Opinion of the Court-Strahan, J. 350; Coggeshall v. Pelton, 7 Johns. Ch. 292. But aside from these authorities, the case of Brown v. Brown, 7 Or. 285, it seems to me, fully sustains the power of a public corporation in this State to take and hold property in trust for a charitable or public purpose. By his last will Cyrus Olney disposed of his property as follows: "1. I bequeath and devise all my personal property and real estate that is capable of being disposed of by will to Jackson G. Hastler and Henry S. Aiken, in trust, first, to pay all my debts; and second, to hold the rest due in perpetuity for the benefit of the town of Astoria, in the county of Clatsop, and State of Oregon." In sustaining this bequest the court said: "At the time the will was made, the charter of the town of Astoria gave it authority to 'purchase, hold, and receive property, real and personal, within said town for public buildings, school purposes, and town improvements.' Also, to purchase, receive, and hold property within and beyond the limits of the town, to be used for burial purposes, and for the reception of persons affected with contagious diseases, and for work-houses and houses of correction, and for the construction of water-works to supply the town with fresh water; and to lease, sell, and dispose of the same for the benefit of the town. . . . . If the devise had been made directly to the town of Astoria, we think it would have been valid in law. It was equally so when devised to Hastler and Aiken in trust for the benefit of the town." And Judge Dillon gives the sanction of his name to this view of the subject. He says (2 Dillon on Municipal Corporations, § 566): "Thus a conveyance of land to a town or other public corporation for benevolent or public purposes, as for a site for a school-house, city or town house, and the like, is based upon a sufficient consideration, and such conveyances are liberally construed in support of the object named." But if the premise contended for by the appellants were conceded, the conclusion which they seek to draw from it would not follow. The statute plainly confers upon counties the power to acquire and hold real property for certain purposes, and the appellants' contention is that this deed conveys property to the county outside of and for other and different purposes than those specified in the Opinion of the Court-Strahan, J. statute. This is a question which these plaintiffs cannot be permitted to raise, and in which they have no interest. That could only be done at the instance of the State. (2 Dillon on Municipal Corporations, § 574; Trustees of Davidson College v. Executors of Maxwell Chambers, 3 Jones Eq. 253; Goudie v. N. W. Co. 7 Pa. St. 253; Land v. Coffman, 50 Mo. 243.) 2. Condition in a grant. But conceding that the deed in question passed title to the land in controversy to defendant, appellants' counsel insist that it was an estate upon a condition subsequent, and that the condition not having been performed, the estate terminated upon re-entry. The determination of this question, therefore, becomes necessary. The defendant may have acquired title by the deed, or the appellants may be precluded from claiming that defendant had not legal capacity to take the land for the particular purposes specified in the deed, still, if the estate was upon a condition subsequent, and that condition has not been performed, the plaintiffs might lawfully re-enter and repossess themselves of the estate granted, and thus terminate the estate of the grantee. An estate upon condition is "one which is made to vest, to be enlarged or defeated upon the happening or not happening of some event." (Tiedman on Real Property, §§ 271, 272; Washburn on Real Property, p. 2.) "The condition which is to affect the estate may be express or implied, and it may be precedent or subsequent. An express condition, otherwise called a condition in deed, is one declared in terms in the deed or instrument by which the estate is created. An implied, or a condition in law, is one which the law implies either from its being always understood to be annexed to certain estates, or as annexed to estates held under certain circumstances. Conditions precedent are, as the term implies, such as must happen before the estate dependent upon them can arise or be enlarged, while conditions subsequent are such as when they do happen defeat the estate." (2 Washburn on Real Property, p. 3, § 2.) To create a condition in a grant, apt and appropriate words ought to be used, such as "on condition," "provided always," "if it shall so happen," or "so that the grantee pay, etc., within Opinion of the Court-Strahan, J. a specified time," and the like. Therefore, "the grant of a lot of land to set a meeting-house thereon does not imply a condition. And an estate upon condition cannot be created by deed, except where the terms of the grant will admit of no other reasonable interpretation. Therefore, reciting in a deed that it is in consideration of a certain sum, and that the grantee is to do certain things, is not an estate upon condition, not being in terms upon condition, nor containing a clause of re-entry or forfeiture. And yet these words may create a condition if a right of re-entry is reserved in favor of the grantor in case of failure to carry out the intention thus expressed." (2 Washburn on Real Property, pp. 4, 5.) In Taylor v. Binford, 37 Ohio St. 262, a conveyance for the use of school purposes only was held not to create a condition. So in Carter v. Branson, 79 Ind. 14, the words in the habendum clause of the deed, "to have and hold for the use of said religious society of friends so long as it may be needed for meeting purposes, then said premises to fall back to the original