81(b) .
80. See Fowler v. Coates, 201 N. Y. 257, 94 N. E. 997; Reed v. Hatch, 55 N. H. 327; Haynie v. Bennett, 22 S. D. 65, 115 N. W. 515.
81. Finlay v. King's Lessee, 3 Pet. (U. S.) 346, 374, 7 L. Ed. 701.
82. Rowell v. Jewett, 69 Me. 293; Hayden v. Inhabitants of Stoughton, 5 Pick. (Mass.) 528; Ross v. Tremain, 2 Mete. (Mass.) be that a. grantee of land on condition subsequent has his whole lifetime for performance, except when a prompt performance is necessary to give to the grantor or other beneficiary the whole benefit contemplated to be secured to him, or where its immediate fruition formed his motive for entering into the agreement, in which case a reasonable time only is allowed.83
A condition precedent likewise must usually be performed within a "reasonable time,"84 but sometimes the time of performance may, it seems, be entirely at thy will of the grantee, since he himself is the chief loser by nonperformance.85
- (c) Previous demand for performance. Where the performance of a condition in any way depends on the pleasure of the person entitled to performance, as regards the maimer or time of performance, or as to whether it shall be done at all, he must request performance of the condition in order to be able to claim a forfeiture, but otherwise no demand for performance is ordinarily regarded as necessary.86
495; Allen v. Howe, 105 Mass. 241; Trustees of Union College v. New York, 173 N. Y. 38, 93 Am. St. Rep. 569, 65 N. E. 853; Law-rey v. Hanna, 59 Ore. 60, 115 Pac. 975; Pierce v. Brown University, 21 R. I. 392, 43 Atl. 878; Adams v. Ore Knob Copper Co., 7 Fed. 634, 4 Hughes 589. That delay in performance was excused by the fact of war, see Vicksburg & M. R. Co. v. Ragsdale, 54 Miss. 200.
As to the lapse of reasonable time, as starting the running of the limitation statute, see Union Pacific Ry. Co. v. Cook, 39 C. C. A. 86, 98 Fed. 281.