(— N. C. —, 127 S. E. 349.) clerk approved the bond tendered or im on the ground that it is void by reason of the failure of the principal to sign it. 3. Lastly, appellants contend that the bail bond is void, for the reason that the sureties, R. M. Spencer and R. W. Wilkerson, signed the same upon a conditional agreement with the principal, assented to by the sheriff, as found by the judge, and that appellant W. J. Pettigrew signed in reliance upon the validity of these signatures. Appellants contend that, as the conditions were not complied with by the principal, neither of them is liable. It is clear that no conditional agreement between the principal and his sureties, who signed the bond, affecting their liability, can be a defense for the sureties, unless the obligee in the bond had notice of such agreement. The obligee in the bond is the state of North Carolina. The terms and conditions of the bond were fixed by the court, and could not be changed or altered except by the court. Notice to the -agreement by sheriff as to sheriff of the agree ment as found by number of sure- the judge was not notice to the obligee ties-effect. or to the court. The sheriff was not the agent of the court, and had no duty to perform with respect to the bond. It was his duty to hold the prisoner in custody until the order of the court had been complied with as to bail. There is no finding that the clerk had notice of the conditional agreement. The only duty imposed upon the clerk with respect to the bond was to approve it as to form and as to sufficiency of sureties. His authority extended no further than necessary for the performance of this duty. If appellants contend that notice to the clerk was notice to the court, and therefore to the obligee, then it was inevidence that the clerk had notice of cumbent upon appellants to offer the agreement, or at least of sufficient facts to put him on inquiry. There is no finding by the court as to whether or not the clerk had notice either of the agreement or of facts sufficient to put him on inquiry. Nor is there any exception that the court failed to find that the clerk had notice. Where the judge has, by an order made in open court, fixed and determined all the essential elements of a bail bond,-the amount, the conditions, and the number of sureties, and whether or not they shall justify, he may provide that the bond may be filed during recess or after the adjournment of court, provided it is approved, as to form and as to sufficiency of sureties, by one or more justices of the peace, named by him, in the order [State v. Edney, 60 N. C. (2 Winst. L.)], or by the sheriff or any other person named by him (State v. Houston, 74 N. C. 549; State v. Jones, 88 N. C. 684; State v. Jones, 100 N. C. 439, 6 S. E. 655). The officer or person whose approval is required before the authority as to acceptance of the bond has no duty or authority with respect to the bond except by the order. that imposed or conferred on him No notice to such officer or person of any facts, with respect to the execution of the bond, which do not appear upon its face, will support a defense to a sci. fa. issued for the enforcement of the bond. When the bond has been ap approving bond. proved as required by the court, ac- The contentions of appellants as As to whether the facts found by the judge, now appearing in the record, entitle appellants to relief, in whole or in part, from the judgment rendered by his Honor, and now affirmed by us, in accordance with the law applicable to these facts, is not presented to this court. A petition for such relief may be presented to the judge of the superior court, presiding at some ensuing term of court for Person county under Consol. Stat. § 4588, notwithstanding that a final judgment has been rendered. Although appellants Wilkerson and Pettigrew may be held to have waived a favorable consideration of the facts upon which such relief may be sought by their conduct in the presence of the clerk, it would seem that appellant R. M. Spencer, who was not present when the bond was delivered to the clerk and had no notice until the next day that the prisoner had been discharged, would receive such consideration. There is no error in this record, of law or legal inference, and we must so hold. The judgment is affirmed. ANNOTATION. Necessity of acknowledgment of bail bond in open court. The view taken in the reported case (STATE V. BRADS HER, ante, 1102) that acknowledgment in open court, which is an indispensable requisite of a technical recognizance, may be dispensed with in the case of a bail bond, and that the bond may be effective as a recognizance, notwithstanding its not having been so acknowledged, is indirectly supported by other cases. Thus, in affirming a judgment on a forfeited bail bond, which was not acknowledged by either the principal or his surety, but was signed by the former in the judge's presence after the surety had signed it elsewhere, the court in State v. Wilson (1915) 265 Mo. 1, 175 S. W. 603, distinguished between such a bond and a recognizance, and declared, as to the bail bond: "It may be taken in court or out of court in vacation. An acknowledgment does not add to its effectiveness, and there is nothing in its nature or terms which requires that it should be signed in the presence of the court, or officer who takes same, to render it valid." In holding that a lien was not created by a bail bond, the court stated in Cole v. Warner (1893) 93 Tenn. 155, 23 S. W. 110, that the bond is taken out of court, in vacation. In Wilson v. Com. (1896) 99 Ky. 167, 35 S. W. 274, where a court had, dur ing term time, fixed an amount of bail, the action of the clerk in taking