Void conditions are those which are of no validity or effect.
Creation of. Conditions must be made at the same time as the original conveyance or contract, but may be by a separate instru ment, which is then considered as constitut ing one transaction with the original ;. Ham ilton v. Elliott, 5 S. & R. (Pa.) 375; Cooper v. Whitney, 3 Hill (N. Y.) 95; Brown v. Dean, 3 Wend. (N. Y.) 208; Perkins' Lessee v. Dibble, 10 Ohio 433, 36 Am. Dec. 97; Bas sett v. Bassett, 10 N. H. 64; Blaney v. Bearce, 2 Greenl. (Me.) 132; Watkins v. Gregory, 6 Blackf. (Ind.) 113. Conditions are some times annexed to and depending upon es tates, and sometimes annexed to and depend ing upon recognizances, statutes, obligations, and other things, and are also sometimes contained in acts of parliament and records; Shep. Touchst. 117.
Unlawful conditions are void. Conditions in restraint of marriage generally are held void ; Poll. Contr. 334; Williams v. Cowden, 13 Mo. 211, 53 Am. Dec. 143; see Coin. v Stauffer, 10 Pa. 350, 51 Am. Dec. 489; Den field, Petitioner, 156 Mass. 265, 30 N. B. 1018 ; Knight v. Mahoney, 152 Mass. 523, 25 N. E. 971, 9 L. R. A. 573; Mann v. Jackson, 84 Me. 400, 24 Atl. 886, 16 L. R. A. 707, 30 Am. St. Rep. 358; otherwise of conditions restraining from marriage to a particular person, or restraining a widow from a second marriage ; 10 E. L. & Eq. 139; 2 Sim. 255; Fahs v. Fahs, 6 Watts (Pa.) 213. A condi tion in general restraint of alienation is void; Schermerhorn v. Negus, 1 Den. (N. Y.) 449; 6 East 173; Potter v. Couch, 141 U. S. 296, 11 Sup. Ct. 1005, 35 L. Ed. 721; and see Blackstone Bank v. Davis, 21 Pick. (Mass.) 42, 32 Am. Dec. 241; but a condition restraining alienation for a limited time may be good; Co. Litt. 223. An unreasonable con dition is also void ; In re Vandevort, 62 Hun 612, 17 N. Y. Supp. 316; as is a condition repugnant to the grant ; Hardy v. Galloway, 111 N. C. 519, 15 S. E. 890, 32 Am. St. Rep. 828.
Where land is devised, there need be no limitation over to make the condition good; 1 Mod. 300; 1 Atk. 361. See Tilley v. King, 109 N. C. 461, 13'S. E. 936 ; but where the subject of the gift is personalty without a limitation over, the condition, if subsequent, is held to be in terrorem merely, and void ; 1 Jarm. Wills 887; Mcllvaine v. Gethen, 3
Whart. (Pa.) 575. See In re Vandevort, 62 Hun 612, 17 N, Y. Supp. 316. But if there be a limitation over, a non-compliance with the condition divests the bequest ; 1 Eq. Cas. Abr. 112. A limitation over must be to per sons who could not take advantage of a breach; Jackson v. Topping, 1 Wend. (N. Y.) 388, 19 Am. Dec. 515; Wheeler v. Walk er, 2 Conn. 196, 7 Am. Dec. 264. A gift of personalty may not be on condition subse quent at common law, except as here stated ; 1 Rolle, Abr. 412. See Halbert v. Halbert, 21 Mo. 277.
Any words suitable to indicate the inten tion of the parties may be used in the crea tion of a condition ; "On condition" is a common form of commencement.
Formerly, much importance was attached to the use of particular and formal words in the creation of a condition. Three phrases are given by the old writers by the use of which a condition was created without words giving a right of re-entry. These were Sub conditione (On condition), Provisa ita quod (Provided always), Ita quod (So that). Little ton 331; Shep. Touchst. 125.
Amongst the words used to create a condition where a clause of re-entry was added were, Quod si contingat (If it shall happen), Pro (For), Si (If), Coma (On account of); sometimes, and in case of the king's grants, hut not of any other person, ad faciendum or faciendo, ea intention, ad effectum or ad proposition. For avoiding a lease for years. such precise. words of condition are not required ; Co. Litt. 204 b. In a gift, it is said, may be present a modus, a condition and a consideration: the words of creation are ut for the modus, si for the condi tion, and quid for the consideration.
Technical words in a will will not create a condition where it is unreasonable to sup pose that the testator intended to create a technical condition; Emery v. Judge of Pro bate, 7 N. H. 142. The words of condition need be in no particular place in the instru ment; 1 Term 645; 6 id. 668.