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 .
Common law rule. The right to take advantage of the breach of a condition subsequent by enforcing a forfeiture, the right of re-entry, as it is frequently termed, belonged at common law exclusively to the grantor or lessor, and after his death to his heir or heirs.62 And the right cannot be vested in another even by express stipulation in the creation of the condition.63 That this rule of the common law is still applicable has been frequently recognized in this country,64 and the fact that another is as much or even more affected by the grantee's non compliance with the condition gives such other no rights in the matter.65 This inability of one other than the grantor or lessor, at common law, to take advantage of an express condition subsequent, was probably the result of the fact that such conditions were introduced after implied conditions for non compliance by the feudal tenant with his obligations to his lord had been fully recognized, and that the courts followed the analogy of implied conditions on the question of the person entitled to enforce an express condition. It is also in accord with the rule, discussed below, that a right of entry is not transferable, since to give effect to a stipulation enabling one other than the grantor to re-enter for breach would operate in effect as the recognition of a transfer of the contingent right of re-entry. Since no one but the grantor or his heirs can en-force the benefit of a condition imposed on an estate of inheritance, a right which he has, without regard to his interest in the performance of the condition,66it may result that the only person who is interested in the performance of the condition will have no remedy for its nonperformance, as when the condition is for the payment of money to one other than the grantor.67 Equity will, however, frequently, in such a case, regard what is in terms a condition as a trust for such third person's benefit, and enforce it accordingly;68 or, if intended merely to regulate the mode in which the grantee may use and enjoy the land, it may sometimes be enforced at the suit of owners of adjoining land, as an equitable easement, or as a covenant running with the land.69
62. The heir of the grantor is entitled to avail himself of the benefit of the condition, though he is not expressly named in the reservation thereof. Bowen v. Bowen, 18 Conn. 535; Jackson v. Topping, 1 Wend. (N. Y.) 388, 19 Am. Dec. 515; Thomas v. Record, 47 Me. 500; Brittain v. Taylor, 168 N. C. 271, 84 S. E. 280; Fluharty v. Fluharty, 54 W. Va. 407, 46 S. E. 199; Unless the construction of the language used shows an intention to the contrary. Sheppard's Touchstone, 133.
In case there are two or more heirs, one can, it seems, enforce a forfeiture in behalf of the others as well as of himself. Bouvier v. Baltimore & N. Y. Ry. Co., 67 N. J. L. 281. 60 L. R. A. 750, 51 Atl. 781; Southwick v. New York Christian Missionary Soc, 151 N. Y. App. Div. 116, 135 N. Y. Supp. 392. Editorial note, 12 Columbia Law Rev. 649.
63. Litt. Sec. 347; Co. Litt. 214b; Pennant's Case, 3 Coke. Sec. 64a.
64. Skipwith v. Martin, 50 Ark. 141, 6 S. W. 514; Buckelew v. Estell, 5 Cal. 108; Norris v.
Milner, 20 Ga. 563; Boone v. Clark, 129 111. 466, 498, 5 L. R. A. 276, 21 N. E. 850; Cross v. Carson, 8 Blackf. (Ind.) 138, 44 Am. Dec. 742; Higbee v. Rode-man, 129 Ind. 244, 28 N. E. 442; McElroy v. Morley, 40 Kan. 76, 19 Pac. 341; Kentland Coal & Coke Co. v. Keen, 168 Ky. 836, L. R. A. 1916D 924, 183 S. W. 247; Bangor v. Warren, 34 Me. 324, 56 Am. Dec. 657; Gray v. Blanchard, 8 Pick. (Mass.) 284; Dewey v. Williams, 40 N. H. 222, 77 Am. Dec. 708; Upington v. Corrigan, 151 N. Y. 143, 37 L. R. A. 794, 45 N. E. 359; Fowler v. Coates, 201 N. Y. 257, 94 N. E. 997; First Presbyterian Church of Beaufort v. Elliott, 65 S. C. 251, 43 S. E. 674. Contra, McKissick v. Pickle, 16 Pa. 140, 146.
Consequently only the heirs of the testator can take advantage of the breach of a condition subsequent in a will. Manifold v. Jones, 117 Ind. 212, 20 N. E. 124; Marwick v. Andrews, 25 N. E. 525; Sackett v. Mallory, 1 Mete. (Mass.) 355; Wellons v. Jordan. 83 N. C. 371.
65. Post this section, note 67.
66. Gray v. Blanchard, 8 Pick. (Mass.) 284; Bowen v. Bowen, 18 Conn. 535; Gibert v. Peteler, 38 N. Y. 165.
67. See Co. Litt. 201a, Butler's note (84), where it is remarked that limitations of estates on condition "are often of such a nature as to make it more natural that a stranger should have the estate on the nonperformance of the condition than the donor," but that the remedy is confined to the donor and his heirs as a result of the strained application of the original principle of conditions, that, on a nonperformance of them, the lord should have his fief, to a class of conditions entirely different from those involving the performance of feudal services, where the rule had its origin.
68. 1 Smith's Lead. Cas. (8th Am. Ed.) 142; West v. Biscoe, 6 Har. & J. (Md.) 460; Tomlin v. Blunt, 31 111. App. 234; Smith v.
- (b) Transferability of right. Not only is it legally impossible, in creating the condition, to give the right of re-entry to one other than the grantor or lessor, and his heir or heirs, but the grantor or lessor who has the right cannot, at common law, transfer this right to another, and this rule is generally accepted in this country as regards a right of re-entry in connection with an estate in fee simple70 except as it may have been changed by statute.71 The rule that the right of reentry cannot be transferred is said by Coke merely to
Jewett, 40 N. H. 530. See ante Sec. 79, note 9.
69. Ayling v. Kramer, 133 Mass. 12; Fuller v. Arms, 45 Vt. 400; Jewell v. Lee, 14 Allen (Mass.) 145, 92 Am. Dec. 744, and note; Post v. Weil, 115 N. Y. 361, 5 L. R. A. 422, 12 Am. St. Rep. 809, 22 N. E. 145. See post Sec. Sec. 388-401.
70. Ruch v. Rock Island, 97 U. S. 693, 24 L. Ed. 1101; Warner v. Bennett, 31 Conn. 468; O'Donnell v. Robson, 239 111. 634, 88 N. E. 175; Boone v. Tipton, 15 Ind. 270; Strothers v. Woodcox, 142 Iowa, 648, 121 N. W. 1187; Guild v. Richards, 16 Gray (Mass.) 309; Nicoll v. New York & E. R. Co., 12 N. Y. 121; Underbill v. Saratoga & W. R. Co., 20 Barb. (N. Y.) 455, 456; School District No. 21 of Wallowa County v. Wallowa County, 71 Ore. 337, 142 Pac. 320; First Presbyterian Church of Beaufort v. Elliott, 65 S. C. 251, 43 S. E. 674; Board of Education of Humphreys County v. Baker, 124 Tenn. 39, 134 S. W. 863.