a bond during a subsequent term was held to be authorized. Under an early Kentucky statute, a sheriff or jailer could take a bond. Jones v. Bunn (1859) 2 Met. (Ky.) 490. In State v. Krohne (1893) 4 Wyo. 347, 34 Pac. 3, it was held that a clerk of court was authorized to take a bail bond during the court's vacation. But see, to the contrary, State v. Carothers (1860) 11 Iowa, 273. As to statutory requirement of a recognizance to be taken in open court being not satisfied by the giving of an appeal bond after the court's adjournment, see Herron v. State (1863) 27 Tex. 337; Jones v. State (1877) 1 Tex. App. 485; Arnold v. State (1878) 3 Tex. App. 437; Terry v. State (1912) 64 Tex. Crim. Rep. 497, 142 S. W. 875; Saye v. State (1912) 66 Tex. Crim. Rep. 257, 145 S. W. 1189; Craig v. State (1912) 66 Tex. Crim. Rep. 433, 147 S. W. 251; Hamilton v. State (1912) 68 Tex. Crim. Rep. 47, 150 S. W. 775; French v. State (1913) 69 Tex. Crim. Rep. 316, 153 S. W. 858; Williams v. State (1918) 84 Tex. Crim. Rep. 255, 206 S. W. 684. As to the constitutional right to bail pending an appeal from a conviction, see annotation in 19 A.L.R. 807. E. W. H. 1 Deeds, § 93 conveyance by one having possibility of reverter. 1. A second conveyance with warranty of title by a grantor, to one to whom he has previously granted a defeasible fee with possibility of reverter, vests the fee simple in the grantee. [See note on this question beginning on page 1111.] Deeds, § 95 proviso limiting con effect. 2. A proviso following the habendum and warranty clauses in a deed conveying a parcel of real estate, that the land shall revert to the grantor in case the grantee dies without children, limits the conveyance to a defeasible fee, subject to be defeated by the grantee's death at any time without children. [See 10 R. C. L. 652.] APPEAL by defendants from a judgment of the Circuit Court for Webster County sustaining a demurrer to their counterclaim in an action brought to enforce collection of certain purchase-money lien notes. Affirmed. The facts are stated in the opinion of the court. Messrs. Rayburn & Withers for appellants. Mr. C. W. Bennett for appellees. Sandidge, J., delivered the opinion of the court: For On September 20, 1922, appellees Arizona Lynn and her husband, Carl Lynn, conveyed to appellant Otto Brill three tracts of land. part of the purchase price Brill gave them purchase-money lien notes to the amount of $4,000. The notes were not paid at maturity, and appellees sued to enforce their collection under the lien. Appellees were and are nonresidents of the state of Kentucky. Making his answer a counterclaim, Brill defended, claiming that the title of one of the tracts of land was defective, and suing for the breach of the covenant of warranty. The chancellor sustained a demurrer to the counterclaim, construing the deeds questioned to have passed the fee-simple title of the tract of land in question, and that by his deed appellant took the fee in the land. The appeal has been prosecuted, and the deeds in question are before us for construction. It appears that by deed dated March 16, 1899, Squire Mooney and Amanda Mooney, his wife, conveyed the tract of land, the title of which is questioned, to appellee Arizona Lynn. By the caption of the deed, Squire Mooney and Amanda Mooney, his wife, are named as parties of the first part, and Arizona Lynn as party of the second part. The granting clause reads: "Have granted and given, and by these presents do give, grant, alien and convey unto the said party of the second part." The habendum and warranty clause reads: "To have and to hold the same, together with its appurtenances unto the said party of the second part, her heirs and assigns forever, with covenant of general warranty." Immediately following that, there appears in the deed this language: "Provided, however, that in case the said party of the second part dies without children, then in that case the said land above described is to revert back to the party of the first part or their heirs." Without going into an elaborate discussion of the question, upon authority of the latest utterance of this court pertaining to it, as appears in Kimbrell v. Parmer, decided April 18, 1924, 202 Ky. 686, 261 S. W. 11, and the cases therein cited, we hold that by the foregoing deed appellee Arizona Lynn took a defeasible fee in the tract of land there Deeds-proviso limiting con veyance-effect. by conveyed to her, subject to be defeated upon her dying at any time without children. The entire estate passed from the grantors to her. By the deed there was created a possibility of reverter, by which, in the event the grantee should eventually die without children, the land thereby granted thereupon would revert to Squire Mooney, the grantor, if he should then be living, or to the then heirs of himself and his wife, if he should then be dead. But for the fact that subsequently the grantor in the foregoing deed made another conveyance of the same tract of land to the same grantee, unquestionably the judgment of the chancellor would be erroneous, and the judgment should be reversed. We find, however, that on April 16, 1908, the same Squire Mooney named in the caption as "party of the first part" conveyed to the same Arizona Lynn and Carl Lynn, as parties of the second part, the same tract of land. The granting clause in the second deed reads, "The said party of the first part does hereby grant, bargain, sell, and convey to the said party of the second part, Arizona Lynn and Carl Lynn, and their bodily heirs;" while the habendum clause reads, "To have and to hold the same, with all the appurtenances thereon, to the said second party, their heirs and assigns