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expectant estates," which shows that they are not in the least applicable to such a case. It was observed that, though they include every present right and interest, either vested or contingent, which may by possibility vest at a future day, yet they do not include the mere possibility of a reverter, which the grantor has after he has conveyed in fee on condition subsequent." Underhill v. Railroad Co., 20 Barb. 455, was in ejectment, to recover land which had been granted to the defendant upon condition subsequent. Subsequently to the conveyance to the railroad company, the grantor therein made a deed to the plaintiff of "the lands, premises, covenants, and conditions, rights of action, interest," etc., growing out of the first deed and its covenants. Allen, J., speaking for the court, followed the authority of the Nicoll case, and said: "I come to the conclusion that the effect of the omission to perform the condition by the defendant was to give the grantors, or, in case of their death, their heirs, the right of entry, but that no action can be maintained by the assignee to recover the land, whether the breach was before or after the assignment, and that the court was, therefore, right in so holding at the circuit." In Fonda v. Sage, 46 Barb. 109, Johnson, J., said, with respect to a condition subsequent in a deed : "It seems to be well settled upon abundant authority, that a condition in a conveyance can only be reserved for the benefit of the grantor of the estate and his heirs, and that no stranger can take advantage of the breach of a condition." He cites various authorities and the Nicoll case, and observes that" until re-entry by the grantor, or his heirs, the estate is not forfeited, but remains in the grantee." In Towle v. Remsen, 70 N. Y., at page 312, it was held, upon the authority of the Nicoll case, that the interest of a grantor upon condition subsequent is a mere possibility of reversion, incapable of assignment. "There is no interest to assign before the breach, and after that the right of entry is not capable of being transferred." So lately as in Vail v. Railroad Co., 106 N. Y., at page 287 (12 N. E. Rep. 608; 60 Am. Rep. 449), it was said by the present chief judge that, "when a conveyance in fee is made upon a condition subsequent, the fee remains in the grantee until breach of conaition and a re-entry by the grantor." And, again, " There

are no words limiting the estate conveyed, or which rebut the statutory presumption that the grantors intended to convey all their estate in the land. The possibility of reverter, merely, is not an estate in land, and, until the contingency happens, the whole title is in the grantee." The deed in that case was assumed, for the purpose of the expressions, to convey upon a condition subsequent. Jackson v. Varick, 7 Cow. 238, to which our attention is called, is not in point, for the question involved was expressly stated to be "whether the owner in fee can devise land which, at the time of the devise, and of his death, is in the adverse possession of another; * ** whether a person having a right of entry in fee simple shall be said to have an estate of inheritance in lands, tenements, or hereditaments, in the language of our statute of wills." The discussion turned upon the question of seisin, and it was held that the ancestor was seised, although there might have been an adverse possession, and that his right of entry was devisable, within the statute of wills. In a case arising in the courts of the state of New Jersey, the common-law rule in question was considered in language which I shall quote. That was the case of Southard v. Railway Co., 26 N. J. Law, at page 21, and it was said: "If, however, the evidence had clearly established a breach of the condition and a consequent forfeiture of the estate, the plaintiff could not have availed herself of the forfeiture. She claims, not as heir, but as devisee of the grantor. She is a privy in estate and not à privy in blood. It is a rule of the common law that none may take advantage of a condition in deed but parties and privies in right and representation, as the heirs of natural persons and the successors of politic persons, and that neither privies nor assignees, in law (as lords by escheat), nor in deeds (as grantees of reversions), nor privies in estate (as he to whom the remainder is limited), shall take benefit of entry or re-entry by force of a condition. Shep. Touch. 149; Co. Litt. 214, a; Litt. § 347; Doct. & Stud. 161, c. 20; Perk.

830; 4 Kent, Comm. 127; 2 Cruise, Dig. c. 2, § 49.". See, also, upon this subject, Schulenberg v. Harriman, 21 Wall. 44, and Ruch v. Rock Island, 97 U. S. 693.

In this case, as it is in every case of a deed of the fee upon condition subsequent, the grantor parted with every interest

and estate in the real property conveyed. That was her intention, within the legal presumption from the terms of the deed. and it was also the legal presumption that the condition would be performed by the grantee. That which the grantor retained was never regarded as an interest in real property, or as an assignable chose in action, and cannot be deemed such through any construction of our statute. Until the law is changed by some legislation, it must be regarded as still the settled rule that no one can take advantage of the breach of a condition subsequent, annexed to the grant of a fee, but the grantor or his heirs, or, in the case of an artificial person, its successors. Every estate and interest formerly enjoyed by the grantor were vested by the deed in the grantee. He undertook and agreed to perform the condition which is annexed to the grant, and the presumption was that he would perform. If he, or those who succeeded in interest, failed to do so, with in a reasonable time, then it became optional with the grantor to enter for breach of the condition, and to have a forfeiture of the estate declared. The grantor having died, the right to insist upon a forfeiture for breach of the condition remained in the heir, as the person who occupies the place of the deceased.

