positions. Truesdale v. Sidle, 65 Minn. 315 (67 N. W. Rep. 1004); Kyes v. Merrill Furniture Co., 92 Wis. 32 (65 N. W. Rep. 735).

Sec. 261. Equitable conversion-Particular cases. Where the will directs the executor to sell real estate and distribute the proceeds, it is not such an equitable conversion as will prevent the title to the growing crops passing upon a sale of the land. Hudson v. Fuller, Tenn. (35 S. W. Rep. 575). A surplus remaining of the proceeds of the sale of land to pay debts of the decedent will be treated as real estate. Denton v. Denton v. Tyson, 118 N. C. 542 (24 S. E. Rep. 116). The interest of a person not sui juris in a fund arising from a partition sale of real estate, in which he had an undivided interest, will be treated as real estate. Hackett v. Moxley, 68 Vt. 210 (34 Atl. Rep. 949). For case depending upon particular facts illustrating the doctrine of equitable conversion, see In re Solliday's Estate, 175 Pa. St. 114 (34 Atl. Rep. 548).

Sec. 262. Equitable conversion-Devise or grant with direction to sell. Where the land is devised as real estate, and either by direction of the testator himself or by operation of law such real estate is converted into money, for the purpose of better investment, or for any other purpose consistent with the design and purpose of the ultimate destination to which the real estate was appropriated, there the money is substituted for, and stands in the place of, the devised real estate, and shall go to the same persons, and in the same proportions, and vest in possession and enjoyment at the same times and upon the same contingencies which would have affected the real estate had it remained specifically in real estate. Slocum v. Ames, R. I. (34 Atl. Rep. 152). A direction in a will to convert money into land or vice versa is for the benefit of those for whose use the conversion is intended to be made and as to them is deemed to have been made from the death of the ancestor; such a direction, however, does not affect the title to or character of the property so far as the legatees or heirs are concerned and the trustee may maintain an action to quiet title to the real

property. Fatjo v. Swasey, 111 Cal. 628 (44 Pac. Rep. 225). Citing, Estep v. Armstrong, 91 Cal. 651 (27 Pac. Rep. 1091). Where a grantor conveys land to his sons in trust for his own benefit during his life giving them power to sell after his death and makes such requests as to the disposition of his property at that time as can not possibly be executed without a conversion of the land into money, an equitable conversion takes place at the grantor's death. Paisley v. Holzshu, 83 Md. 325 (34 Atl. Rep. 832). The court say: "Mr. Pomeroy, in his work on Equitable Jurisprudence (volume 3, § 1160), in considering what words are sufficient to effect a conversion says: 'It is not essential, however, that the direction should be express in order to be imperative; it may be necessarily implied. When a power to convert is given without words of command, so that there is an appearance of discretion, if the trusts or limitations are of a description exclusively applicable to one species of property, this circumstance is sufficient to outweigh the appearance of an option, and to render the whole imperative. Thus, if a power is given to lay out money in land, but the limitations expressed are applicable only to land, this will show an intention that the money should be laid out and will amount to an imperative direction to convert; for otherwise the terms of the instrument could not be carried into effect. In fact, the whole result depends upon the intention. If, by express language or by a reasonable construction of all its terms, the instrument shows an intention that the original form of the property shall be changed, then a conversion necessarily takes place. Smithers v. Hooper, 23 Md. 273; Hurtt v. Fisher, 1 Har. &. G. 88; Reiff v. Strite, 54 Md. 301; Church Extension v. Smith, 56 Md. 362; Thomas v. Wood, 1 Md. Ch. 298; Earlom v. Saunders, Amb. 241; Johnson v. Arnold, 1 Ves. Sr. 169; Hereford v. Ravenhill, 5 Beav. 51; Cowley v. Hartstonge, 1 Dow. 361.' When trustees are clothed with a discretion, and exercise it, and thus actually make a conversion, as was done in this case, the property will, in general, pass in the nature and form to which they have converted it. Bourne v. Bourne, 2 Hare 35; In re Ibbitson's Estate, L. R. 7 Eq. 226; Rich v. Whitfield, L. R. 2 Eq. 583; Lawrence

v. Elliott, 3 Redf. (Sur.) 235; Van Vechten v. Keator, 63 N. Y. 52; White v. Howard, 46 N. Y. 144."

Sec. 263.

