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 .
At common law, upon the breach of a condition subsequent annexed to a freehold estate, an actual entry by the gran tor or his heir was ordinarily necessary to revest the seisin and ownership in the grantor, this requirement being based on the theory that the grantee's estate having commenced by livery of seisin could be terminated only by an act of equal solemnity.37 The requirement of entry did not apply, however, when it was not possible to enter, it being sufficient in such case to make claim to the land.38 Accordingly, no doubt, it was sufficient to make claim when the grantee in possession forcibly prevented entry39 as it was when the interest was such as did not lie in livery, and was consequently not the subject of entry, such as a remainder, a reversion or a rent.40 Another case in which no entry was necessary occurred when the person seeking to enforce a forfeiture was already in possession of the land.41
After the introduction of the fictions in ejectment, which involved a confession by the defendant in such action of an entry by the plaintiff, it was considered
574, 13 Ohio Dec. 351, and post Sec. 88.
37. Litt. Sec. 351; Co. Litt. 214b; 3 Blackst. Comm. 175.
38. "Regularly, when any man will take advantage of a condition, if he may enter he must enter, and when he cannot enter he must make a claim, and the reason is, for that a freehold and inheritance shall not cease without entry or claim." Co. Litt. 218a.
39. White v. Britton, 75 S. C. 428, 56 S. E. 232.
40. Co. Litt. 218a; 4 Kent's Comm. 128; Kenner v. American Contract Co., 9 Bush. (Ky.) 202.
41. Co. Litt. 218a; Thompson v. Thompson, 9 Ind. 323, 68 Am Dec. 638; Taylor v. Cedar Rap-It. P.-20 ids & St. P. R. Co., 25 Iowa 371; Kenner v. American Contract Co., 9 Bush. (Ky.) 202; Andrews v. Senter, 32 Me. 394; Lincoln Ken-neheck Bank v. Drummond, 5 Mass. 321; Moore v. Wingate, 53 Mo. 398; Rollins v. Riley, 44 N. H. 9; Hamilton v. Elliott, 5 Serg. & R. (Pa.) 375.
That the grantor, if in possession, must show intention to hold by reason of the breach, see Hubbard v. Hubbard, 97 Mass. 188, 93 Am. Dec. 75. But, that there is a presumption that he so holds, see Andrews v. Senter, 32 Me. 394; Brittain v. Taylor, 168 N. C. 271, 84 S. E. 280. See. also, Blum v. Bush. 86 Mich. 206, 49 N. W. 142.
[Sec.85 that, proof of entry being thus dispensed with, actual entry was unnecessary, provided an action of ejectment was instituted by the person entitled to the benefit of the breach, and entry was therein admitted,42 and at the present day it is usually considered that an action of ejectment, or the statutory action to recover land, brought to enforce the condition, need not be preceded by entry, or even by a demand of possession,43 this view being variously based on local statutes in reference to the action in question, on the theory that the action involves a confession by defendant of the plaintiff's entry, and on the theory that, since the grantee's estate no longer begins by livery of seisin, no solemnity is necessary to terminate it, and that in so far as entry at common law served to give notice of an intention to claim a forfeiture, this is as satisfactorily effected by the demand for possession involved in the bringing of the action.44 Occasionally, however, the courts take the
42. Goodright v. Cator, 2 Doug. 485; Jones v. Carter, 15 Mees. & W. 718; Cornelius v. Ivins, 26 N. J. L. 376; Jackson v. Crysler, 1 Johns. Cas. (N. Y.) 125.
43. Cowell v. Colorado Springs Co., 100 U. S. 55, 25 L. Ed. 547; Union Pac. Ry. Co. v. Cook, 39 C. C. A. 86, 98 Fed. 281; Moss v. Chappell, 126 Ga. 196, 11 L. R. A. (N. S.) 398, 54 S. E. 968; Hart v. Lake, 273 111. 60, 112 N. E. 286; Ritchie v. Kansas, N. & D. Ry, Co., 55 Kan. 36, 39 Pac. 718; Kenner v. American Contract Co., 9 Bush. (Ky.) 202; Austin v. Cambridge-port Parish, 21 Pick. (Mass.) 215; Hubbard v. Hubbard, 97 Mass. 188, 93 Am. Dec. 75; Sioux City & St. P. R. Co. v. Singer, 49 Minn. 301, 15 L. R. A. 751, 32 Am. St. Rep. 554, 51 N. W. 905; Yazoo & M. V. R. Co. v. Lakeview Traction position that an action of ejectment will not lie for the purpose of enforcing a forfeiture, unless preceded by an entry, a demand of possession, or at least an assertion of intention to claim a forfeiture.45 It is sometimes stated by the courts that in order to revest title on breach of condition there must be re-entry;46 sometimes that there must be re-entry or claim,47 and sometimes that re-entry "or its equivalent" is necessary.48 These statements, however, in the ordinary case appear to refer merely to the necessity of an active assertion by the grantor of his intention to claim a forfeiture.
Co., 100 Miss. 281, 56 So. 393; Ellis v. Kyger, 90 Mo. 600, 3 S. W. 23; Brown v. Bennett, 75 Pa. St. 420, 423; Gulf, C. & S. F. Ry. Co. v. Dunman, 74 Tex. 265, 11 S. W. 1094; Martin v. Ohio River R. Co., 37 W. Va. 349, 16 S. E. 589. 44.. That neither entry or a demand of possession is necessary before suit, see Ruch v. Rock Island, 97 U. S. 693, 24 L. Ed. 1101; Fusha v. Dacono Townsite Co., 60 Colo. 315, Ann. Cas. 1917C 108, 153 Pac. 226; Cornelius v. Ivins, 26 N. J. L. 376; Plumb v. Tubbs, 41 N. Y. 442; Trustees of Union College v. New York, 173 N. Y. 38, 65 N. E. 853, 93 Am. St. Rep. 569; Brittain v. Taylor, 168 N. C. 271, 84 S. E. 280; Seeck v. Jakel, 71 Ore. 35, L. R. A. 1917C 1162, Ann. Cas. 1916C 1003, 141 Pac. 211; Lewiston Water & Power Co. v.
Brown, 42 Wash. 555, 85 Pac. 47. In the case of a public grant, the right to a forfeiture for breach "must be asserted by judicial proceedings, * * * the equivalent of an inquest of office at common law, finding the fact of forfeiture and adjudging the restoration of the estate on that ground, or there must be some legislative assertion of ownership of the property for breach of the condition." Schulenberg v. Harriman, 21 Wall. (U. S.) 44, 22 L. Ed. 551.
45. Warner v. Bennett, 31 Conn. 468 (dictum); Preston v. Bosworth, 153 Ind. 458, 55 N. E. 224, 74 Am. St. Rep. 313; Stroth-ers v. Woodcox, 142 Iowa 648, 121 N. W. 51; Hammond v. Port Royal & A. Ry. Co., 15 S. C. 10, 11; Mash v. Bloom, 133 Wis. 646, 114 N. W. 457, 14 L. R. A. (N. S.) 1187, Ann. Cas. 1012.