determine the estate, but words of condition render the estate liable to be defeated in the e intermediate time, if the event expressed in the condition arises before the determination of the estate, or completion of the period described by the limitation. The one specifies the utmost time of continuance, and the other marks some event, which, if it takes place in the course of that time, will defeat the estate. The material distinction between a condition and a limitation consists in this, that a condition does not defeat the estate, although it be broken, until entry by the grantor or his heirs ; and when the grantor enters, he is in as of his former estate. His entry defeats the livery made on the creation of the original estate, and, consequently, all subsequent estates or remainders dependant thereon. Conditions can only be reserved for the benefit of the grantor and his heirs. A stranger cannot take advantage of the breach of them. There must be an actual entry for the breach of the condition, or there must be, in the case of non-payment of rent, an action of ejectment, brought as a substitute, provided by the statute of 4 Geo. II. c. 2. (and which was adopted in New-York in 1788, and the provision is now incorporated into the body of the new Revised Statutes,b) for the formal re-entry at common law. But it is in the nature of a limitation to determine the estate when the period of the limitation arrives, without entry or claim, and no act is requisite to vest the right in him who has the next expectant interest. To get rid of the difficulty under the old rule of law, that an estate could not be limited to a stranger upon an event which went to abridge or determine the previously limited estate, a distinction was introduced in the case of wills, between a

a Shep. Touch. by Preston, vol. i. 117. Preston on Estates, vol. i. 45. 49. 128, 129.

b N. Y. Revised Statutes, vol. ii. 505. sec. 30.

c Co. Litt. 214. b. 218. a. 10 Co. 40. b. 2 Blacks. Com. 155. Preston on Estates, vol. i. 46-48. Shep. Touch. by Preston, vol. i.

121.

condition and a conditional limitation, and which has been supposed to partake more of refinement and subtlety than of solidity. A conditional limitation is of a mixed nature, and partakes of a condition, and of a limitation; as if an estate be limited to A. for life, provided that when C. returns from Rome, it shall thenceforth remain to the use of B. in fee. It partakes of the nature of a condition, inasmuch as it defeats the estate previously limited, and it is so far a limitation, and to be distinguished from a condition, that upon the contingency taking place the estate passes to the stranger without entry, contrary to the maxim of law, that a stranger cannot take advantage of a condition broken. These conditional limitations, though not valid in the old conveyances at common law, yet, within certain limits, they are good in wills and conveyances to uses.

b

There is this further distinction to be noticed between a condition annexed to an estate for years, and one annexed to an estate of freehold, that in the former case the estate ipso

a Butler's note 99. to lib. 3. Co. Litt. Mr. Douglass, in a note to Doug. Rep. 755. thinks the distinction between a conditional limitation, and a remainder, merely verbal; but Mr. Fearne (Fearne on Re mainders, p. 10-18.) vindicates the distinction, and relies on the anthority of the case of Cogan v. Cogan, Cro. Eliz. 360. Conditional limitations which are contingent remainders, are limited to commence when the first estate is, by its original limitation, to determine; but conditional limitations which are not remainders, are so limited as to be independent of the extent and measure given to the first estate, and are to take effect upon an event which may happen before the regular determination of the first estate, and so rescind it. This is Mr. Fearne's distinction, but he is not clear and fortunate when he comes to illustrate it by examples, and they do appear to be subtly refined, and essentially verbal.

b Fearne on Remainders, p. 10. p. 391-393. 409. 410. In Lady Ann Fry's case, 1 Vent. 199. Sir Matthew Hale said, the point was too clear for argument; and that though the word condition be used, yet limiting a remainder over made it a limitation. The N. Y. Revised Statutes, vol. i. 725. sec. 27. have established and made valid these conditional limitations, whether created by deed or will, and they have thus wisely put an end to the nice and unreasonable distinction in the English books on this point.

facto ceases as soon as the condition is broken; whereas in the latter case, the breach of the condition does not cause the cesser of the estate, without an entry or claim for that purpose. It was a rule of the common law, that where an estate commenced by livery, it could not be determined before entry. When the estate has, ipso facto, ceased, by the operation of the condition, it cannot be revived without a new grant; but a voidable estate may be confirmed, and the condition dispensed with.

A collateral limitation is another refinement belonging to this abstruse subject of limited and conditional estates. It gives an interest for a specified period, but makes the right of enjoyment to depend on some collateral event, as a limitation of an estate to a man and his heirs, tenants of the manor of Dale, or to a woman during widowhood, or to C. till the return of B. from Rome, or until B. shall have paid him £20. The event marked for the determination of the estate is collateral to the time of continuance. These superadded clauses of qualification give to the estate ja determinable quality; and, as we have already seen in a former lecture, if the estate be one of inheritance, it is distinguished as a qualified, base, or determinable fee.

