of course, subject to a correlative liability to have his title divested.[1] Similarly, in the case of a conveyance of land in fee simple subject to condition subsequent, after the condition has been performed, the original grantor is commonly said to have a "right of entry." If, however, the problem is analyzed, it will be seen that, as of primary importance, the grantor has two legal quantities, (1) the privilege of entering, and (2) the power, by means of such entry, to divest the estate of the grantee.[2] The latter's estate endures, subject to the correlative liability of being divested, until such power is actually exercised.[3]
Passing now to the field of contracts, suppose A mails a letter to B offering to sell the former's land, Whiteacre, to the latter for ten thousand dollars, such letter being duly received. The operative facts thus far mentioned have created a power as regards B and a correlative liability as regards A. B, by dropping a letter of acceptance in the box, has the power to impose potential or inchoate[4] obligation ex contractu on A and himself; and, assuming that the land is worth fifteen thousand dollars, that particular legal quantity—the "power plus liability" relation between A and B—seems to be worth about five thousnad dollars to B. The liability of A will continue for a reasonable time unless, in exercise of his power to do so, A previously extinguishes it by that series of operative facts known as "revocation." These last matters are usually described by saying that A's "offer" will "con-
- ↑ See Davis v. Clark (1897), 58 Kan. 100; 48 Pac., 563. 565; Loiter v. Pike (1889), 127 Ill., 287, 326; Welstur v. Trust Co. (1895), 145 N. Y., 275, 283; Furley v. Palmer (1870), 20 Oh. St., 223, 225.The proposition that the grantee's power is irrevocable is subject to the qualification that it might possibly be extinguished (or modified pro tanto) as the result of a transaction between the grantor and one having the position of bona fide purchaser, or the equivalent.It is hardly necessary to add that the courts, instead of analyzing the problem of the escrow in terms of powers, as here indicated, are accustomed to stating the question and deciding it in terms of "delivery," "relation back," "performance of conditions," etc.
- ↑ In this connection it is worthy of note that Sugden, in his work on Powers (8th ed., 1861) 4, uses, contrary to general practice, the expression, "power of entry for condition broken."
- ↑ For miscellaneous instances of powers, see the good opinions in Bk. of S. Australia v. Abrahams, L. R. P. C., 265; Barlow v. Ross (1890), 24 Q. B. D., 381, 384.
- ↑ As to "inchoate" obligations, see Frost v. Knight (1872) L. R. 7 Ex. 111, per Cockburn, C. J. This matter will receive further attention in a later part of the discussion.
