Sec 616

The happening of a condition subsequent (auflosende Bedingung) causes the title at once to revert to the party to whom it is limited. The reversioner has a right, on the condition occurring, to resume possession; and according to the Roman law, he has an immediate title to the thing, not merely a claim against a person.1 According to our own law, on breach of a condition subsequent the property reverts to the grantor.2 Hence, a settlement by a father of four thousand dollars on a married daughter, with a provision, that the money should revert to him should she die in an approaching confinement, has been held to give a vested right to her father to the reversion upon her death taking place at such confinement.3 - "Whether the condition reverts is a matter of law when there are no disputed facts. Thus, in a case decided in Wisconsin, in 1881,4 a "reaper and self-binder" was delivered to a conditional purchaser in July, and used in the harvest of that season, and found defective. In January or February following, the vendor's agent called on the purchaser in relation to payment for the machine, and the purchaser said he would give nothing for it; but he still kept it and did not offer to return it until the following April. It was held that as a matter of law, the machine was not returned in reasonable time, and judgment should be entered for the value. In such cases it was said, the question may be treated as one of law, and passed upon by the court without any encroachment upon the province of the jury.5 - The title that reverts, however, may be merely a title not to be sued. Thus, an insurance policy may provide, that unless a suit be brought within a year after death the insured's policy is to be forfeited; and in such case, when the year expires, the title of the insurer to immunity is established.1

On happening of condition subsequent title at once reverts.

1 "It is well settled," said Marston, C. J., "that a condition subsequent may be waived, where broken, by the party who has the right to avail himself of it, and this may be proven, as well by acts and conduct as by an express agreement, and where once waived it is gone forever. If, therefore, it appeared that the grantor of the defendant had used these premises or the buildings thereon for the purpose of selling intoxicating liquors therein, to the knowledge of the plaintiffs, or either of them, and the defendant subsequently purchased the premises, and made valuable improvements thereon without objection, or any steps being taken by the plaintiffs to insist upon a forfeiture, this would constitute a waiver of the condition and forfeiture. Gray v. Blanchard, 8 Pick. 284. That the plaintiffs could waive the condition there can be no question, and, if they permitted the premises to be used in violation thereof, they could not stand by, see the property change hands, and, after valuable improvements had been made thereon, then step in, insist upon a forfeiture, and thus acquire the improvements made upon the strength of their seeming acquiescence." Barrie v. Smith, Sup. Ct. Mich. 1881. 2 Ibid.; supra, sec 608.

1 Windscheid, sec 90.

2 Cowell v. Spring Co., 100 U. S. 55. In this case there was a condition in a deed of land, avoiding it in case intoxicating liquors should he sold in any place of public resort on it. It was held that on breach of the condition, the grantor had a right to treat the estate as reverted. - Where a deed conveyed a strip of land to a railroad company, to them, their successors, and assigns, forever, "provided always, and this deed is upon the express condition," that a certain system of drainage was to be kept up by the railroad company, it was ruled that this created a condition subsequent, voidable by the grantor upon condition broken; but that no action for recovery of the land could be brought by the grantor until he had made entry upon the land after condition broken, or made claim, if entry was impossible. Hammond v. R. R., 15 S. C. 10.

3 Herrington v. Robertson, 71 N. Y. 280; and see Westenberger v. Reist, 13 Penn. St. 594.

4 Gammon v. Abrams, 53 Wis. 323; as cited in 25 Alb. L. J. 137.

5 The court cited 1 Greenl. Ev. sec 49, and notes; Williams v. Porter, 41 Wis. 423; Hutchinson v. Chicago, etc. R. Co., 41 id. 542; Berg v. Chicago, etc., R. Co., 50 id. 419. See, also, Lemke v. Chicago, etc., R. Co., 39 Wis. 450; Boothby v. Scales, 27 id. 626; 2 Sedg. Damages, 173; Vaughn v. Howe, 20 Wis. 497.