forever, with covenant of general warranty." The terms of the foregoing deed, when construed in the light of § 2343, Kentucky Statutes, unquestionably conveyed the fee-simple title of the tract of land in question to appellees Arizona Lynn and Carl Lynn. We are confronted, however, with appellants' contention that, as the grantor in the last deed had previously conveyed to the grantee all of his estate in the tract of land in question, the second conveyance was of no effect, and did not serve to convert the previous defeasible fee conveyed to appellees into a fee-simple title. Appellants contend that a mere possibility of reverter is not an estate in real estate which may be the subject of conveyance, and that its attempted conveyance is of no value. With reference to possibility of reverter, 21 C. J. § 180, p. 1018, enunciates the following general rule: "A possibility of reverter is, at common law, not an estate; it is inalienable, not assignable, not devisable, unless made so by statute; but it is descendible, and may be released to him in possession." On the subject, in 23 R. C. L. § 9, p. 1104, it is written: "Where land is conveyed on a condition subsequent, the right of reverter in the grantor on breach of the condition is not assignable, and, on breach of the condition, it reverts to the grantor or his heirs, and not to his assignees. No other person than the grantor or his heirs can take advantage of a condition which requires a re-entry in order to revest the former estate. The reason why a conveyance of land by one who has previously conveyed on a condition subsequent passes no title to the grantee is that by the first conveyance the whole estate went out of the grantor therein. He had nothing left to convey. It is true that there is a possibility that sometime the title may 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 on which his conveyance to a stranger can operate. It has been held that while he who would be entitled to an estate, if the fee conditional should presently determine, cannot devise or convey it, yet he may release it to the tenant in (— Ky. —, 270 S. W. 20.) fee conditional, so as to make his estate an absolute fee simple." Our investigation of the question has led to the interesting discovery that while the courts of this country uniformly have held that the mere possibility of reverter is not an estate, and is inalienable, they have, with equal uniformity, held that, in cases where the grantor of a defeasible fee, who, under the grant, possesses a possibility of reverter, subsequently conveys the possibility of reverter to a stranger, although the attempted conveyance is held to be ineffectual in so far as it undertakes to convey any right or interest to the grantee, it has the effect of extinguishing the grantor's possibility of reverter. One of the outstanding cases on the question is that of Wagner v. Wallowa County, 76 Or. 453, L.R.A.1916F, 303, 148 Pac. 1140. In the latter publication an interesting annotation and collation of the authorities and discussion of the various cases may be found. Since the case here presented does not possess that feature, as there was no attempted alienation to a stranger of the possibility of reverter, we will not go further into the question. While the cases seem to be few, the courts both of this country and of England seem to support the texts of Corpus Juris and Ruling Case Law, quoted above, that announce it as a principle of law that a possibility of reverter may be re leased by the grantor to the holder of the defeasible fee. The outstanding case on that question in this country seems to be that of Vaughan v. Langford, 81 S. C. 282, 128 Am. St. Rep. 912, 62 S. E. 316, 16 Ann. Cas. 91. The supporting cases, both American and English, are found cited in that opinion, and there seems to be no dissent from the doctrine. We therefore hold that, by the second convey- -conveyance by ance, Squire Moon- one having posey released unto the sibility of reverholder of the defeasible fee all possibility of reverter, and the second deed had the effect of vesting in appellees Arizona Lynn and her husband, the feesimple title to the tract of land in question. ter. The conclusion makes it unnecessary for the court to consider the effect of our statutes with reference to conveyances and the interests in lands that may be conveyed, to determine whether or not, under our statutes, the possibility of reverter is such an interest in land as may be conveyed. Having concluded that by the two deeds in question appellees became the owner of the feesimple title of the lands, their conveyance of it to appellant was valid, and he thereby likewise became the owner of the fee therein. Consequently, we hold that the Chancellor properly sustained the demurrer to appellant's answer and counterclaim, and the judgment herein is affirmed. ANNOTATION. Release of possibility of reverter. The few cases in which the point has been considered concur with the reported case (BRILL v. LYNN, ante, 1109) in holding that the possibility of reverter remaining in the grantor of a fee upon condition subsequent may be released to the tenant of the fee conditional, so as to make his estate an absolute fee simple. See McArdle v. Hurley (1918) 103 Misc. 540, 172 N. Y. Supp. 57; Huntley v. Mc Brayer (1916) 172 N. C. 642, 90 S. E. 754; Adams v. Chaplin (1833) 10 S. C. Eq. (1 Hill) 265 (obiter); Pearse v. Killian (1841) 16 S. C. Eq. (McMull.) 231; Arnold v. Scharff (1918) - Tex. Civ. App., 210 S. W. 326. It may be released by the heir of the original grantor, as well as by the grantor himself. Pearse v. Killian (1841) 16 S. C. Eq. (McMull.) 231. · So, where the person entitled to the |