Tbe North Carolina Railroad Company, by virtue of tbe last clause of tbe quoted stipulation in tbe Eonville deed, bad a mere possibility of reverter. Tbe reverter will not take place unless there is a violation of tbe restrictions, named as to tbe use of tbe granted premises. Tbe provision plainly shows tbat tbe reverter can only operate to revest tbe title in tbe North Carolina Railroad Company and not in tbe plaintiffs or others similarly interested under deeds with tbe same provisions.
This bare possibility of a reverter under a condition subsequent is not assignable at common law. Tbe same rule now prevails in this State. Helms v. Helms, 137 N. C., 206; Ruch v. Rode Island, 97 U. S., 693; Nicoll v. R. R., 12 N. Y., 121; Mordecai’s Law Lectures, 559. A mere possibility of reverter was not included in 32 Henry VIII, but this statute applied to a reversion which was an estate in land. This bare possibility may not be devised or conveyed, but may be released. Church v. Young, 130 N. C., 8; Hollowell v. Manly, 179 N. C., 262, 265; Helms v. Helms, supra; Blue v. Wilmington, 186 N. C., 321, 324. Such provisions providing for a forfeiture upon breach of condition subsequent create a determinable fee. Many courts, since tbe passage of tbe statute of Quia Emptores, question tbe possibility of such an estate, for tbat tbe whole fee is granted and there is no estate in reversion left in tbe grantor, and, therefore, nothing to support tbe right of reverter. Tiffany on Real Property, 336; Gray on Perpetuities, 774, 778; Collier v. Walters, 17 L. R. Eq., 252. However, tbe majority of tbe earlier writers on real property and many states in *353this country, including North Carolina, have frequently recognized its existence. Tiffany on Real Property, 337; Burlington & C. R. Co. v. Colorado R. Co., 38 Col., 95; Loomis v. Heublien, 91 Conn., 146; Gibson v. Hardaway, 68 Ca., 370; Friedman v. Steiner, 107 Ill., 125; Aldred v. Sylvester, 184 Ind., 542; Ry. Co. v. Des Moines (Iowa), 159 N. W., 450; Pond v. Douglas, 106 Me., 85; Reed v. Stouffer, 56 Md., 236; First Universalist Soc. v. Boland, 155 Mass., 171; Board of Cumberland Co. v. Buck, 79 N. J. Eq., 472; Leonard v. Burr, 18 N. Y., 96; Siegel v. Lauer, 148 Pa. St., 236; Halifax Congregational Soc. v. Stark, 34 Vt., 243; Gray on Perpetuities, paragraphs 31-40; Hall v. Turner, 110 N. C., 292; 3 Blackstone, 192. Hence, this possibility of reverter to the defendant upon breach of the condition subsequent exists only for defendant’s benefit, and it has the full right and power to release or to estop itself from asserting the reverter. An instrument of writing under seal is an appropriate method to effect a release or to create such an estoppel, which is commonly called a waiver. Huntley v. McBrayer, 172 N. C., 642; Harwood v. Shoe, 141 N. C., 161; Ruch v. Rock Island, supra; Sharon Iron Co. v. City of Erie, 41 Pa. St., 341; Ludlow v. Ry., 12 Barbour, 440; Hubbard v. Hubbard, 97 Mass., 188; Chalker v. Chalker, 1 Conn., 79; Judd v. Robinson, 41 Colo., 222; Tiffany on Real Prop., (2 ed.), 295; Richburg v. Bartley, 44 N. C., 418; Brittain v. Taylor, 168 N. C., 271; Stamper v. Stamper, 121 N. C., 251.
If, however, the clause in the Eonville deed, which is affected by the deed of release to Qualls, is a restrictive covenant coupled with a condition subsequent, and if the plaintiffs, or other landowners, have acquired an interest in the performance of the restrictive covenants in the Eonville deed, then the release, on the part of the defendant, does not disturb the plaintiffs and does not impair their right to injunctive relief against adjoining landowners to prevent or restrain a breach of these covenants. Bohm v. Silberstein (Mich.), 189 N. W., 899; Muller v. Weiss, 108 Atl., 768, affirmed in the Court of Appeals, 109 Atl., 357; Goulding v. Phinney, 125 N. E., 703; Baker v. Lunde, 114 Atl., 673.
We are of opinion, and so hold, that the release by defendant to Qualls does not affect the provision in the Eonville deed, further than a release of the possibility of reverter may affect it, and since the plaintiffs have no legal interest in this reverter, they cannot maintain this action; and the court below was right in sustaining the demurrer. Whatever may be the plaintiff’s rights in equity to restrain the commission of the acts mentioned in the Eonville deed is not now before us, and, therefore, not decided.
The judgment appealed from is