bility of the title, that doubt could have been settled in a proper action between the plaintiffs and their vendees."

Attributes of a Possibility of Reverter

75. A possibility of reverter was heritable at common law and devisable under the Statute of Wills, but was not assignable inter vivos.2 The possibility is clearly inheritable and devisable in Pennsylvania, although no decision to that effect has been found, and is assignable by deed inter vivos at law.

Right of Entry for Condition Broken

76. A condition is where there is annexed to the grant of an estate at common law, a proviso either in the same deed or in another deed, that upon the doing of some act dependent on the will of the grantee, the grantor can re-enter and have back the estate which he granted. The right of the grantor is called a right of entry for condition broken, and can be enforced only by actual re-entry by the grantor or his heirs.* Such conditions are of frequent occurrence in modern times, and the right to enter for condition broken has been recognized in Pennsylvania. The right to re-enter at common law was an estate in the land, was heritable but was not devisable or assignable inter vivos. It is assignable inter vivos in Pennsylvania at least in the case of a ground-rent deed.

6

Distinction Between Possibility of Reverter and Right of Entry for Condition Broken

77. The distinction between a possibility of reverter and a right of entry for condition broken depends on the difference

1 The decree actually made would seem to have no real effect on the matter. The court was powerless to order the destruction of the original deed as a common law conveyance. It had already operated at common law, and the court could no more recall it than it could recall the day before yesterday. It is important to recollect in this connection that the cancellation of the deed is only necessary in a jurisdiction like England, where there are no recording acts, and consequently a deed is liable to be used fraudulently. In Pennsylvania

8

7

in the grants upon which they respectively arise. In the case of a determinable fee, the title reverts of itself upon the happening of the event specified, without any clause to that effect, and without any conveyance. This consequence flowed from the theory of the determinable fee, which is that the fee is granted until a certain event shall happen, and no longer. In the case of a condition, the whole fee is granted, and there is a condition upon which it can be taken back. The grantor or his heirs must make an entry before the right can be enforced. It is often difficult to distinguish between the two cases."

10

Executory Devise Defined

78. The exact origin of the executory devise and the meaning of the term are involved in some obscurity. It will be sufficient for our purpose to refer the limitation to the provisions of the Statute of Wills, which permitted devises to be made by the owner "at his free will and pleasure." The courts, therefore, allowed a freedom of disposition which had been unknown at common law. An executory devise has been defined as "a limitation by will of a future estate or interest in land, which cannot consistently with the rules of law, take effect as a remainder." The two most common instances of

Challis on Real Prop., 2 ed. (1892), p. 234 et seq. This distinction was overlooked by the reporter in the first paragraph of the syllabus of Methodist Church v. Public Ground Co., 103 Pa. 608 (1883), which reads at follows: "Wherever words in a conveyance are relied upon as creating a condition subsequent, so as to create a base or determinate fee, they must not only be such as would of themselves create a condition, but must be so connected with the grant as to qualify or restrain it." This is plainly a notion of the reporter, and is not supported by any decided case or by anything to be found in the language of the court. The nearest approach is the language of Mr. Justice Mercur, on p. 614,

where he says: "Whatever words are relied on as creating a condition must not only be such as of themselves would create a condition, but must be so connected with the grant as to qualify or restrain it." See also opinion of the court below, in Slegel v. Lauer, 148 Pa. 236 at 244 (1892).

10 See Challis, Real Prop., 2 ed. (1892), p. 233. See the doubtful case of Penna. R. R. Co. v. Parke, 42 Pa. 31 (1862).

an executory devise are a devise over after a fee, and a gift of the whole estate to begin in futuro.5

Attributes of an Executory Devise

at

79. An executory devise was generally indestructible common law by any determination or disposition of the preceding estate except with the concurrence of the executory devisee. Where, however, an executory devise was limited after an estate tail, it was destructible by a common recovery, and in Pennsylvania by the deed which took the place of that cumbersome action. Under the Acts turning an estate tail into an estate in fee,' an executory devise limited on the estate tail would remain and take effect if otherwise valid, and become indestructible, as a common recovery cannot be suffered by a tenant in fee. An executory devise in Pennsylvania is heritable, although the devisee die before the happening of the contingency, is a subject of levy and sale under execution,10 and is devisable under the Statute of Wills. An executory devise was not assignable by deed inter vivos at common law, but the law is now probably otherwise in Pennsylvania.3 An executory devise may also be released by the executory devisee.1

2

8

Distinction Between a Contingent Remainder and an Executory Devise

5

80. The distinction between a contingent remainder and an executory devise is well put by Mr. Butler as follows: "The principal difference between contingent remainders and executory 'See Nicholson v. Bettle, 57 Pa. 384 (1868).

