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Estates upon condition.

CHAPTER THE TWELFTH.

OF ESTATES UPON CONDITION.

BESIDES the several divisions of estates, in point of interest, which we have considered in the four preceding chapters, there is also another species still remaining, which is called an estate upon condition: being such whose existence depends upon the happening or not happening of some uncertain event, whereby the estate may be either originally created, or enlarged, or finally defeated. And these conditional estates I have chosen to reserve till last, because they are indeed more properly qualifications of other estates, than a distinct species of themselves; seeing that any quantity of interest, a fee, a freehold, or a term of years, may depend upon these provisional restrictions. Estates then upon condition, thus Of two sorts. understood, are of two sorts: I. Estates upon condition implied: II. Estates upon condition expressed: under which last may be included, III. Estates held in vadio, gage, or pledge: IV. Estates by statute merchant or statute staple: V. Estates held by elegit.

Estates upon

condition implied.

I. Estates upon condition implied in law, are where a grant of an estate has a condition annexed to it inseparably, from its essence and constitution, although no condition be expressed in words. As if a grant be made to a man of an office, generally, without adding other words; the law tacitly annexes hereto a secret condition, that the grantee shall duly execute his office," on breach of which [153] condition it is lawful for the grantor, or his heirs, to oust him, and grant it to another person. For an office, either public or private, may be forfeited by mis-user or non-user, both of which are breaches of this implied con

non-user.

dition. 1. By mis-user, or abuse; as if a judge takes a [ 153 ] bribe, or a park-keeper kills deer without authority. 2. By Mis-user,and non-user, or neglect ;, which in public offices, that concern the administration of justice, or the commonwealth, is of itself a direct and immediate cause of forfeiture: but nonuser of a private office is no cause of forfeiture, unless some special damage is proved to be occasioned thereby.d For in the one case delay must necessarily be occasioned in the affairs of the public, which require a constant attention but private offices not requiring so regular and unremitted a service, the temporary neglect of them is not necessarily productive of mischief: upon which account some special loss must be proved, in order to vacate these. Franchises also, being regal privileges in the hands of a subject, are held to be granted on the same condition of making a proper use of them; and therefore they may be lost and forfeited, like offices, either by abuse or by neglect.

of forfeiture

felony now

to the offend

Upon the same principle proceed all the forfeitures The doctrine which are given by law of life estates and others; for any of estates. acts done by the tenant himself, that are incompatible with the estate which he holds. As if tenants for life or years enfeoff a stranger in fee simple; this is, by the common law, a forfeiture of their several estates; being a breach of the condition which the law annexes thereto, viz. that they shall not attempt to create a greater estate than they themselves are entitled to. So if any tenant Attainder on for years, for life, or in fee, committed felony, the king, only extends in the first instance, and the king or other lord of the fee er himself. in the others, is entitled to have their lands, because their estate was determined by the breach of the condition "that they should not commit felony," which the law tacitly annexed to every feudal donation; but this will now only be to the prejudice of the offender himself; for, first, it was enacted by the 54 Geo. 3, c. 145, that after the passing of that act, no attainder for felony, except in cases of high treason, petit treason or murder, should extend to the disinheriting of any heir, or to the prejudice of any other person than the offender during his natural

d Co. Litt. 233.

e 9 Rep. 50.

f Co. Litt. 215. In some copyhold estates this may be done by the custom.

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on condition

life; and still more recently, it was enacted by the 3 & 4 W. IV., c. 106, s. 13, that after the death of any person attainted, his descendants may inherit.

II. An estate on condition expressed in the grant itself, II. Estates is where an estate is granted, either in fee-simple or expressed, otherwise, with an express qualification annexed, whereby be either pre- the estate granted shall either commence, be enlarged, or subsequent. be defeated, upon performance or breach of such qualifi

which may

cedent or

cation or condition." These conditions are therefore
either precedent or subsequent. Precedent are such as
must happen or be performed before the estate can vest or
be enlarged subsequent are such, by the failure or non-
performance of which an estate already vested may be
defeated. Thus, if an estate for life be limited to A. upon
his marriage with B., the marriage is a precedent condi-
tion, and till that happens no estate' is vested in A. Or,
if a man grant to his lessee for years, that upon payment
of a hundred marks within the term, he shall have the fee,
this also is a condition precedent, and the fee-simple
passeth not till the hundred marks be paid. But if a man
grant an estate in fee-simple, reserving to himself and
his heirs a certain rent; and that, if such rent be not paid
at the times limited, it shall be lawful for him and his
heirs to re-enter, and avoid the estate in this case the
grantee and his heirs have an estate upon condition sub-
sequent, which is defeasible if the condition be not strictly
performed. To this class may also be referred all base
fees, and fees simple, conditional at the common law."
Thus an estate to a man and his heirs, tenants of the
manor of Dale, is an estate on condition that he and his
heirs continue tenants of that manor.
And so if a per-

