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precedent.

S678. A condition precedent is one which is to Condition be fulfilled before some right dependent thereon accrues, or some act dependent thereon is porformed.

See Tipton v. Feitner, 20 N: Y., 423; Grant v. Johnson,

5 id., 247; Parmelee v. Oswego, &c., R. R. Co., 6 id.,
74; Oakley v. Morton, 11 id., 25; Goodwin v. Hol-
brook, 4 Wend., 377; Weisser v. Maitland, 3 Sandf.,
318; Ellen v. Topp, 6 Exch., 424; Graves v. Legg, 9
Exch., 709.

concurrent.

$679. Conditions concurrent are those which are Conditions mutually dependent, and are to be fulfilled at the same time.

See Beecher v. Conradt, 13 N. Y., 108; Dunham v. Pettee,
8 id., 508; Lester v. Jewett, 11 id., 453; Kelley v. Up-
ton, 5 Duer, 336; Williams v. Healey, 3 Den., 363.

subsequent.

$ 680. A condition subsequent is one referring to Condition a future event, upon the happening of which the obligation becomes no longer binding upon the other party, if he chooses to avail himself of the condition.

Nicoll v. N. Y. & Erie R. R. Co., 12 N. Y., 121, 130.

$681. Before any party to an obligation can require another party to perform any act under it, he must fulfill all conditions precedent thereto imposed upon himself;1 and must be able, and offer, to fulfill all conditions concurrent, so imposed upon him, on the like fulfillment by the other party: except as provided by the next section.

'Oakley v. Morton, 11 N. Y., 25; Smith v. Brady, 17 N.

Y., 173; Cunningham v. Jones, 20 id., 486; Grant
v. Johnson, 5 id., 247; Catlin v. Tobias, 26 id., 217;
Ellen v. Topp, 6 Exch., 424.

'Beecher v. Conradt, 13 N. Y., 108; Dunham v. Pettee,
8 id., 508; Lester v. Jewett, 11 id., 453.

S 682. If a party to an obligation gives notice to another, before the latter is in default, that he will not perform the same upon his part, and does not retract such notice before the time at which performance upon his part is due, such other party is entitled

Perform of condiessential.

ance, &c.,

tions when

When per &c. ex

formance,

cused.

to enforce the obligation without previously performing or offering to perform any conditions upon his part, in favor of the former party.

Cornwell v. Haight, 21 N. Y., 462; Skinner v. Tinker, 34

Impossible or unlawful

void.

Barb., 333; Crist v. Armour, id., 378; Clark v. Cran

dall, 27 id., 73; North v. Pepper, 21 Wend., 636; see Crary v. Smith, 2 N. Y., 60.

$683. A condition in a contract, the fulfillment of conditions which is impossible or unlawful,' within the meaning of the article on the OBJECT OF CONTRACTS, or which is repugnant to the nature of the interest created by the contract," is void.

Conditions involving

1 Story Cont., § 32, b.

De Peyster v. Michael, 6 N. Y., 496.

S684. A condition involving a forfeiture must be forfeiture, strictly interpreted against the party for whose benefit it is created.

con

strued.

Hitchcock v. Northwestern Ins. Co., 26 N. Y., 68; Doe d. Abdy v. Stevens, 3 B. & Ad., 299; Catlin v. Springfield Ins. Co., 1 Sumner, 440.

Who has the right of selection.

Right of selection, how lost.

CHAPTER IV.

ALTERNATIVE OBLIGATIONS.

SECTION 685. Who has the right of selection.
686. Right of selection, how lost.

687. Alternatives indivisible.

688. Nullity of one or more of alternative obligations.

S 685. If an obligation requires the performance of one of two acts, in the alternative, the party required to perform has the right of selection; unless it is otherwise provided by the terms of the obligation. Smith . Sanborn, 11 Johns., 59; Disbrough v. Neilson, 3 Johns. Cas., 81; Small v. Quincy, 4 Greenl., 497.

S686. If the party having the right of selection between alternative acts does not give notice of his selection to the other party within the time, if any, fixed by the obligation for that purpose,' or, if none is so fixed, before the time at which the obligation

ought to be performed, the right of selection passes
to the other party.3

1 Sage v. Hazard, 6 Barb., 179; McNitt v. Clark, 7 Johns.,
465.

'Brooke Abr., Dette, 159; Choice v. Moseley, 1 Bailey,

136; Townsend v. Wells, 3 Day, 327; see Gilbert v.
Danforth, 6 N. Y., 585, 592.

McNitt v. Clark, 7 Johns., 465.

tives indi

S687. The party having the right of selection Alternabetween alternative acts, must select one of them in visible. its entirety, and cannot select part of one and part of another, without the consent of the other party. Code La., 2064; Code Napoleon, 1191.

$688. If one of the alternative acts required by an obligation is such as the law will not enforce,' or becomes unlawful,2 or impossible of performance, the obligation is to be interpreted as though the other stood alone.

1 Code La., 2065; Code Napoleon, 1192; Stevens v. Webb,

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Nuility of of alterna

one or more

tive obliga

tions.

TITLE III.

TRANSFER OF OBLIGATIONS.

SECTION 689. Burden of obligation, not transferable.
690. Rights arising out of obligation, transferable.
691. Covenants running with land, what.

