fee. As a remainder, this limitation must fail, but, as an executory devise, it may take effect. Cases of this kind frequently occur when devises are made to depend on contingencies.

ESTATES UPON CONDITION

98. Definition. - Estates upon condition are such as have a qualification annexed to them by which, upon the happening of a particular event, they may be created, or enlarged, or destroyed. They are (1) estates upon condition implied and (2) estates upon condition expressed.

99. An estate upon condition implied is one in which the condition is not expressed in the deed conveying the estate, but which the law implies as belonging to it. At common law, if a man were given an estate in fee simple, with no condition annexed to it specially, there was a condition impliedly attached to the grant that the tenant would not commit treason; for breach of this condition the estate was forfeited.

100. An estate upon condition expressed is one attached to the grant specially at the time of the conveyance, that is, named in the deed, whereby the estate shall either commence, be enlarged, or be defeated upon the happening of an uncertain event; as where an estate is conveyed to a person and his heirs so long as they continue tenants of a certain manor. While this is a fee simple and the largest estate known to the law, yet it may come to an end by the removal of the grantee, or of his heirs, from the manor.

101. Conditions are also conditions precedent and conditions subsequent. A condition precedent is one that must be performed before the estate can vest or commence. Thus a devise as follows: "If my son Thomas become a member of the Presbyterian church, I give him all of my property, real and personal." If Thomas never join the Presbyterian church, he will not receive the property. A condition subsequent is one whose effect is to defeat an estate already

175

vested, as where a devise was made to a man, on the condition that if he should fall into drunkenness and revelry, his estate should cease.' Since conditions subsequent tend to defeat estates already vested, they are discouraged by the courts. There are certain circumstances under which conditions become inoperative, that is, breach of them will no longer defeat the estate. This occurs when the condition becomes impossible of performance, when it is contrary to good morals, or when it is inconsistent with the estate granted.""

102. Conditions do not generally affect the alienability of estates. They may be freely conveyed, subject to the condition. Certain forms of conditions are of very frequent occurrence in modern conveyances. Houses are conveyed subject to the condition that they shall never be used as places for the sale of intoxicating liquors, or that they shall never be converted into slaughter houses or glue factories. Such conditions are valid and are usually enforced. For breach of condition the grantor has the right of entry. To take advantage of his right to declare a forfeiture he must act promptly and show his intention at once, for it is a right that may be defeated by inaction or acquiescence. Unless this be done the grantee is entitled to hold his estate. Where the condition is not one that demands a continuous performance, after it has once been performed the estate becomes absolute."

177

103. Conditional Limitation. In the grant of such an estate conditioned upon the continuance of the grantees as tenants of the manor, if a further estate be granted to another person, in case of the removal of the first-named grantees there will be created an estate called a conditional limitation. The grant, in such case, could be of an estate to A and his heirs so long as they shall continue tenants of a certain manor, with remainder to B and his heirs; and upon

175 Mitchell, Real Est. and Conv., p. 181.

176 41 Pa. 341-349 (1861); 10 Pick. (Mass.) 507 (1830).

177 See Forfeiture, infra.

the removal of A, or his heirs, from the manor, B, or his heirs, would be entitled to the estate.

104. Power to Convey.

It frequently happens that a

person who has neither a title to, nor an interest in, lands, has, nevertheless, the power to convey a good title to This power may be conferred by law, by

another person. deed, or by will. title to lands in

A sheriff, for instance, may convey a good which he never had any interest. Powers are divided into those relating to land and those simply collateral.

105. A power relating to land is one given to a person who has an interest in the land to dispose of it in a certain way. Thus, A who is tenant for life of the Blackacre estate may be given power to convey it in fee to either of two persons, or to whomever he chooses. Such powers are interpreted liberally, that is, the court will follow the apparent intention of the person creating the power, rather than adhere strictly to the language.

106. A power simply collateral is one given to a person who is not interested in the land; as a power of sale to executors. These powers are construed strictly; the words of the grant are observed literally. There is no particular form of words which must be used in the creation of a power. The governing consideration is the intention. He who creates the power is called the donor. It is necessary that any creation of a power to sell lands be in writing. And a power to execute a deed must be by writing under seal."

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107. Tenancy in Severalty, Joint Tenancy, and Tenancy in Common. - Estates with respect to the number and connection of their owners, the tenants who occupy and hold them, are such as are held in severalty, in joint tenancy, and in common.

Real property is owned in severalty when the owner holds it in his own right only, without any other person being

178 Mitchell, Real Est and Conv., p. 506.

joined or connected with him in point of interest during his estate therein. This is the most common and usual way of holding property, and all titles are supposed to be of this sort unless expressly declared to be otherwise.'

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A joint tenancy exists where several persons own property jointly in equal shares, each having the same interest in the whole and every part, with the benefit of survivorship, so long as the tenancy remains. Such persons are tenants who

hold individually and jointly, having one and the same interest, secured through one and the same conveyance, commencing at the same time and continuing for the same period, or determinable by the same contingency, and held by one and the same possession.""

108. How a Joint Tenancy Is Constituted. - To constitute a joint tenancy, there must be:

1. Unity of Interest. - The tenants must have one and the same interest. One joint tenant cannot be entitled to one quantity of estate and the other to a different one; one cannot be tenant for life and the other tenant for years.

2. Unity of Title. - The estates of the joint tenants must be created by one and the same act. If the joint estate be created by deed, the estates of all the joint tenants must be granted in that deed."**

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3. Unity of Time. - The estate of the joint tenants must be vested at one and the same period, as well as by one and the same title. Thus, an estate to A and B, or an estate to A for life, remainder to B and C; in the first case, A and B are joint tenants in an estate to be enjoyed at once; in the second case, B and C are joint tenants in a vested remainder in fee so that their title is the same, and their remainder vests at the same period; that is, at the creation of the

estate.

4. Unity of Possession. - Each of the tenants has the entire possession of the property, as well of every parcel as of the

whole. Each owns an undivided fraction of the whole and not the whole of an undivided fraction.

109. The most distinctive feature of a joint tenancy is the right of survivorship by which, upon the death of one joint tenant, there having been no severance of the estate, his entire interest is cast upon the survivor or survivors, to the exclusion of the inheritance of the same by his heirs, and so on, until the titles to all the shares vest at length in the last survivor, who is entitled to the whole estate. A joint tenant, therefore, has no interest which he can dispose of by will, but he can mortgage or convey his interest.' The right of survivorship has been abolished in some of the United States, except in the case of joint trustees, and some other special instances.1

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The right of survivorship will be defeated, if one joint tenant convey his interest to a stranger, or if the estates be severed (that is, separated, so that they no longer present the essential unities) in any other way, as by a lease or the marriage of a female joint tenant. A mortgage by one joint tenant of his interest, also, will destroy the right of survivorship, in so far as the mortgage lien extends, and the survivor will be entitled to the equity of the redemption only.18*

A joint tenancy can only arise by grant or by purchase, that is, by the act of the parties; it can never arise by operation of law nor by implication. It may be severed by destroying one of the four essential unities. The tenants may agree to make partition of the lands, and hold them in severalty, in which event they will no longer be joint tenants. If one of the joint tenants convey to a third person, this severs the unity of title and destroys the joint. estate. When a joint tenancy is destroyed, except by the severance of the unity of possession, a tenancy in common is created."

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110. There is a peculiar kind of joint tenancy known as tenancy by entireties. It exists only between husband

182 144 Ind. 1 (1895).

183 Stat. of Pa., March 31, 1812.

184 144 Ind. 1 (1895).

1852 Black. Comm. 180-190.