5

8 Fearne, Remainders, p. 424 (Butler's Note E. V.); see also pp. 428, 429.

Challis, Real Prop., 2 ed. (1892), p. 164; Fearne, Remainders, p. 554.

9 Chambers v. Wilson, 2 Watts, 495 (1834); stated $450, post.

6 Fearne, Remainders, p. 423-424; Linn r. Alexander, 59 Pa. 43 (1868), semble; Sharswood, J., in Taylor v. Taylor, 63 Pa. 481 at 486 (1870); Ralston v. Truesdell, 178 Pa. 429 (1896). The dictum of Gibson, C. J., contra in Boyd v. Bigham, 4 Pa. 102 at 109 (1846), is obscure and may be disregarded.

'See $23, ante.

10 DeHaas v. Bunn, 2 Pa. 335 (1845). 1 Challis, Real Prop., 2 ed. (1892), p.

1

164.

2

164.

3

Challis, Real Prop., 2 ed. (1892), p.

Dictum, Parsons, J., in Rash's Est.,

2 Parsons, 160 at 161 (1850).

4

Coates Street, 2 Ash. 12 (1831); Fearne, Remainders, p. 423.

5 Note to Fearne, Remainders, p. 416.

devises is, first, that a contingent remainder may be limited in conveyances at common law; an executory devise is admitted only in last wills and testaments. Secondly, that a contingent remainder relates only to lands, tenements and hereditaments; an executory devise respects personal estates as well as real. Thirdly, that a contingent remainder requires a freehold to precede and support it; an executory devise requires no preceding estate to support it. Fourthly, that that a a contingent remainder must vest, at farthest, at the instant the preceding estate determines; but in respect to an executory devise, if there be any preceding estate, it is not necessary that the executory devise should vest when such preceding estate determines. And fifthly, that the great and essential difference between the nature of a contingent remainder and that of an executory devise consists in this, that the first may be barred and destroyed or prevented from taking effect by several different means; but it is a rule, that an executory devise cannot be prevented or destroyed by any alteration whatsoever in the estate out of which or after which it is limited."

Escheat, Dower and Curtesy

81. Escheat occurred when the lord, by virtue of the feudal tenure, took the land upon a failure of the heirs of the tenant. The right was feudal, and extended only to real estate. It exists in Pennsylvania today by statute, and therefore arises by operation of law. In like manner, dower and curtesy are not created by the act of the donor. They are, therefore, not within the rules treated in this book."

Rights in the Land of Another

82. There are a number of cases of rights which one man may have in the land of another, such as easements, profit a prendre, etc. These rights cannot arise except by the consent, expressed or implied, of the servient tenement, and are rarely created by gift. For that reason they will not be discussed.8

6 Challis, Real Prop., 2 ed. (1892), Chap. 6, p. 33.

7 See §380, post.

8 See $366, post.

Rights Arising by Contract

83. Interests in property sometimes arise by contract, as in the case of covenants as to the use of land, etc. These interests are outside the scope of this book, as they do not arise by way of gift. Therefore no further comment on them

is necessary.

Summary of Future Legal Interests in Land

84 The reversion is a present interest in land. The future interests in land are remainders, vested and contingent, possibilities of reverter, rights of entry for condition broken, and executory devises. All of these future interests have survived in Pennsylvania. Vested remainders, executory devises, rights of entry for condition broken, are indestructible except by the consent of the party entitled thereto, but contingent remainders are destructible under certain circumstances. Whatever the common law may have been, all of these interests are now freely devisable, heritable, and probably assignable by deed inter vivos, and are liable for debts. It would also appear that there is no rule of the common law relating to the creation of any of these estates except the rules to which we have particularly referred. We have now examined the legal future interests in land, and in Part III 10 will consider the application of the rule against perpetuities to these interests.

9 See $381, post.

10 See Chap. 16, §§360-370, post.