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OF ESTATES UPON CONDITION.
Estates upon condition are such as have a qualification annexed to them, by which they may, upon the happening of a particular event, be created, or enlarged, or destroyed. They are divided by Littleton into estates upon condition implied or in law, and estates upon condition express or in deed.
(1.) Of conditions in law.
Estates upon condition in law are such as have a condition impliedly annexed to them, without any condition being specified in the deed or will. If the tenant for life or years aliened his land by feoffment, this act was, at common law, as we have already seen, an implied forfeiture of the estate, being a fraudulent attempt to create a greater estate than the tenant was entitled to, and the reversioner might have entered, as for a breach of the condition in law. Those estates were likewise subject to forfeiture, not only for waste, but for any other act which, in the eye of the law, tended to defeat or devest the estate in reversion, or pluck the seignory out of the hands of the lord. It was a tacit
a Co. Litt. 201. a.
e Glanv. lib. 9. ch. 1. Fleta, lib. 3. ch. 16. Wright on Tenures, 203.
condition annexed to every tenancy, that the tenant should not do any act to the prejudice of the reversion.
The doctrine of estates upon condition, in law, is of feudal extraction, and resulted from the obligations arising out of the feudal relation. The rents and services of the feudatory were considered as conditions annexed to his fief, and strictly construed. If the vassal was in default by the non-payment of rent, or non-performance of any feudal duty or service, the lord might resume the fief, and the rents and services were implied conditions inseparable from the estate. The remedy for breach of the condition was confined to the resumption of the estate by the donor and his heirs ; and that resumption was required by the just interposition of the law, to be by judicial process. The obligation of fidelity resulting from the feudal solemnity of homage was mutual, and if the lord neglected to protect his feudatory according to his estate, he was liable to be condemned to lose his seignory, as well as the tenant, for default on his part, to forfeit his freehold. At common law, a condition annexed to real estate could not be reserved to any one except the grantor and his heirs ; (and the heir might enter for a condition broken, though not expressly named,') and no other person could take advantage of a condition that required a re-entry to revest the estate. The grantor had no devisable interest by means of the condition, until he had restored his estate by entry, or by action, though he might extinguish his right by feoffment or fine to a stranger, or by a release to the person who had the estate subject to the condition. The assignee of the reversion could not enter for a condition broken, and for this purpose he was considered a mere stranger. The statute of 32 Hen. VIII. c. 34. altered the common law in
a Wright on Tenures, p. 196–199. Butler's note 84. to lib. 3. Co. Litt.
0 Fleta, lib. 3. ch. 16. sec. 9. 15. 25.
c This ancient rule is noticed in the very modern case of Jackson v. Topping, 1 Wendell, 388.
d Litt. sec. 347, 348. Co. Litl. 215. a.
this respect, so far as to enable assignees of reversions to particular estates, to which conditions were annexed, to take advantage of the conditions; and it gave to the tenant tye like remedies against the assignee, that he would have had against the assignor. This statute has been formally re-enacted in some of these United States; and though the statute was made for the special purpose of relieving the king, and his grantees, under the numerous forfeitures and grants of estates that had belonged to monasteries and other religious houses, yet the provision is so reasonable and just, that it has doubtless been generally assumed and adopted as part of our American law. In the exposition of the statute it has been held, that the grantee of part of the reversion could not take advantage of the condition, and it is destroyed by such a grant. The provision is confined to such conditions as are incident to the reversion, or for the benefit of the estate.b
(2.) Of conditions in deedom *These conditions are expressly mentioned in the contract between the parties, as if a man (to use the case put by Littleton) enfeoffs another in fee, reserving to himself and his heirs a yearly rent, with an express condition annexed, that if the rent be unpaid the feoffor and his heirs may enter and hold the lands free of the feoffment. So, if a grant be to A. in fee, with a proviso, that if he did not pay twenty pounds by such a day, the estate should be void. It is usual, in the grant, to reserve, in express terms, to the grantor and his heirs, a right of entry for breach of the condition; but the grantor or his heirs may enter and take advantage of the breach by ejectment, though there be no clause of entry.d
a Laws of N. Y. sess. 11. ch. 7. and N. Y. Revised Statutes, vol. i. 747. sec. 23, 24., and by Act of Virginia, November 29, 1792.
