School District No. 21 v. Wallowa County

Mr. Justice Burnett delivered the opinion of the court. Ejectment is the proper remedy to he employed by the grantor of real property to recover the same for breach of a condition subsequent and may be maintained without previous demand for possession: Seeck v. Jakel, ante, p. 35 (141 Pac. 211). This remedy, however, does not inure to the one to whom the grantor in the original deed may afterward attempt to convey the premises either before or after breach of the condition. The reason is that by the first conveyance the whole estate went out of the grantor therein. He had nothing left to convey. True enough, there was a possibility that some time the title might return to him; but until it does, through his assertion of his right arising from the breach and his actual recovery of the land, there is nothing upon which his conveyance to a stranger can operate. Because the grantor may waive his right to insist that the condition subsequent has been broken, his chose in action in the premises is classed as a personal privilege to be asserted only by himself or his heirs. It is not assignable, and, until he actually recovers the land as upo'n breach of the condition, his deed confers no right upon his subsequent grantee: O’Donnell v. Robson, 239 Ill. 634 (88 N. E. 175); Berenbroick v. St. Luke’s Hospital, 23 App. Div. 339 (48 N. Y. Supp. 363); Humphreys County v. Baker, 124 Tenn. 39 (134 S. W. 863); Rice v. Boston & W. R. Corp., 12 Allen (Mass.), 141; Underhill v. Saratoga & W. R. R. Co., 20 Barb. (N. Y.) 455; Ruch v. Rock Island, 97 U. S. 693 (24 L. Ed. 1101). The judgment is affirmed. Aeeirmed. Rehearing Denied.