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to quit, and shall not deliver up possession at the time contained in such notice, he shall thenceforth pay double the former rent for such time as he continues in possession (b).

Estates upon condition.

CHAPTER X.

OF ESTATES UPON CONDITION.

ESTATES upon condition are such whose existence depends upon the happening or not happening of some uncertain event, Co. Litt. 201. whereby the estate may be either created, enlarged, or defeated. They are of two sorts, implied, and expressed; under which last may be included estates held in vadio, gage, or pledge: estates by statute merchant, or statute staple; and estates held by elegit.

Estates upon condition implied.

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 (a). As if a grant be made to a man of an office

(b) This statute, 4 Geo. 2, c. 28, only took effect in cases in which the landlord gave notice to quit, and therefore the deficiency was supplied by 11 Geo. 2, c. 19, which extends the provision for double rent to holding over after the tenant's giving notice to quit: see a case on this latter statute in 4 Burr. 3, p. 1603; see also 6 Anne, c. 18, s. 1, against holding over by guardians or trustees of infants, and by husbands seised in right of their wives, and by all others having particular estates determinable on any life or lives.-Co. Litt. 57 b. n. 2. Mr. Christian states (n. to Bl. Comm. v. 2, p. 150) that "the double value may be recovered though it is not mentioned in the notice to quit. (1 T. R. 53.) The notice by the landlord must be in writing, but that by the tenant, under 11 Geo. 2, c. 19, may be parol. (3 Burr. 1603.) The double value can only be recovered by action of debt; but the double rent may be recovered by distress or otherwise, like single rent. (1 Bl. 535.) No length of time is necessary to the validity of these notices under the statutes, to entitle the landlord to double value. If the tenant hold over after the expiration of his term, or after the end of the year, when he has had a proper notice to quit, the landlord may turn his cattle upon the premises, but without force; and the cattle cannot be distrained as damage feasant by the tenant." (7 T. R. 431.)

(a) The doctrine of conditions is derived to us from the feudal law. The rents and services of the feudatory are mentioned by feudal writers as conditions annexed to his fief. If he neglected to pay his rent, or perform his service, the lord might resume the fief. But the payment of rent, and the performance of feudal service, were for a long period of time the only conditions that could be annexed to a fief; and the latter, whether expressed or not, was always presumed by the law, being incident to and inseparable from the estate of the feudatory. In this sense they are called conditions in law, or implied conditions: afterwards, when other conditions were introduced, the estates

Litt. 378.

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 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 condition; non user of a private office is, however, no cause of forfeiture unless some special damage is proved; but Co. Litt. 233. in the case of a public office it is a direct and immediate cause of forfeiture. Upon the same principle proceed all the forfeitures which are given by law of life estates and others; for any 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. Ibid. 215. So forfeiture by tenant for years, for life, or in fee, follows the breach of the condition "that they shall not commit felony," which the law tacitly annexes to every feodal donation (b). An estate on condition expressed in the grant itself, is where Estates upon an estate is granted either in fee simple or otherwise, with an express qualification annexed, whereby the estate granted is either to commence, be enlarged, or defeated upon performance or breach of such qualification (c). These conditions are Co. Litt. 201. therefore either precedent or subsequent. Precedent are such

as must happen or be performed before the estate can vest or

condition ex

pressed.

to which they were annexed, were ranked among improper fiefs.-Craig de Jure Feudali, lib. 2, dieg. 4, sect. 1, 2, 3; Co. Litt. 201 a, n. 1.

(b) But see now 54 Geo. 3, c. 145, and 3 & 4 Wm. 4, c. 106, s. 10, post, book 2, cap. 18, "Of title by forfeiture."

(e) These conditions were called express, or conventionary conditions. By an application in some respects very much forced of the original principle of conditions, that on the non-performance of them, the lord might resume his fief, conditional fees at common law, and some other modifications of landed property, were introduced as estates upon condition. These are often of such a nature as to make it more natural that a stranger should have the estate on the non-performance of the condition than the donor; and that the lord, instead of being confined to his right of resumption, should have it in his power to compel the performance of the condition, or recover from the donee a compensation or satisfaction for the breach of it. But as all these estates were introduced as estates upon condition, the law, where it still considers them as conditions, and except where it has been altered by act of parliament, confines the donor's remedy to the resumption of the estate, and gives that remedy only to the donor and his heirs. -Co. Litt. 201 a, n. l.

Show. Parl.
Cas. 83, &c.

Litt. s. 325.

Litt. s. 380. 1 Inst. 234.

10 Rep. 41.

10 Rep. 42. Litt s. 347. 32 Hen. 8, c. 34.

1 Vent. 102.

be enlarged; subsequent are such by the failure on non-per-
formance 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 condition, and till that hap-
pens no estate is vested in A.
But if A. grant an estate in fee
simple, reserving to himself and his heirs a certain rent; with a
power of re-entry in case of nonpayment at the times limited;
the grantee and his heirs have an estate upon condition sub-
sequent, which is defeasible, if the condition be not performed.
To this class may be referred all base fees and fees conditional
at the common law. Thus an estate to A. and his heirs, tenants
of the manor of Dale, is an estate upon condition that he and
his heirs continue tenants of that manor. A distinction is,
however, made between a condition in deed, and a limitation
or condition in law. For when an estate is so expressly limited
by the words of its creation, that it cannot endure longer than
till the contingency happens, upon which it is to fail, this is
denominated a limitation; as when land is granted to A. while
he continues unmarried here the estate determines as soon as
the contingency happens, 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 upon condition in deed: as if granted
expressly upon condition to be void upon payment of 50%. by
the grantor, 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 either an entry or claim in order to avoid the
estate. But though strict words of condition be used in the
creation of the estate, yet, if on breach of the condition, the
estate be limited to a third person, and does not immediately
revert to the grantor or his representatives, this the law con-
strues to be a limitation and not a condition; because, if it
were a condition, then, upon the breach thereof, only the
grantor or his representatives could avoid the estate by entry,
and the remainder might be defeated (d). So if A. by his will
devise land to his heir-at-law, on condition that he pays a sum

