of showing his performance of the conditions. Walker, 69 Vt. 344 (38 Atl. Rep. 63). Oakman v. A con Sec. 303. Condition subsequent-Breach. veyance upon condition subsequent passes the title to the grantee subject to be divested by failure to perform the condition. Fritz v. Menges, 179 Pa. St. 122 (36 Atl. Rep. 213). A deed upon condition subsequent, conveys the fee with all its qualities of transmission and the estate continues in the grantee after a breach of condition until defeated by actual entry or by some act equivalent to entry at common law, made for the purpose of claiming a forfeiture by some one having the right to terminate the estate. Little Falls Water-Power Co. v. Belin, 69 Minn. 253 (72 N. W. Rep. 69). Conditions subsequent are favored rather than conditions precedent. Congre gational Church Bldg. Soc. v. Everett, 85 Md. 79 (36 Atl. Rep. 654; 60 Am. St. Rep. 308). Applying the doctrine that conditions subsequent are not favored, it is held that a stipulation in a deed to a county for full consideration that the land is granted to said county "for a public school house, as the property of the schools of said county and for no other purposes, in fee" does not create a condition subsequent so that a forfeiture may be enforced in case the land is used for any other purpose. Faith v. Bowles, 86 Md. 13 (37 Atl. Rep. 711; 63 Am. St. Rep. 489). Citing, Kilpatrick v. City of Baltimore, 81 Md. 179 (31 Atl. Rep. 805; 48 Am St. Rep. 509; 27 L. R. A. 643; See Ballards' Law Real Prop., Vol. IV, § 263); Barker v. Barrows, 138 Mass. 580; Wier v. Simmons, 55 Wis. 637 (13 N. W. Rep. 873); Craig v. Wells, 11 N. Y. 315). Where, upon breach of a condition subsequent an action of ejectment is brought, damages for the unlawful withholding can only be recovered from the time a demand was made and refused, or from the time the action was brought, not from the time the condition was broken. Little Falls Water-Power Co. v. Belin, 69 Minn. 253 (72 N. W. Rep. 69). Sec. 304. Condition subsequent-Conveyance in consideration of support. Where the consideration of a conveyance was the grantee's agreement to support the gran tor, in which he covenanted to reconvey the premises in case of his default, the grantor is entitled to a specific performance of the covenant for reconveyance is case of such default. Stamper v. Stamper, 121 N. C. 251 (28 S. E. Rep. 20). If the grantee's promises is to pay one-fourth part of the sum necessary to support the grantor during life, upon his failure to perform his agreement, the deed should not be cancelled, but the amount due the grantor should be enforced as a lien on the land. Powers v. Powers, Ky. (39 S.W.Rep. 825). See Vendor's lien. But upon breach of a condition to support, a court of equity has power to cancel the conveyance and place the parties in statu quo. Cash v. Cash, Ky. (41 S. W. Rep. 579). In case of breach of the grantee's agreement to support, the grantor should be awarded a judgment for the gross sum in full of all demands for possible future support which should be decreed a lien on the land, and if part of the land has been sold the grantor must first enforce his lien against the portion owned by the grantee. Tabor v. Payne, Ky. (41 S. W. Rep. 557). Where a mother's conveyance to her daughter, recited as a consideration, payment of a mortgage on the premises and support of the grantor for life by the grantee, it will be construed as a condition subsequent and the grantor may re-enter and re-invest herself with the title if the grantee fails to perform the conditions. Gilchrist v. Foxen, 95 Wis. 428 (70 N. W. Rep. 585). A grantor in a deed made upon condition that the grantee shall support him, who quits the premises on account of an alleged breach of the condition, is entitled to reasonable time to assert a forfeiture, and he does not waive his right to assert such forfeiture by a subsequent return to the premises and acceptance of support for a time from the grantee. Dunklee v. Hooper, 69 Vt. 65 (37 Atl. Rep. 225). Where a conveyance of land having a dwelling house thereon was made in consideration of the grantee's agreement to live with and care for the grantors during their lives, the removal of the grantors to a cottage which they built near by in order to add to their convenience and comfort, does not necessarily show an abandonment of the contract or a failure of consideration. Chase v. Chase, 20 R. I. 202 (37 Atl. Rep. 804). Where a son acquired a conveyance of land from his parents under an agreement to support them during life, after the death of his father, succeeded in effecting a sale of the premises, the proceeds to be applied to the discharge of the mortgage debt existing against his other real estate, afterwards failed to contribute any to the support of his mother, it is held that upon his death, she can, as against creditors, who do not become such on the faith of such mortgage being discharged, revive it for the purpose of securing a prior claim against his estate for an amount of money equal to the proceeds of her lands which were used in its discharge, such money to be applied as needed for her support, the balance to go to his estate. Bourne v. Bourne, 69 Vt. 251 (37 Atl. Rep. 1049). A mother having a right to enforce a covenant for a reconveyance against her son to whom she has conveyed land, in consideration of his agreement to support her, does not waive this right by permitting him to live with her on the land and caring for him during his last sickness. Stamper v. Stamper, 121 N. C. 251 (28 S. E. Rep. 20). Sec. 305. Perpetuity defined. The rule against perpetuities is not violated by a deed of trust which vests the legal estate in the trustee with full power of sale and conveyance and in which the beneficial or equitable estate is reserved to the