6 Co. Litt. 215. a. b. c Litt. sec. 325.
d Lord Hardwicke, in Wigg v. Wigg, 1 Atk. 383. Doe v. Watt, 1 Mann. & Ryl. 694.
A condition in deed is either general or special. The former puts an end altogether to the tenancy on entry for the breach of the condition ; but the latter only authorizes the reversioner to enter on the land, and take the profits to his own use, and hold the land by way of pledge until the condition be fulfilled. The stipulations in the form of a condition are various, and may be of any kind consistent with the general rules of law, as that the tenant pay a rent yearly or quarterly, or enfeoff B., or do a specified service for A., or sow the land with some particular grain, or do not assign or underlet without license, or do not marry a particular person." : These conditions are also either precedent or subsequent; and as there are no technical words to distinguish them, it follows, that whether they be the one or the other, is matter of construction, and depends upon the intention of the party creating the estate. A precedent condition is one which must take place before the estate
o pest, or toe enlarged; orir a Tease be made to B. for a year, to commence from the first day of May thereafter, upon condition that B. paid a certain sum of money within the time; or if an estate for life be limited to A. upon his marriage with B.; here the payment of the money in the one case, and the marriage in the other, are precedent conditions, and until the condition be performed, the estate cannot be claimed, or vest.d Precedent conditions must be literally performed and even a court of chancery will never vest an estate, when, by reason of a condition precedent, it will not vest in law.e
Subsequent conditions are those which operate upon
a Litt. sec. 325. 327. Co. Litt. 203. a. Shep. Touch. 157. 6 Co. Litt. 206, 207. Shep. Touch. by Preston, vol. i. 128—130.
c Ashhurst, J. in 1 Term Rep. 695. Lord Eldon, in 2 Bos. & Pull. 295. Heath, J. ibid. 297.
d 2 Blacks. Com. 154.
estates already created and vested, and render them liable Jo be defeated. Of this kind are most of the estates upon condition in law, and which are liable to be defeated on breach of the condition, as on failure of payment of the rent, or performance of other services annexed to the estate. So long as these estates upon subsequent condition continue unbroken, they remain in the same situation as if no such qualification had been annexed. The persons who have an estate of freehold subject to a condition are seised, and may convey, or devise the same, or transmit the inheritance to their heirs, though the estate will continue defeasible until the condition be performed, or de stroyed, or released, or barred by the statute of limitatiohs, or by éstoppel. A devise of lands to a town for a schoolhouse, provided it be built within one hundred rods of the place where the meeting-house stands, was held to be valid as a condition subsequent, and the vested estate would be forfeited, and go over to the residuary devisee as a contingent interest, on non-compliance in a reasonable time with the condition. Though an estate be conveyed, it passes to the grantee subject to the condition, and laches are chargeable upon the grantee, even though such grantee, or his assignee, be an infant or feme covert, for non-performance of a condition annexed to the estate. It is a general e principle of law, that he who enters for a condition broken,
becomes seised of his first estate, and he avoids, of course, all intermediate charges and incumbrances.
d ows 10 If the condition subsequent be followed by a limitation over to a third person, in case the condition be not fulfilled, or there be a breach of it, that is termed a conditional limitation. Words of limitation mark the period which is to
a 2 Blacks. Com. 156. Preston on Abstracts of Title, vol. ii. 185. 6 Hayden v. Stoughton, 5 Pick. Rep. 528. c Co. Litl. 246. b. d Perkins, sec. 840. Sh. Touch. by Preston, vol. i. 121. 155.
e Pells v. Brown, 2 Cro. 591. Holt, Ch. J., Page v. Hayward, 11 Mod. Rep. 61. Lord Hardwicke, in Wigg v. Wigg, 1 AIK 383. 2 Blacks. Com. 155.