692, 693, 694. What covenants run with the land.

695. What covenants run with land when assigns are named.
696. Who are bound by covenants.

697. Who are not.

698. Apportionment of covenants.

S689. The burden of an obligation may be transferred, with the consent of the party entitled to its benefit, but not otherwise, except as provided by section 697.

This is as true of covenants running with the land, as of
any other obligations. The original covenantor remains
liable to the covenantee, notwithstanding that the land

Burden of not trans

obligation

ferable.

Rights arising out of

passes into other hands (House v. Burr, 24 Barb., 525 Damb v. Hoffman, 3 E. D. Smith, 361; Port v. Jackson, 17 Johns., 239, 479; Jackson v. Brownson, 7 id., 227). So where one has agreed to perform a service, he cannot compel the other party to accept the service from a third person and to release him therefrom (Robson v Drummond, 2 B. & Ad., 303). It is not meant by this section to imply that a third person cannot assume the obligations of a contract between other parties, but only that he cannot relieve a party thereto from his obligations, without the consent of the creditor.

S 690. A right arising out of an obligation is the obligation property of the person to whom it is due, and may be transferred as such.

able.

Covenants running with land, what.

What covenants run

with the land.

18.

See section 367; Short v. Spackman, 2 B. & Ad., 962;
Hitchcock v. Northwestern Ins. Co., 26 N. Y., 68.

S691. Certain covenants, contained in grants of estates in real property, are appurtenant to such estates, and pass with them, so as to bind the assigns of the covenantor, and to vest in the assigns of the covenantee, in the same manner as if they had personally entered into them. Such covenants are said to run with the land.

S692. The only covenants which run with the land, are those specified in this Title,' and those which are incidental thereto."

'Parties cannot, by any form of words, attach newly invented covenants to real property (Keppell v. Bailey, 2 Myl. & K., 517; but see Tallmadge v. East River Bank, 26 N. Y., 105; Tulk v. Moxhay, 2 Phil., 774; 11 Beav., 571; Heriot's Hospital v. Gibson, 2 Dow, 301).

2 The contract of a surety for the payment of rent is annexed to the obligation for the rent, and therefore passes therewith (Allen v. Culver, 3 Denio, 284). This, however, is the necessary result of a principle elsewhere declared (see section 481).

$693. Every covenant contained in a grant of au estate in real property, which is made for the direct benefit of the property, or some part of it then in existence, runs with the land.

Denman v. Prince, 40 Barb., 213; Verplanck v. Wright,
23 Wend., 506; Norman v. Wells, 17 id., 136; Myers
v. Burns, 33 Barb., 401; Jourdain v. Wilson, 4 B. &
Ald., 266; Vernon v. Smith, 5 id., 1; Martyn v. Clue,
18 Q. B., 661; Wakefield v. Brown, 9 id., 209; Allen
v. Cuiver, 3 Denio, 284; Demarest v. Willard, 8 Cow., 206.

$ 694. The last section includes covenants of war- Id.
ranty,' for quiet enjoyment, or for further assurance,3
on the part of a grantor, and covenants for the pay-
ment of rent," or of taxes or assessments upon the
land, on the part of a grantee.

1 Suydam v. Jones, 10 Wend., 180; Withy v. Mumford, 5

Cow., 137; Blackwell v. Atkinson, 14 Cal., 470;
Mitchell v. Warner, 5 Conn., 497; Wyman v. Bal-
lard, 12 Mass., 306.

Lewis v. Campbell, 8 Taunt., 715; Markland v. Crump,
1 Dev. & Bat., 94; Campbell v. Lewis, 3 B. & Ald.,
392; Noke v. Awder, Cro. El., 436.

Bennett v. Waller, 23 Ill., 97; Colby v. Osgood, 29 Barb.,
339.

The covenants mentioned in this section are all the
"usual covenants" that are recognized in this state
as running with the land. In Kingdom v. Nottle (1
M. & Selw., 355; 4 id., 53), it was held that a cove-
nant of seisin ran with the land, but this decision
has been overruled in the courts of this country
(See Mitchell v. Warner, 5 Conn., 497; Fowler v.
Poling, 2 Barb., 300; Greenby v. Wilcocks, 2 Johns.,
1; Ballard v. Child, 34 Me., 355; Thayer v. Clemence,
22 Pick., 490; Marston v. Hobbs, 2 Mass., 439).
Van Rensselaer v. Read, 26 N. Y., 558; Van Rensse-
laer v. Hays, 19 N. Y., 68; Astor v. Lent, 6 Bosw.,
612; Van Rensselaer v. Bonesteel, 24 Barb., 655;
Close v. Wilberforce, 1 Beav., 113; Jenkins v. Port-
man, 1 Keen, 435. It is not necessary that the
covenant should express an intention to bind the
covenantor's assigns (Jacques v. Short, 20 Barb., 269).
Post v. Kearney, 2 N. Y., 394; 1 Sandf., 105.

$695. A covenant for the addition of some new thing to real property, or for the direct benefit of some part of the property not then in existence or annexed thereto, when contained in a grant of an estate in such property, and made by the covenantor expressly for his assigns or to the assigns of the covenantee, runs with the land so far only as the assigns thus mentioned are concerned.

What cove with land

nants run

when as

signs are

named.

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