grantors who have power to make a complete revocation of the trust at any time. Pulitzer v. Livingston, 89 Me. 359 (36 Atl. Rep. 635). In defining a perpetuity the court say: "It is the grant of property wherein the vesting of an estate or interest, is unlawfully postponed. The law allows the vesting of an estate or interest, and also the power of alienation, to be postponed for the period of a life or lives in being and twenty-one years and nine months thereafter; and all restraints upon the vesting that may suspend it beyond that period are treated as perpetual restraints, and void, and estates or interests which are dependent upon them are void. Nothing is denounced as a perpetuity that does not trangress this rule; and equity follows this rule by way of analogy in dealing with executory trusts; and those trusts which transgress the rule are called 'transgressive trusts,' being, in equity, the substantial equivalent of what in law are called 'perpetuities.' Fearne Rem. 538, note. 'But the limitation, in order to be valid, must be so made that the estate, or whatever is devised or bequeathed not only may, but must necessarily, vest within the prescribed period. If by any possibility the vesting may be postponed beyond this period, the limitation over will be void.' Fosdick v. Fosdick, 6 Allen 41; Square Church v. Grant, 3 Gray 142. Lewis in his work on Perpetuities, gives the following as an accurate definition of a perpetuity: A perpetuity is a future limitation, whether executory or by way of remainder, and of either real or personal property, which is not to vest until after the expiration of, or will not necessarily vest within, the period fixed and prescribed by law for the creation of future estates and interests, and which is not destructible by the persons for the time being entitled to the property subject to the future limitation, except with the concurrence of the individual interested under that limitation.' The rule against perpetuities has no application to vested estates or interests. Gray, Perp., § 205. It concerns itself only with the vesting-the commencing-of estates, and not at all with their termination. It makes no difference when such a vested estate or interest limited terminates. Routledge v. Dorril, 2 Ves. Jr. 366; Evans v. Walker, 3 Ch. Div. 211; Hampton v. Holman, 5 Ch. Div. 183. See 14 Am. Law Rev. 237." A stipu Sec. 306. Perpetuities-Particular cases. lation in a will, providing for the sale of certain lands, the investment of the proceeds thereof, and the apportionment of the income therefrom, among the testator's children, and which authorizes the probate judge to appoint an executor "from time to time for all time to come," without making any provision for the lands or proceeds arising from their sale to become vested in any one, is void as it creates a perpetuity. Bigelow v. Cady, 171 Ill. 229 (48 N. E. Rep. 974; 63 Am. St. Rep. 230). Cal. Civ. Code, § 715, providing that "the absolute power of alienation cannot be suspended by any limitation or condition whatever for a longer period than during the continuance of the lives of persons in being at the creation of the limitation or condition," is held to render void any provision which countenances the suspension of alienation for any fixed period of years not depending upon the duration of life; since during the time of such limitation, however short, the persons capable of conveying the interest, might die. Crew v. Pratt, 119 Cal. 139 (51 Pac. Rep. 38). Substantially the same is held in, In re Cavarly's Estate, 119 Cal. 406 (51 Pac. Rep. 629). Construing and applying How. Ann. Mich. Stat. § 5531, providing that "the absolute power of alienation shall not be suspended by any limitation or condition whatever, for a longer period than during the continuance of two lives in being at the creation of the estate," it is held that where a testator devised a life estate to his wife and gave the remainder to the State of Michigan upon condition that "if the state shall, within the period of five years from and after the death of my said wife, formally accept of this provision of my will, and, by due enactment locate upon my real estate in said township of Grattan, some public educational or charitable institution, and building thereon suitable buildings for such institution," such latter clause is void. The court holds that the state could acquire no title until it complied with the condition precedent, and that for five years the title might be left in abeyance, and, as the power of alienation is not based on lives, the clause of the will must be held void. Under the statute the period of suspension of alienation cannot be measured by time alone, but life must in some form be the measure of the period of suspension. State v. Holmes, 115 Mich. 456 (73 N. W. Rep. 548). If the contingency upon which the vesting of the fee depends must happen within twenty-one years after a life in being at the time of the testator's death, the rule is not violated no matter how many preceding estates are provided for. Madison v. Larmon, 170 III. 65 (48 N. E. Rep. 556; 62 Am. St. Rep. 356). The rule against perpetuities is not violated by a devise to a charitable institution which requires "as a condition of the vesting of this legacy" that the devisee shall release all obligations it holds against a certain church, Congregational Church Bldg. Soc. v. Everett, 85 Md. 79 (36 Atl. Rep. 654; 60 Am. St. Rep. 308); nor by a devise to executors in trust, to pay the net income to the testator's daughters for life, with direction that at their decease it should be equally divided among their children who may be then living and the issue of any deceased child or children whether named in the will or not as they arrive at legal age. In re Siddall's Estate, 180 Pa. St. 127 |