(d) We should carefully distinguish between a condition, a remainder, and a conditional limitation. A condition defeats the whole estate; none but the donor or his heir can enter for the breach of it. A remainder is defined by Lord Coke to be " a remnant of an estate in lands or tenements, expectant on a particular estate, created together with the same, at the same time;" so that it waits for and only takes effect in possession, on

1 Roll. Abr.

of money, and for non-payment devises it over, this is a limitation; otherwise no advantage could be taken of the nonpayment, for none but the heir could have entered for a breach Cro. Eliz. 205. of the condition. In all these instances, so long as the con- 411. dition, either express or implied, in deed, or in law, remains unbroken, the grantee may have an estate of freehold, provided the estate upon which such condition is annexed be freehold; as if the grant express an estate of inheritance, or for life; or no estate at all, which is constructively an estate for life; for the breach of the conditions being uncertain, this uncertainty preserves the freehold. These express conditions, Co. Litt. 42. if they be impossible at the time of their creation, or afterwards Conditions, become impossible by the act of God, or the act of the feoffor how avoided. himself, or if they be contrary to law, or repugnant to the nature of the estate are void. In any of which cases, if they be conditions subsequent, that is, to be performed after the estate is vested, the estate becomes absolute in the tenant. As if a feoffment be made to a man in fee simple, on condition that he goes to Rome in twenty-four hours, or unless he marries with A. by such a day, within which time the woman dies, or the feoffor marries her himself, or unless he kills another; or in case he aliens in fee; then the estate to be Co. Litt. 206. vacated and determined; in either of such cases the condition is void, and the estate made absolute in the feoffee. If such a condition be precedent, or to be performed before the estate vests: here the void condition being precedent, the estate

the natural expiration or determination of the first estate. A conditional limitation partakes of the nature both of a condition and a remainder. At the common law, when 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 limited; and, as a condition, it was void, as no one but the donor or the heirs could take advantage of a condition broken, and the entry of the donor or his heirs 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 went to abridge or determine an estate previously limited. But the expediency and utility of such limitations, assisted by the revolution effected in our law by the statute of uses, at length forced them into use, in spite of the maxim that a stranger cannot take advantage of a condition. These limitations are now become frequent, and their mixed nature has given them the appellation 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 place, the estate passes to a stranger.-Co. Litt. 203 b, n. 1.

Estates held in pledge.

Co. Litt. 205.
Mortgage.

Litt. s. 232.

Of the equity of redemption in mortgages.

which depends thereon is also void, and the grantee takes nothing by the grant.

Estates held in vadio, in gage, or pledge, are of two kinds, vivum vadium, or living pledge; and mortuum vadium, dead pledge, or mortgage. Vivum vadium, or living pledge, is when a man borrows a sum of another, and grants him an estate to hold till the rents and profits shall repay the sum borrowed. This is an estate conditioned to be void as soon as such sum is raised. The land or pledge is said to be living; it subsists and survives the debt, on the discharge of which it results back to the borrower. But mortuum vadium, a dead pledge or mortgage, is where A. borrows a sum of B., and grants him an estate in fee on condition that when A. repays the sum borrowed, he may re-enter the estate, or that B. shall re-convey the estate to him. In this case the land which is put in pledge is by law, in case of non-payment at the time limited, for ever dead and gone from A.; and till then B. is called tenant in mortgage.

As soon as the estate is created, the mortgagee may enter on the lands; and therefore the usual mode is to agree that the mortgagor shall hold the land till the day assigned for payment; when, in case of failure, the estate of the mortgagee becomes absolute; but the courts of equity allow the mortgagor at any reasonable time to redeem his estate, paying to the mortgagee his principal, interest, and expenses. This advantage is called the equity of redemption. On the other hand the mortgagee may either compel the sale of the estate in order to get the whole of his money immediately; or else call upon the mortgagor to redeem his estate presently, or in default thereof, to be for ever foreclosed from redeeming the same; and in some cases of fraudulent mortgages, the fraudulent mortgagor forfeits all equity of redemption whatsoever (e).

(e) By 4 & 5 Wm. & M. c. 16, if a debtor, upon judgment, statute, or recognizance, mortgage lands thereby affected without giving notice in writing of the incumbrance, all equity of redemption becomes lost, unless such mortgagor shall, after notice in writing of such incumbrance, discharge the same within six months; and any person mortgaging the same lands more than once without notice to the subsequent mortgagees of the prior mortgage, in writing, loses all equity of redemption; but any subsequent mortgagee may redeem a former mortgage.

A mortgagor paying off mortgage money to a mortgagee, without notice of his having transferred the mortgage, is a valid payment, although the transfer of the mortgage is duly registered. Williams v. Sorrell, 4 Ves. jun. 389; 3 Sugd. V. & P. 10th ed. 370.

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