Show. Parl. 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-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 condition, and till that happens 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 subsequent, 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 construes 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. 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. 157 CHAPTER XI OF ESTATES IN POSSESSION, REMAINDER, AND REVERSION. Of estates in mainder, and possession, re ESTATES, with regard to the time of their enjoyment, are either All the estates before treated of are estates in possession, or Estates in estates executed; these are distinguished from estates executory possession. in this, that by the former, a present interest passes to and resides in the tenant; whilst the latter depend on subsequent circumstances or contingencies. An estate in remainder is an estate limited to take effect, Estate in reand be enjoyed after another estate is determined (a). As if mainder. a man seised in fee simple grants lands to A. for twenty years, and after the determination of the said term, then to B. and his heirs for ever: here A. is tenant for years, remainder to B. in fee. An estate for years is created or carved out of the fee and given to A.; and the remainder of it is given to B. Yet both these interests are in fact only one estate; the term of years, and the remainder when added together, being equal only to one estate in fee. The remainder the time of the Co. Litt. 143. Rules to be ob- creation of re There are three rules laid down by law to be observed in the creation of remainders. There must be some particular estate, precedent to the estate in remainder. must commence or pass out of the grantor at creation of the particular estate. grantee during the continuance of the particular estate, or eo instanti that it determines (b). There must necessarily be 1 Rep. 66. And it must vest in the Plowd. 25. Litt. s. 671. Plowd. 25. (a) A remainder is a residue of an estate in land, depending upon a particular estate, and created together with the same, and in law Latin it is called remanere.—Co. Litt. 49 a. (b) Formerly the doctrine of the necessity that the remainder should vest at the very instant of the determination of the particular estate, at farthest, was extended to the case of a posthumous son; but by 10 Wm. 3, c. 16, where any estate is, by marriage, or any other settlement, settled in remainder to children, with remainders over, any posthumous child may take in the same manner as if born in the father's life-time; and see the case of Reeve v. Long, 1 Salk. 227; Co. Litt. 298 a, n. 3. An estate of freehold can not be created to commence in futuro. Co. Litt. 19. lar estate must be created to support it. some particular estate to support the remainder. As an estate An estate created to commence at a distant period of time, without any intervening estate, is properly no remainder. Such an estate can only be made of chattel interests; but an estate of freehold must be created to commence immediately; for it is an ancient rule of the common law, that an estate cannot be created to commence in futuro; but it ought to take effect presently, either in possession or remainder; because, at common law, no freehold lands could pass without livery of seisin, which must operate either immediately or not at all. Therefore, though a lease to A. to commence from next Michaelmas is good, yet a conveyance to B. of lands to hold to him and his heirs for ever, from the end of three years But a particu- next ensuing, is void. So that when it is intended to grant an estate of freehold, whereof the enjoyment shall be deferred till a future time, it is necessary to create a previous particular estate, which may subsist till that period of time is completed; and for the grantor to deliver immediate possession of the land to the tenant of this particular estate, which is construed to be giving possession to him in remainder, since his estate and that of the particular tenant are one and the same estate in law. As where one leases to A. for three years, with remainder to B. in fee, and makes livery of seisin to A.; here by the livery, the freehold is immediately created, and vested in B. during the continuance of A.'s term. The whole estate passes at once from the grantor to the grantees, and the remainder man is seised of his remainder at the same time that the termor is possessed of his term. The enjoyment of it must indeed be deferred till hereafter; but it is to all intents and purposes an estate commencing in præsenti, though to be occupied and enjoyed in futuro. What estate will support a remainder. As no remainder can be created without such a precedent particular estate, therefore the particular estate is said to support the remainder. But a lease at will, is not held to be such |