Generally, where no time of performance is limited, he who has the benefit of the contract may perform the condition when he pleases, at any time during his life, Plowd. 16; Coke, Litt. 208 b, and need not do it when requested. Coke, Litt. 209 a. But if a prompt perform ance be necessary to carry out the will of a testator, the beneficiary shall not have a life time in which to perform the condition. 5 Serg. & R. Penn. 384. In this case, no pre vious demand is necessary. 5 Serg. & R. Penn. 385., But even then a reasonable time is allowed. 1 Rolle, Abr. 449. • If the place be agreed upon, neither party alone can change it, but either may with consent of the other. See CONTRACT; PER FORMANCE; 1 Rolle, 444; 11 Vt. 612; 3 Leon. 260.
Non-performance of a condition which was possible at the time of its making, but which has since become impossible, is excused if the impossibility is caused by act of God, 10 Pick. Mass. 507; or by act of law, if it was lawful at its creation, 4 1VIonr. 158 ; 1 Penn. St. 495; or by the act of the party: as, when the one imposing the obligation accepts another thing in satisfaction or renders the perform ance impossible by his own default. 21 Pick. Mass. 389. 1 Paine, C. C. 652; 6 Pet. 745; 1 Cow. N. Y. 339. If performance of one part becomes impossible by act of God, the whole will, in general, be excused. 1 Bos. & P. 242; Croke Eliz. 280; 5 Coke, 21; 1 Ld. Raym. 279.
12. The effect of conditions may be to sus pend the obligation; as, if I bind myself to convey an estate to you on condition that you first pay one thousand dollars, in which case no obligation exists until the condition is per formed : or may be to rescind the obligation; as, if you agree to buy my house on condi tion that it is standing unimpaired on the tenth of May, or I convey to you my farm on condition that the conveyance shall be void if I pay you one thousand dollars, in such cases the obligation is rescinded by the non performance of the condition: or it may modify the previous obligation; as, if I bind myself to convey my farm to you on the pay ment of four thousand dollars if you pay in bank stock, or of five thousand if you pay in money: or, in case of gift or bequest, may qualify the gift or bequest as to amount or persons.
13. The effect of a condition precedent is, when performed, to vest an estate, give rise to an obligation, or enlarge an estate already vested. 12 Barb. N. Y. 440. Unless a con dition precedent be performed, no estate will vest; and this even where the performance is prevented by the act of God or of the law. Coke, Litt. 42; 2 Blackstone, Comm. 157; 4 Kent, Comm. 125; 4 Jones, No. C. 249. Not so if prevented by the party imposing it. 13 B. Monr. Ky. 163; 2 Vt. 469.
If a condition subsequent was void at its cre ation, or becomes impossible, unlawful, or in any way void, the estate or obligation remains intact and absolute. 2 Blackstone, Comm. 157; 15 Ga. 103.
In case of a condition broken, if the grantor is in possession, the estate revests at once. 5 Mass. 321; 5 Serg. & R. Penn. 375 ; 32 Me. 394. But see 2 N. H.120. But if the grantor is out of possession, he must enter, 8 Blackf. Ind. 138; 12 Ired. No. C. 194; 18 Conn. 535; 8 N. H. 477; 34 Me. 322; 8 Exch. 67, and is then in, of his previous estate. Coke, Litt. Butler's note 94.
14. It is usually said in the older books that a condition is not assignable, and that no one but the grantor and his heirs can take advantage of a breach. Gilbert, Tenn. 26. Statutory have equal rights in this respect with common-law heirs, 2 Conn. 196; 18 id. 635; 25 Me. 625; and in some of the United States the common-law rule has been broken in upon, and the devisee may enter, 13 Serg. & R. Penn. 172; 16 Penn. St. 150; 5 Pick. Mass. 528; 10 id. 306; contra, 2 Caines, N.
Y. 345; 20 Barb. N. Y. 455; while in others even an assignment of the grantor's interest is held valid, if made after breach, 4 Harr. Del. 140, and of a particular estate. 19 N. Y. 100. In equity, a condition with a limitation over to a third person will be regarded as a trust, and, though the legal rights of the grantor and his heirs may not be destroyed, equity will follow him and compel a perform ance of the trust. Coke, Litt. 236 a; 6 Pick. Mass. 306; 9 Watts, Penn. 60; 2 Conn. 201.
Consult Blackstone ; Kent, Commentaries; Crahb; Washburn; Real Prop.; Parsons, Contracts.