Pennant's case, 3 Co. 64.

a Co. Litt. 215. a. Preston on Abstracts of Title, vol. iii. 397. Mr. Preston says, that every limitation which is to vest an interest on a contingency, or upon an event which may, or may not happen, is a conditional limitation. A contingent remainder is a conditional limitation; and estates which have their operation by résulting or springing use, or by executory devise, and are to commence on an event, are all raised by conditional limitations. It is the uncertainty of the happening of the event that distinguishes an absolute limitation from a conditional limitation, or a limitation upon contingency. Though all contingent interests are executory, yet all executory interests are not contingent. Preston on Estates, vol. i. 40, 41. 63. Mr. Preston here confounds conditional and contingent limitations; but Lord Mansfield, in Buckworth v. Thirkell, 3 Bos. & Pull. 247. note. S. C. 1 Col. Jurid. 247. marked the distinction, and said there might be a limitation depending on a contingency without any condition in it.

b Lect. 53.

The estate will determine, as soon as the event arises, and At never can be revived.a

So,

Conditions subsequent are not favoured in law, and are construed strictly, because they tend to destroy estates; and the rigorous exaction of them is a species of summum jus, and in many cases hardly reconcileable with conscience. If the condition subsequent be possible at the time of making it, und becomes afterwards impossible to be complied with, either by the act of God, or of the law, or of the grantor, or if it be impossible at the time of making it, or against law, the estate of the grantee being once vested, is not thereby devested, but becomes absolute. if the condition be personal, as that the lessee shall not sell without leave, the executors of the lessee not being named, may sell without incurring a breach. A court of equity will never lend its aid to devest an estate for the breach of a condition ondition subsequent. The cases, on the contrary, are full of discussions, how far chancery can relieve against subsequent conditions. The general rule formerly was, that the court would interfere, and relieve against the breach of a condition subsequent, provided it was a case admitting of compensation in damages. But the relief, according to the modern doctrine in equity, is confined to cases where the forfeiture has been the effect of inevitable accident, and the injury is capable of compensation. In the case of Hill v. Barclay,& Lord Eldon said, relief might be granted against the breach of a condition to pay money, but not where any

74.

a Poole v. Nedham, Yelv. 149. Baldwin and Cock's case, 1 Leon. Preston on Estates, vol. i. 43, 44. 49, 50.

b Co. Litt. 205. b. 219. b. 8 Co. 90. b.

e Co. Litt. 206. a. 208. b. 2 Blacks. Com. 156. Parker, Ch. J. in Mitchel v. Reynolds, 1 P. Wms. 189. Lord Ch. J. Treby, in Cary v. Bertie, 2 Vern. 339.

d Dyer, 66. a. pl. 8. Moore, 11. pl. 40.

e Popham v. Bampfield, 1 Vern. 83.

f Rolfe v. Harris, 2 Price's Exch. Rep. 207, note. Bracebridge v. Buckley, ibid. 200.

g18 Vesey. 56.

thing else was to be done; and he insisted, that where the breach of the condition consisted of acts of commission, directly in the face of it, as by assigning a lease without license, and the law had ascertained the contract, and the rights of the parties, a court of equity could not interfere. A court of equity cannot control the lawful contracts of parties, or the law of the land.

Conditions are not sustained when they are repugnant. to the nature of the estate granted, or infringe upon the essential enjoyment and independent rights of property, and tend manifestly to public inconvenience. A condition annexed to a conveyance in fee, or by devise, that the purchaser or devisee should not alien, is unlawful and void. The restraint is admitted in leases for life or years, but it is incompatible with the absolute right appertaining to an estate in tail or in fee. If the grant be upon condition that the grantee shall not commit waste, or not take the profits, or his wife not have her dower, or the husband his curtesy, the condition is repugnant and void, for these rights are inseparable from an estate in fee. Nor could a tenant in tail, though his estate was originally intended as a perpetuity, be restrained by any proviso in the deed creating the estate, from suffering a common recovery." Such restraints were held by Lord Coke to be absurd and repugnant to reason, and to "the freedom and liberty of freemen." The maxim which he cites, contains a just and enlightened principle, worthy of the spirit of the English law in the best ages of English freedom-Iniquum est ingenuis hominibus non esse liberam rerum suarum alienationem. If, however, a restraint upon alienation be confined to an individual named, to whom the grant is not to be made, it is said by very high authority,d to be a valid condition. But this case falls within the general principle, and

a Mildway's case, 6 Co. 40. Litt. sec. 360. Co. Litt. 206. b. 223. a. Stukeley v. Butler, Hob. 168.

b Mary Portington's case, 10 Co. 42. a.

c Co. Litt. 223. a.

d Litt. sec. 361. Co. Litt. 23.