Relief from forfeiture imposed by a condition precedent. In the recent case of Gates v. Parmly, 93 Wis. 294 (66 N. W. Rep. 253), the supreme court of Wisconsin say: "The rule is universal at law that the failure to perform a condition precedent is a perfect bar, and, in general, the rule is the same in equity, unless there is some peculiar ground of equity to take the case out of the general rule. In Davis v. Gray, 16 Wall 229, 230, it was said: 'There is a wide distinction between a condition precedent where no title is vested, and none is to vest until condition performed, and a condition subsequent operating by way of defeasance. In the former case equity can give no relief. Failure to perform is an inevitable bar.' And the case of Wells v. Smith, 2 Edw. Ch. 78, 83, was referred to. But the case of Davis v. Gray was that of a condition subsequent, and it was held that equity would interfere in such a case, and relieve, upon the principle of compensation, where that principle could be applied, giving damages if damages should be given, and the proper amount could be ascertained. Equity will relieve against a penalty or forfeiture, and the authorities are quite generally agreed that it will do so even where it is in the form of a condition precedent, where it is evidently intended merely as a security for the payment of money or the performance of any act where failure to perform it may be compensated in money. It is not necessary that the penalty or forfeiture should be specified to be such in express terms; it is enough if such is the clear nature and substance of the provision. And, although the distinction between conditions precedent and conditions subsequent is known and often mentioned in courts of equity, yet the prevailing, though not the universal distinction between them, is between cases where compensation can be made and where it cannot be made, without any regard to the facts whether they are conditions precedent or conditions subsequent.' Story, Eq. Jur. §§ 1315, 1316. And the same learned authority says: 'In cases of this sort, where the stipulation is in the nature of a security, and specific performance is sought to be enforced, and yet the party has not

punctually performed the contract on his own part, but has been in default, and admitting of compensation, there is rarely any distinction allowed in courts of equity between conditions precedent and conditions subsequent.' Id. § 1316 et seq.; Id. § 1320. Upon the execution of the contract, the defendants became, in the estimation of a court of equity, the owners of the land, and the plaintiff the equitable owner of the purchasemoney which they held in trust for him; and the condition in the contract operated as an imperfect mortgage or pledge of his equitable ownership of the purchase-money, that he would furnish and deliver on or before the time specified, an abstract of title showing perfect title to the lands, and such imperfect' mortgage or pledge would become redeemed or avoided upon what would be regarded as an equitable performance on his part. If the vendee obtains title to the land or damages which can be regarded as compensation for partial failure, he gets all that in justice he is entitled to. This doctrine has been applied to many cases of breach of condition precedent where the parties could be put in the same situation as if the condition had been performed, and so it would seem that where the condition is security for the payment of money or the performance of any particular act, or in the nature of a penalty or forfeiture, for the nonperformance of such condition, such relief may be granted. Pom. Spec. Perf., §§ 391, 392; 3 Wat. Spec. Perf., § 435; Grigg v. Landis, 21 N. J. Eq. 494; Edgerton v. Peckham, 11 Paige 362, 363; Sanders v. Pope, 12 Ves. 281; In re Dagenham Dock Co., 8 Ch. App. 1022. But where there cannot be any just compensation decreed for the breach, equity will not interfere."

Sec. 264. Doing equity. The mortgagor who seeks the cancellation of a mortgage on the ground that the mortgagee, a foreign corporation, had not complied with the statutes authorizing it to do business, must offer a return of the money loaned, together with interest. George v. New England Mortgage Sec. Co., 109 Ala. 548 (20 So. Rep. 331). The court say: "It is a maxim of equity, of almost universal application, that he who seeks equity must do equity. 6 Am. & Eng. Enc. Law, 707; 1 Story, Eq., 64e. In 1 Pom. Eq. Jur., § 391, it is said that the rule extends to all cases where

a party seeks to have a contract set aside and canceled on the ground of its illegality in violating the provisions of some statute. The court will require him, as a condition to its granting relief, to pay what is really due on the agreement, unless the illegality is a malum in se, or the statute itself prevents the imposition of such terms.' The rule has been applied in this state to contracts for securing loans from foreign corporations doing business without having complied with the statute; the court using this strong language: We cannot assent to the proposition that a person can obtain another's money upon the faith and assurance of a mortgage security, and the next moment after securing and appropriating it, go into a court of conscience, and ask that court to cancel the security as a cloud on his title, still retaining the money, and making no offer to repay the money he has received, with lawful interest.' Grider v. Mortgage Co., 99 Ala. 281 (12 So. Rep. 775; 42 Am. St. Rep. 54); Security Co. v. Powell, 97 Ala. 483 (12 So. Rep. 55); Ross v. Security Co., 101 Ala. 362 (13 So. Rep. 564); Hartley v. Matthews, 96 Ala. 224 (11 So. Rep. 452); Mortgage Co. v. Sewell, 92. Ala. 163 (9 So. Rep. 143)."

ESTATES.

UPINGTON v. CORRIGAN.

(151 N. Y. 143.)

Right to re-enter upon breach of condition subsequent-Who may exercise after the grantor's death. A grantor's right to re-enter for a breach of a condition subsequent is not a devisable interest in real estate, and, after his death, can only be exercised by his heirs.

Condition subsequent - Running with the land. Where a conveyance was made to a grantee, “his heirs and assigns" upon condition that "he shall consecrate or cause to be consecrated," the property for the purpose of erecting a church building, his heirs and assigns take the property subject to the condition and a re-entry may be enforced against them for a breach of it.