sonal annuity be granted at this day to a man and the
heirs of his body; as this is no tenement within the
statute of Westminster the Second, it remains, as at
common law, a fee-simple on condition that the grantee
has heirs of his body. Upon the same principle depend
all the determinable estates of freehold, which we men-
tioned in the ninth chapter: as durante viduitate, &c.:

8 And see post, chap. 17.

h Co. Litt. 201 a.

Show. Parl. Cas. 83, &c.

k Co. Litt. 217 b.

Litt. s. 325.

m See ante, p. 127-129.

these are estates upon condition that the grantees do not marry, and the like. And, on the breach of any of these [155] subsequent conditions, by the failure of these contingencies; by the grantee's not continuing tenant of the manor of Dale, by not having heirs of his body, or by not continuing sole; the estates which were respectively vested in each grantee are wholly determined and void.

between con

deed and a

A distinction is however made between a condition in Distinction deed and a limitation, which Littleton" denominates also dition in a condition in law. For when an estate is so expressly limitation. confined and limited by the words of the creation that it cannot endure for any longer time than till the contingency happens upon which the estate is to fall, this is denominated a limitation: as when land is granted to a man, so long as he is parson of Dale, or while he continues unmarried, or until out of the rents and profits he shall have made 500l. and the like. In such case the estate determines as soon as the contingency happens, (when he ceases to be parson, marries a wife, or has received the 5007.) and the next subsequent estate, which depends upon such determination, becomes immediately vested, without any act to be done by him who is next in expectancy. But when an estate is, strictly speaking, upon condition in deed (as if granted expressly upon condition to be void upon the payment of 401. by the grantor, or so that the grantee continues unmarried, or provided he goes to York, &c.,) the law permits it to endure beyond the time when such contingency happens, unless the grantor or his heirs or assigns take advantage of the breach of the condition, and make an entry in order to avoid the estate. Yet, though strict words of condition be used in the creation of the estate, if on a breach of the condition the estate be limited over to a third person, and does not immediately revert to the grantor or his representatives, (as if an estate be granted by A. to B., on condition that within two years B. intermarry with C., and on failure thereof then to D. and his heirs) this the law

n Sec. 380; Co. Litt. 234. 。 10 Rep. 41.

P Ibid. 42.

a Litt. s. 347; stat. 32 Hen. 8,

c. 34.

[156] construes to be a limitation and not a condition: because, if it were a condition, then, upon the breach thereof, only A. or his representatives could avoid the estate by entry; but, when it is a limitation, the estate of B. determines, and that of D. commences, and he may enter on the lands the instant that the failure happens. So also, if a man by his will devise land to his heir at law, on condition that he pays a sum of money, and for non-payment devises it over, this shall be considered as a limitation; otherwise no advantage could be taken of the non-payment, for none but the heir himself could have entered for a breach of condition.s

limitation:

of.

Conditional A conditional limitation, to which we may here shortly advert, partakes of the nature both of a condition and a Description remainder. It is to be observed that at the common law, whenever either the whole fee or a particular estate, as an estate for life or in tail, was first limited, no condition or other quality could be annexed to this prior estate, which would have the double effect of defeating the estate and passing the land to a stranger, for as a remainder it was void, being an abridgment or defeasance of the estate first granted; and as a condition it was void, as no one but the donor or his heirs could take advantage of a condition broken; and the entry of the donor or his heirs unavoidably defeated the livery upon which the remainder depended. On these principles, it was impossible by the old law to limit by deed, if not by will, an estate to a stranger upon any event which might abridge or determine an estate previously limited. But the expediency of such limitations, assisted by the revolution effected by the Statute of Uses, which has already been adverted to,' at length established them, in spite of the maxim of law that a stranger cannot take advantage of a condition. These limitations have now become frequent, and their mixed nature has given them the name of conditional limitations; they so far partake of the nature of conditions, as they abridge or defeat the estates previously limited, and they are so far limitations, as upon the contingency taking effect, the estate passes to a stranger. Such is the limiSee ante, p. 116.

1 Ventr. 202.

Cro. Eliz. 205; 1 Roll. Abr. 411.