The effect of a condition precedent is, when performed, to vest an estate, give rise to an obligation, or enlarge an estate already vested; Ludlow v. R. Co., 12 Barb. (N. Y.) 440. Unless a condition precedent be per formed, no estate will vest; and this even where the performance is prevented by the act of God or of the law ; Co. Litt. 42; 2 Bla. Com. 157 ; 4 Kent 125 ; Mizell v. Burnett, 49 N. C. 249, 69 Am. Dec. 744; Tilley v. King, 109 N. C. 461, 13 S. E. 936. Not so if prevented by the party imposing it; Jones v. Walker, 13 B. Mohr. (Ky.) 163, 56 Am. Dec. 557.
If a condition subsequent was void at its creation, or becomes impossible, unlawful, or in any way void, the estate or obligation re mains intact and absolute ; 2 Bla. Coro. 157; Taylor v. Sutton, 15 Ga. 103, 60 Am. Dec, 682. Where the condition upon which an es tate is to be divested and go to a third party is founded on a contingency that can never happen, the grantee will take a fee simple; Munroe v. Hall, 97 N. C. 206, 1 S. E. 651.
In case of a condition broken, if the gran tor is in possession, the estate revests at once; Lincoln & Kennebeck Bank v. Drum mond, 5 Mass. 321; Hamilton v. Elliott, 5 S. & R. (Pa.) 375; Andrews v. Seuter, 32 Me. 394; Thrall v. Spear, 63 Vt 266, 22 Atl. 414; Higbee v. Rodeman, 129 Ind. 244, 28 N. E. 442; Alford v. Alford, 1 Tex. Civ. App. 245, 21 S. W. 283. But see Willard v. Henry, 2 N. H. 120. But if the grantor is out of possession, he must enter ; Cross v. Carson, 8 Blackf. (Ind.) 138, 44 Am. Dec. 742; Phelps v. Chesson, 34 N. C. 194; Bowen v. Bowen, 18 Conn. 535 ; Sperry v. Sperry, 8 N. H. 477; Inhabitants of Bangor v. Warren, 34 Me.
324, 56 Am. Dec. 657; 8 Exch. 67; and is then in, as of his previous estate; Co. Litt. Butler's note, 94. Only the grantor, his heirs or devisees, can take advantage of the failure to perform a condition subsequent, contained in a deed; Boone v. Clark, 129 Ill. 466, 21 N. E. 850, 5 L. R. A. 276; Skip with v. Martin, 50 Ark. 141, 6 S. W. 514.
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, Ten. 26. Statutory have equal rights in this respect with common-law heirs; Bowen v. Bowen, 18 Conn. 535 ; Marwick v. Andrews, 25 Me. 525 ; and in some of the states the common law rule has been broken in upon, and the devisee may enter ; McKissick v. Pickle, 16 Pa. 150 ; Hayden v. Stoughton, 5 Pick. (Mass.) 528; contra, Underhill v. Ry. Co., 20 Barb. (N. Y.) 455; while in others even an assignment of the grantor's interest is held valid, if made before breach; McRis Sick v. Pickle, 16 Pa. 140; and of a lar estate; Van Rensselaer v. Ball, 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 Per formance of the trust; Co. Litt. 2365, Downer v. Downer, 9 Watts (Pa.) 60; er v. Walker, 2, Conn. 201, 7 Am. Dec. 264.
Consult Blackstone; Kent, Commentaries; Crabb; Washburn, Real Prop.; Leake, Pol lock, Contracts. As to effect of conditions in deeds, see Conger v. Low, 124 Ind. 368, 24 N. E. 889, 9 L. R. A. 165.