ing of a railroad, or the like, it is clear that a condition subsequent is intended, since title is to vest at once in order that the grantee may proceed with the making of the improvements required.

§ 218. Creation of Conditional Estates. The law does not favor forfeiture and therefore if the language used in a deed or will may reasonably be construed as creating a covenant, an equitable charge or trust, or an easement, the courts refuse to find that an estate upon condition involving a forfeiture was intended, but will enforce the provision as a covenant, easement, charge or trust. The terms usually employed to create a conditional estate are "on condition that," "provided that," or other appropriate language of condition. No set form is necessary. If a reasonable interpretation of the instrument requires that the estate created be given effect as an estate on condition the courts will so decide though the usual terms of condition are not employed.1 On the other hand, as stated above, the courts will construe the language as creating a covenant, easement, charge or trust, even though express terms of condition are employed, if it appear that the real purpose of the parties was not to create an estate subject to forfeiture, but an estate subject to a covenant, easement, charge or trust capable of specific enforcement as such.2 An express clause of forfeiture in case of breach, as where it is provided that the grantor shall have a right to enter, or that the estate shall cease, determine and become void in case of a breach, is conclusive in all cases leaving no room for interpretation. The intention in such cases can only be to create an estate on condition. But in a case of a deed having no forfeiture clause but providing "that these presents are upon

King's Lessee, 3 Pet. (U. S.) 346;
Donnelly v. Estes, 94 Wis. 390.

8. Underhill v. Saratoga R. Co., 20 Barb. (N. Y.) 455; Jones v. C. & O. R. Co., 14 W. Va. 514, and cases in preceding note.

1. 1 Shars. & B. Lead. Cas. 123-126. 2. Graves v. Deterling, 120 N. Y. 447; Post v. Weil, 115 N. Y. 361; Avery v. N. Y. C., etc., R. Co., 106 N. Y. 142; Cunningham v. Parker, 146 N. Y. 29; Hapgood v. Houghton, 22

Pick. (Mass.) 480; Sohier v. Trinity Church, 109 Mass. 1; Scovill v. McMahon, 62 Conn. 378; Mills v. Davison, 54 N. J. Eq. 659; Star Brew. Co. v. Primas, 163 Ill. 652, and cases cited in notes following.

3. Cornelius v. Ivins, 26 N. J. L. 376; Walters v. Bredin, 70 Pa. St. 235; Kew v. Trainor, 150 Ill. 150; Atty. Gen. v. Merrimack Mfg. Co., 14 Gray (Mass.) 612; Warner v. Bennett, 31 Conn. 468.

this express condition, that the aforesaid premises shall not be at any time hereafter used or occupied as a tavern or public house of any kind," the court held that this provision should be construed as a restrictive covenant running with the land for the benefit of the adjoining estate belonging to the grantor, enforceable by injunction in case of a breach, not by forfeiture, the grantor's purpose being to protect his adjoining property, fully accomplished by construing the provision as a covenant, a breach of which would be enjoined, and not requiring the drastic remedy of forfeiture. In another case the grant was "upon the express condition that the said railroad company shall, at all times, maintain an opening into the premises hereby conveyed opposite to the Exchange Hotel, for the convenient access of passengers and their baggage." The court held that the provision was intended as a covenant creating an easement of way over the land conveyed from the hotel to the station for the benefit of the hotel property which the railroad company would be restrained from closing. What the grantor wanted was the maintenance of the way, not a forfeiture in case of a breach, there being no express clause of forfeiture. In any case of a devise or bequest of property on condition that the devisee or legatee pay stated sums to other persons named within a stated time or within a reasonable time if no fixed time is stated, the courts hold that the provision creates an equitable charge which will be enforced by a sale of so much of the property devised as may be necessary to make the payments called for, not a condition enforceable by forfeiture which would mean that the heirs would take the property and the testator's expressed intent would be defeated. In a case of this kind it is obvious that a forfeiture was not intended as it would defeat the testator's expressed purpose.

5

4. Post v. Weil, 115 N. Y. 361. 5. Avery v. N. Y. C., etc., R. Co., 106 N. Y. 142.

6. Cunningham v. Parker, 146 N. Y. 29; Woodruff v. Walling, 31 Iowa 533; Will v. Simmonds, 55 Wis. 637; Gray, Perpetuities, 282, note.

See contra, Wheeler v. Walker, 2 Conn. 196, illustrating clearly how giving effect to such a provision as a

A conveyance to a bishop

condition defeats the testator's inten-
tions. Here the residuary estate was
given to David and Nathan "they
jointly and severally paying to my
two daughters
the sum of

three hundred dollars each, within one
year after my decease." The court
enforced a forfeiture for a failure to
pay one of the legacies as provided.
The result was that David lost his

"on condition that it be forever held for the use of the Protestant Episcopal Church" was held to create a trust, the bishop holding in trust for the church, not a defeasible estate on condition." Other illustrations appear in the notes.

8

The mere statement of the use to which the land is to be put, or the purpose of the conveyance or devise does not create an estate on condition. A forfeiture will never be implied. It must be provided for by the deed or will in such way that it cannot reasonably be avoided in order to create an estate on condition."