tract," did not create a condition subsequent. And the like doctrine is very clearly announced in First Methodist Episcopal Church of Columbia v. Old Columbia Public Ground Company, 103 Pa. St. 608. So, also, in Packard v. Ames, 16 Gray, 327. "A deed of land to a number of persons incorporated as a religious society, habendum to them and their heirs and assigns, and to each and every person who may hereafter become lawful owners and proprietors of a pew in a meeting-house to be built and erected thereon, and which may and shall afterwards be rebuilt thereon by the said proprietors and their successors, to the use and behoof of the said proprietors for the said purpose, and of each and every lawful owner and proprietor of a pew or pews in the meeting-house, to be built and rebuilt on the said lot of land forever, without any clause providing for forfeiture or re-entry, is not a grant upon condition that a meeting-house shall be erected and maintained on the land conveyed." So a grant of land upon a valuable consideration, upon trust that the trustee "shall at all times permit all white religious societies of Christians, and the members of such societies, to use the land as a common burying Opinion of the Court-Strahan, J. ground, and for no other purpose, was not upon condition subsequent." (Brown v. Caldwell, 23 W. Va. 187.) Neither is a grant of land which has been used as a burying-place to a town "for a burying-place forever," in consideration of love and affection, "and divers other valuable considerations," a grant upon condition subsequent. And the like doctrine is announced in Thornton v. Tramell, 39 Ga. 202; Bisley v. McNeice, 71 Ind. 434; Ayer v. Emery, 14 Allen, 67. Our conclusions on this point are strengthened by the fact that the appellants are invoking a technical rule of the common law, which rule has never been favored by the courts, but is always construed strictly. (Emerson v. Simpson, 43 N. H. 475; Woodworth v. Payne, 74 N. Y. 196; Page v. Palmer, 48 N. H. 385; Godberry v. Shepherd, 27 Miss. 203.) 3. Remedy for breach of condition. The counsel for appellants upon the argument claimed that the defendant was bound by the terms of the deed, in order to save the land conveyed from forfeiture, to erect thereon "a college or institution of learning free from all sectional or political influence"; and that, inasmuch as there is no law authorizing said county to apply any of the funds under its control to such a purpose, the grant was necessarily defeated. Conceding now that the words in the habendum clause of the deed created a condition subsequent, the conclusion which counsel drew from the fact, it seems to me, does not follow. In such case numerous authorities hold that if the condition is impossible to be performed, or illegal, it is void, and the grantee would take the estate freed from the condition. (Taylor v. Sutton, 15 Ga. 103; 2 Washburn on Real Property, p. 8, § 6.) But it is not now necessary to decide that question. It has thus far been assumed that equity had jurisdiction in this case. This assumption has been allowed only at the request of counsel mutually made upon the argument; but the remedy of the plaintiffs was at law upon their theory of the case. If condition subsequent be broken, the party entitled may re-enter, and if necessary have an action to regain his estate, but equity would not entertain jurisdiction for such purposes. The other matters pleaded in the complaint, whereby it is sought to present a case of equitable Petition for Rehearing-Strahan, J. cognizance, are wholly insufficient for that purpose, and do not require special notice. Let the decree appealed from be affirmed. On petition for rehearing. STRAHAN, J.-Appellants' counsel have filed a petition for a rehearing in which it is insisted that the land in controversy was granted for educational purposes and for none other. This is conceded; the deed expresses that upon its face; but it is nowhere alleged that it is being used for any other purpose, and if it were being so used it is probable that the heirs of the grantor have such an interest that they might restrain such unauthorized use of the thing granted. But of this they do not complain. It is the non-user for which they demand a forfeiture. The deed does not fix any time when the land granted must be so used, nor is the estate limited as to the time when its use shall begin. The grantors, when they made the deed, were chargeable with full notice of all the powers and authority of Umatilla County under the statute. Not having annexed any conditions to the grant at the time it was made, the court ought not to undertake to supply them by implication. It is also urged by counsel for appellants, with much apparent confidence, that this trust is void because those who may be its beneficiaries are uncertain or unknown. But this does not belong to that class of trusts where it is necessary they should be known. It is the use to which the property is to be applied and not the persons benefited which the law regards in such case. In other words, it is a trust for charitable uses. (2 Perry on Trusts, § 700.) “If in a gift for private benefit, the cestuis que trust are so uncertain that they cannot be identified, or cannot come into court and claim the benefit conferred upon them, the gift will fail, and revert to the donor, his heirs or legal representatives. But if a gift is made for a public charitable purpose, it is immaterial that the trustee is uncertain or incapable of taking, or that the objects of the charity are uncertain or indefinite. Indeed, it is said that vagueness is in some respects essential to a good gift for a public charity, and that a public charity begins where uncertainty in the recip |