Sec. 269. Condition subsequent-Running with the land. The further point is made by the appellants that, it the clause in the deed to Hughes created a condition subsequent, it could not be broken after his death, as there was no mention therein of his heirs, executors, or assigns. I do not think, upon reading the whole of the habendum clause in the deed, that we can say that the condition amounted only to a personal covenant with the grantor. The language is, "To have and to hold the * * * premises * unto the said party of the second part, his heirs and assigns, to his and their own proper use, etc., forever upon the conditions following, to-wit: That said party of the second part shall consecrate, or cause to be consecrated, the said property, for the purpose of erecting a church building," etc. The intention seems plain that the conveyance of the estate was upon condition, and I do not think that the construction is permitted that it was a mere covenant on the part of the grantee, per

sonal to him. The condition was one which, in its nature was so annexed to the conveyance by the deed as to qualify it. 2 Washb. Real Prop. p. 455. The language does not provide that the party of the second part alone shall consecrate, but that he shall cause to be consecrated the property; and therefore it was within his power, if he did not do so himself, to provide, in any disposition which he made of it, that his successors in interest should do so. They took the estate with knowledge of the condition affecting its title, and can not complain if bound by it. It seems to me that the natural and ordinary interpretation of the habendum clause is to create a condition subsequent, as the effect of which, in case of a failure to perform it, within a reasonable time, on the part of Hughes, or his heirs or assigns, the estate granted might be defeated, at the option of Mrs. Davey or her heirs. The language of the clause is not merely descriptive of the consideration upon which the deed was given, but qualified the conveyance to the extent or in the manner named. Considering the purpose of the grant by Mrs. Davey, we could not, with reasonableness of construction, say that the condition she imposed was merely personal to Archbishop Hughes.

A careful consideration of these questions, and no others require discussion here, must lead us to the conclusion that the appeal cannot be sustained. The judgment should be affirmed, with costs. All concur. Judgment affirmed.

Sec. 270. Conveyance and devise of reverter or right to re-enter for breach of condition. A mere naked possibility of reverter cannot be devised or alienated. Trustees of Presbyterian Church v. Venable, 159 Ill. 215 (42 N. E. Rep. 836; 50 Am. St. Rep. 159). It is not an estate in land, and until the contingency happens the whole title is in the grantee. Vail v. Long Island R. Co., 106 N.Y. 283 (12 N. E. Rep. 607; 60 Am. Rep. 449). Citing, Craig v. Wells, 11 N. Y. 315; Nicoll v. New York and E. R. Co., 12 N. Y. 121; 4 Kent Comm. 370; Kenney v. Wallace, 24 Hun. 478. The right of re-entry for a breach of a condition subsequent is not assignable before the breach. Ohio Iron Co. v. Auburn Iron Co., 64 Minn. 404 (67 N. W. Rep. 221); Berenbroick v. St. Luke's Hospital in City of New York, 48 N. Y. Sup. 363. In the last case the court say: "It is well settled that where a deed of property in fee is made, with a condition subsequent imposed, and a right of re-entry reserved to the grantor, the right of re-entry is a mere right in action, and

not an interest in the land; that it is not assignable nor grantable; that it descends to the grantor's heirs, but does not pass by a conveyance. And any deed by which the original grantor, or his heirs, undertakes to transfer, assign or grant the land, or the reversion of it, while it may be ineffectual to convey title to the grantee, does operate to put an end to the rights of the grantor. 6 Am. & Eng. Enc. Law, 904; Underhill v. Railroad Co., 20 Barb. 455; Post v. Weil, 8 Hun. 418; Washb. Real Prop. (5th Ed.) 118; Tinkham v. Railroad Co., 53 Barb. 393–396; De Peyster v. Michael, 6 N. Y. 468, 506 (57 Am. Dec. 470); Nicoll v. Railroad Co., 12 N. Y. 121; Towle v. Remsen, 70 N. Y. 305."

In the case of Boone v. Clark, 129 Ill. 466 (21 N. E. Rep. 850; 5 L. R. A. 276), it is said that "a breach of a condition subsequent can be taken advantage of only by the grantor, his heirs or devisees." Citing, 2 Washb. Real Prop., 11, 12, and this case is cited by some as supporting the doctrine that a right of re-entry for breach of condition subsequent may be the subject of a devise. But this precise point was not squarely before the court in that case, and Washburn in his work on Real Property (4th Ed. Vol. 2, p. 15) says: "The law is not uniform as to how far a devisee of one who has granted an estate upon condition may exercise the right of defeating it by entry for a breach of the condition. In New Jersey it has been held that by the common law heirs only, and not devisees of such grantor, or, if the grantor be a body politic, their successors only, could take advantage of the breach; neither grantees of the reversion nor remaindermen could do it, though now, by statute, devisees may there exercise the right. Whereas, in Massachusetts, the devisee of such grantor, or the residuary devisee or his heir, where the conditional estate is created by devise in the same will, is held competent to enter and defeat the estate for condition broken, like an heir at common law." The author cites in support of the Massachusetts rule, Hayden v. Inhabitants of Stoughton, 5 Pick. 529; Austin v. Parish, 21 Pick. 215; Clapp v. Stoughton, 10 Pick. 463; but adds in a note, "it should be understood that this apparent departure from the principle of the common law in respect to conditional estates grows out of the construction of a clause in the statute of that state (Rev. Stat., ch. 101, § 4), which is too late to controvert, however questionable that construction may originally have been.'

EPITOME OF CASES.

Sec. 271. Forfeiture of estates-Confiscation by act of congress. The estate forfeited by proceedings to judgment under the confiscation act of congress of July 17, 1862, and the joint resolution of the same date, and on account of the owner giving aid and comfort to the then existing Rebellion, is the life estate of the offender, the fee remaining in him after the confiscation, but without power of alienation