Nevertheless where the intent of the testator or grantor cannot effectually be carried out except by giving effect to the gift as an

share of the residuary estate, and the daughters, instead of getting $300 each as intended, received an undivided share as though the testator had died intestate. By giving effect to the provisions as a charge on the residue given to the two sons the testator's will would be carried out exactly as he intended, each of the daughters receiving the legacy of $300, and the sons taking the balance of the residue.

7. Neely v. Hoskins, 84 Me. 386; Mills v. Davison, 54 N. J. Eq. 659; Sohier v. Trinity Church, 109 Mass.

1.

8. In Skinner v. Shepard, 130 Mass. 180, the grant was "subject to the condition that no building shall ever be placed on that part of the same lying within twenty-five feet of said street." This was construed as a restrictive covenant, no forfeiture being provided for. It was merely personal since the grantor was not the owner of any adjoining land for the benefit of which the restriction was made. It therefore ceased on the grantor's death. As the condition cannot be enforced as a restriction by injunction in equity, and damages at law would be nominal, it is difficult

to support this case on principle, as forfeiture is the only adequate remedy. Conditions in leases not to assign without the landlord's consent will not be enforced by forfeiture in absence of a forfeiture clause. Den v. Post, 25 N. J. L. 285; Broadway Co. v. Myers, 49 Misc. (N. Y.) 531; Shattuck v. Lovejoy, Gray (Mass.) 204. In these cases of an express condition not to assign, forfetiure is the only adequate remedy and intent that it be enforced as a covenant only can hardly be inferred from absence of a clause of forfeiture. In Woodruff v. Woodruff, 44 N. J. Eq. 349, the deed was on condition that the grantor should have the right to repurchase after the grantee's death for an amount to be fixed by appraisal. This, obviously, was a covenant to reconvey, not a condition involving forfeiture.

In addition to the cases heretofore cited on this question of construction, see Paschall v. Passmore, 15 Pa. St. 295, 307; Sumner v. Darnell, 128 Ind. 38; Druecker v. McLaughlin, 235 Ill. 367.

9. Stuart v. Easton, 170 U. S. 383; Sumner v. Darnell, 128 Ind. 38; Farnham v. Thompson, 34 Minn. 330.

estate on condition, it will be so construed, though no express provision for forfeiture appear in the instrument. 10 Therefore where it is clear that a trust was not intended, and where the provision is incapable of enforcement as an easement or a covenant or as a charge, language of condition will always be effective as creating an estate on condition, though there be no express reservation of a right of entry or other forfeiture provision.11

§ 219. The Right of Entry for Breach of Condition. Where an estate in fee on condition is created by deed or will all that remains in the grantor or in the heirs of the devisor is a possible right of entry in case the condition is broken. This is a mere possibility, not amounting to an estate, which cannot be assigned, conveyed or devised. On the death of the grantor it passes to his heirs, not by inheritance, but to the heirs as the representatives of the grantor as to his realty. Since it is not an estate it is not

10. In Horner v. Chicago, etc., R. Co., 38 Wis. 165, where the land was conveyed "only for depot and for other railroad purposes,' "the court held that a conditional estate was intended, the grantor owning adjoining lands which would be increased in value by the improvements for which the land was conveyed, the provision being otherwise ineffective.

In any case where the condition is that improvements shall be made, as the building of a railroad, erection of a school or church, the provision being unenforceable as a covenant and a trust not being intended, it will be given effect as a condition, language of condition being employed. This is true in any case where the provision would be ineffective as a covenant, easement, trust or charge, though there be no express clause of forfeiture. Nicoll v. N. Y. & Erie R. Co., 12 N. Y. 121; Uppington v. Corrigan, 151 N. Y. 143; Hayden v. Inhabitants of Stoughton, 5 Pick. (Mass.) 528; May v. Boston,

158 Mass. 21; Hays v. St. Paul's Ch., 196 Ill. 633; Pabst v. Hamilton, 133 Cal. 631. Cornelius v. Ivins, 26 N. J. Eq. 376 (dicta).

11. See preceding note.

1. Co. Litt. 214a, 214b; Nicoll v. N. Y. & Erie R. Co., 12 N. Y. 121; Uppington v. Corrigan, 151 N. Y. 143; Rice v. Bost. & W. R. Corp., 12 Allen (Mass.) 141; Merritt v. Harris, 102 Mass. 326.

The right of entry probably originated in the feudal right of the overlord to enter in case the vassal failed to render feudal services, the right of entry being reserved in the grant. Co. Litt. 201a, Butler's note.

The reason for the rule that the right of entry, either before or after breach of condition, could not be assigned was the prevention of maintenance. As expressed by Coke, the reason for this rule was that "under color thereof pretended titles might be granted to great men whereby right might be trodden down, and the weak oppressed, which the common

rendered alienable or devisable by statutes providing that contingent remainders and other future contingent executory estates may be conveyed and devised. After breach of the condition the right of entry, which was a mere possible right before, becomes a vested right of entry and of action, by virtue of which the grantor or his heirs or the heirs of the devisor may enter or maintain ejectment, bringing the conditional estate to an end. This right of action or entry cannot be assigned or transferred any more than could the possible right before breach, and for the same reasons.3

"It is a maxim of law, that nothing which lies in action, entry or reentry, can be granted over, in order to discourage maintenance.'' 1 Greenlief's Cruise Real Prop., tit. 13, forfeiture, not heirs of the testach. 1, § 15.