The opinion of the court was delivered by
Valentine, J.:
This case and the one just decided (of this same title,) arose out of the same transactions; and the facts of the two cases, up to the amendment of the original petition in the court below separating, that case from this and filing a new petition for each case, are identical. Both cases are founded upon or at least connected with a certain judgment of the district court of Leavenworth county, rendered December 24th 1863. At the time said judgment was rendered Alice Broome owned the N.E.-J of section 36, in township No. 9, of range No. 22, in Leavenworth county. At the same time the defendant in this case, the Railway Company, had possession of a strip of said land, one hundred feet wide, running through said quarter-section, which it was grading, and intending to use for railroad purposes; and the proceeding in which said judgment was rendered was a proceeding instituted by the railway company for the purpose of obtaining the title to said strip of land for railroad purposes under the power of eminent domain, and was pending in said district court when said judgment was rendered. The judgment in said proceeding was finally rendered by the consent of both parties, and was in substance as follows: The railway company was invested with the title in fee to said strip of land upon condition that it pay for the same to Alice Broome $400, and make certain improvements thereon, and afterwards keep said improvements in repair. All these things were to be done by the railway company before the first day of May 1864. The railway company immediately paid said $400, but they have failed up to this time to make said improvements, although they have been operating their road over said strip for several years. This action, since its separation from the other action, has been for the recovery of *580said strip of land. The other action, since its separation from this, has been for the recovery of damages for the failure of the railway company to make said improvements. The verdict of the jury and the judgment of the court below in this case was for the defendant, and the plaintiff Piper now brings the case to this court.
The first question raised in this case by the plaintiff is, that the original judgment out of which these two cases originated is void for want of jurisdiction in the court rendering such judgment to render the same. This question has already been before this court, and decided adversely to the plaintiff, and we do not now choose to again consider the same. (U. P. Rly. Co. v. McCarty, 8 Kan., 125" court="Kan." date_filed="1871-07-15" href="https://app.midpage.ai/document/u-p-railway-co-v-mccarty-7882734?utm_source=webapp" opinion_id="7882734">8 Kas., 125.) The question was there decided in a case involving the validity of a judgment almost precisely like the judgment in question in this case, and which was rendered at the same time that this judgment was rendered, and by the same court, under the same laws, and in the same proceeding. And the case just decided of this title, (ante, p. 568,) was prosecuted by the plaintiff, and was decided by this court, upon the assumed validity of said judgment. And we shall now'follow those cases without further consideration or investigation.
The next question is, whether the plaintiff may recover in this action notwithstanding the assumed validity of said judgment. It will be noticed that it is not Alice Broome who prosecutes the action, but it is Gilbert U. Piper. Then, where does Piper get his authority for prosecuting the action ? Simply from the following facts: On March 26th 1864 Alice Broome sold and conveyed said quarter-section of land to David F. Laughlin. On July 25th 1864 Laughlin sold and conveyed the north-half thereof to Piper; and on October 27th 1865 Laughlin sold and conveyed the other half of the same to Piper. Now are these facts sufficient to authorize Piper to prosecute this action, or indeed to prosecute any action against the railway company? We think not. The judgment itself, so far as it attempts to impose any obligation upon the railway company, is in favor of Alice Broome alone. *581It does not purport to be in favor of her assigns, and it has never been in fact assigned to any one. And the mere sale and conveyance of the land mentioned in the judgment cannot work an assignment of the judgment. In the other action, the plaintiff claimed that said judgment created an obligation resting upon the railway company, in the nature of a covenant running with the land, to make such improvements; and in that action it was necessary for the plaintiff to so claim, for under no other theory could he maintain that action. But in this action he substantially claims, that the estate, vested by the judgment in the railway company for said strip of land, was merely an estate upon condition, liable to be forfeited back to Alice Broome, or to her assigns, upon any failure of such condition. And it is as necessary for him to so claim in this action as it was to make the other claim in the other action, for if the estate conveyed were an estate absolute, and the plaintiff had nothing but a mere judgment, or a mere covenant for the erection of said improvements, and no right to claim a forfeiture of the land for condition broken, his only remedy for a failure to make the improvements would be an action for damages, and not an action for the recovery of the land, as in this case. We agree with the plaintiff that the estate conveyed by said judgment was an estate upon condition. But as • the estate was by the very terms of the judgment to be immediately vested in the railway company, the condition was .subsequent and not precedent. And the right to demand a forfeiture of the estate for condition broken was vested in Alice Broome alone, and not in her assigns. The judgment in legal effect, we think, vested the whole of the estate in said strip of land immediately in the railway company, subject however to be forfeited back to Alice Broome, at her election, upon condition that the railway company did not fulfill the obligations imposed upon it by the judgment. (See Nicoll v. N. Y. & Erie Rld. Co., 12 N.Y., 121" court="NY" date_filed="1854-12-05" href="https://app.midpage.ai/document/nicoll-v--the-new-york-and-erie-railroad-co-3628201?utm_source=webapp" opinion_id="3628201">12 N. Y., 121; S. C. 12 Barb., 461.) The railway company failed to fulfill said obligations, but Alice Broome has never elected to demand a forfeiture of said estate. Indeed, it *582would almost seem from the authorities that by selling and conveying all her interest in the land before the condition was broken she waived the fulfillment of the condition, or at least waived the forfeiture. (Underhill v. Saratoga & Washington Rld. Co., 20 Barb., 455" court="N.Y. Sup. Ct." date_filed="1855-05-07" href="https://app.midpage.ai/document/underhill-v-saratoga--washington-rail-road-5458915?utm_source=webapp" opinion_id="5458915">20 Barb., 455; Rice v. Boston Rld. Co., 12 Allen, 142; Hooper v. Cummings, 45 Me., 359.) But however this may be, Piper obtained no right to demand a fulfillment of the conditions, or to demand a forfeiture of the estate. (See authorities above cited, and Ludlow v. N. Y. & Harlem Rld. Co., 12 Barb., 440" court="N.Y. Sup. Ct." date_filed="1852-01-05" href="https://app.midpage.ai/document/ludlow-v-new-york--harlem-railroad-5458187?utm_source=webapp" opinion_id="5458187">12 Barb., 440.) The right of a person who has created an estate upon condition, to demand a forfeiture of the estate for condition broken, is not assignable. (Washburn on Real Prop., ch. 14, paragraph 14, and the numerous cases there cited.) And certainly not assignable by an ordinary deed of conveyance. In the present case, when Alice Broome parted with her interest in said land there had been no breach of said condition. But before Piper obtained any interest in the land the breach of the condition (if there ever has been any such breach) had become complete. The failure to make said improvements occurred while Laughlin owned the land. When Alice Broome conveyed said land to Laughlin she had no estate in said strip of land, and no present power of obtaining any such estate. Her right at that time was merely a possible future contingent interest. (See Nicoll v. N. Y. & Erie Rld. Co., supra.) The present and existing estate and interest in said strip of land was at that time wholly in the railway company. Therefore, as Alice Broome had no present and existing estate in said strip of land when she conveyed said quarter-section to Laughlin, she of course conveyed no interest in the strip to Laughlin, and, as we have before seen, the personal right of demanding a forfeiture does not pass by a deed of conveyance of the land. A party who has no estate cannot convey an estate. But even if she had conveyed'some interest in said strip to Laughlin, still Piper has hardly obtained it. The supposed breach of the condition occurred while Laughlin owned said quarter-section, and therefore even if the right to demand a forfeiture for condition broken *583was assigned to Laughlin, still the right became personal to him, and he has never exercised it. Even after condition broken the title to the property does not as a rule of law pass to the person entitled to receive the same until such person in some proper way demands a forfeiture of the property. (1 Washburn on Real Property, ch. 14, paragraph 13.) Now Laughlin never demanded a forfeiture of the property by entry, suit, or otherwise. After Laughlin sold the north-half of said quarter-section to Piper, and while Piper owned one-half of the same and Laughlin the other, could one of them have demanded a forfeiture as to that portion of the strip running through his own eighty-acre tract, and both of them have allowed the railway company to retain the strip through the other eighty-acre tract? Could they divide up the forfeiture? Or could one against the will of the other have demanded a forfeiture? The fact is, neither of them ever had any right to demand a forfeiture.
The judgment of the court below is affirmed.
Kingman, C. J., concurring.
Brewer, J., not sitting in the case.