29.

gift in tail good as to alienations working a discontinuance, 28, Secus as to a common recovery, 30, 31. On gift in tail with remainder in fee, condition not to alien, good as to the intail only, 32. Condition to re-enter on discontinuance of intail and death of issue, good, ib. III. Mortgage, 33. Origin of the term, 34. The different kinds of mortgage, 34 to 37. IV. Condition, how to be performed, 38. In respect of the person to perform the same, 38, 39 On mortgagor's death before day of payment, his heir may perform the condition, 40, 1.; or his executors, &c. 42. Secus as to a stranger, 43. Unless the heir be an ideot, ib. Condition to have fee on payment of money by a day certain, may be performed by the feoffee's alienee, 44.; or by the first feoffee, 1b. But where no day of payment is appointed, on mortgagor's death his heir cannot perform the condition, 45. In respect of time. No time being limited, feoffor has during life to perform the condition, ib. Secus in the case of bonds, ib. ; or where the condition is to be performed to a stranger, 46. In respect of place. Condition to pay a sum in gross, no place being appointed, must be performed to the feoffee in person, 47, 48. Secus in the case of a rent, 49., or if the feoffee be out of the kingdom, ib. ; or if the condition be to deliver a thing ponderous, 50., or to make a feoffment, ib. But where a certain place is appointed, condition must be performed there, ib. Though it may be performed in another place, by consent, 51. Where the place is certain, and the time uncertain, notice of performance must be given, 52. In respect of the person to whom it is to be performed. Mortgage money to be paid to the executors, and not to the heir, 52, 3, 4. Secus if it be expressly payable to the heir, 55. In what cases the mortgagor has election to pay either to the executors or heir, 56., or either to the first mortgagee or his assignee, 57. V. What shall be a sufficient performance. Condition must be performed bona fide, 58. When consisting of divers parts in the conjunctive, both to be performed, ib. Secus, if in the disjunctive, 59. Condition in the conjunctive and disjunctive, to be taken wholly in the disjunctive, ib. Condition to create an estate, if performed as near to the intent as possible, sufficient, ib. Secus as to a condition to defeat an estate, 59. 65. On condition for payment of money, acceptance of a collateral thing sufficient, 66. But not e converso, ib. or where the condition is to be performed to a stranger, 67. Acceptance of a less sum at the day, no performance, ib. Secus as to an acquittance by deed, ib.; or where it is paid and accepted before the day, ib. Tender and refusal, a sufficient discharge, 68 Secus where the condition is to be performed to a stranger, &c. ib. What money may be tendered, and how, 69, 70. On tender and refusal, the feoffee is without remedy, 71. Secus in the case of bonds, 72. or where the mortgage was for a precedent debt, 73, 74. VI. What shall be a breach of condition, 75. Condition broken by a disability to perform, ib.; or to perform in the same plight, 76.; though the disability be afterwards removed, 77 Secus as to a disability on the part of the feoffor, 77 to 79.; or where the act (otherwise causing a disability) is done during disseisin, 80. VII. Who may take advantage of a condition broken, ib. Re-entry may be reserved to, and be made by the feoffor and his heirs only, 81 to 84.; and not by a stranger, 84. Nor (at common law) by assignees in deed, 85, or in law, 85. Secus as to the successors of a bishop, &c. 86. ; or executors, in respect of leasehold estates, ib.; or as to a stranger, in case of limitations, ib.; or of a condition to make void a lease for years,

87.; or as to a condition in law, 88. Construction of the stat. 32 H. 8. c. 34, 89. Who entitled to enter as assignees within this statute, or not, 90. VIII. Circumstances requisite to entitle a party to take advantage of a condition broken, 91. Demand. When necessary, 92. where to be made, 93.; and at what time, 94. Entry or claim, 95. Exceptions to the rule requiring entry, 96. IX. On entry for condition broken, the party is seised in his former estate, 97. Exceptions to this rule; in respect of impossibility, ib.; or of necessity, 98.; or as to some collateral qualities,ib.; or in case of a special condition to enter and hold till payment, 100, 1. X. What shall be a dispensation of a forfeiture, 102. XI. Pleading conditions in deed. Ia pleading condition to defeat an estate of freehold, the party must show forth the deed under seal, 103. Exceptions to this rule: where the party pleading is a stranger, ib (except where the deed belongs to him), 104, or where the estate is executed, ib.; or where the showing is hindered by the other party, 105. In action by lessee for life against lessor, who had entered for breach of a parol condition, defendant's not showing deed aided by verdict, 106. 108.; but if lessee re-enters, and, in bar to an action by lessor, pleads the lease made by plaintiff, and the reversion in him, lessor is without remedy, 108. Where the feoffor may plead a condition contained in a deed poll, 109 to 113. Conditions in law, 113. Definition of a condition in law, ib. The different kinds of conditions in law, 114, 115. Diversity between a condition in law founded on skill, and other conditions in law, 116. Condition in law by statute giving a recovery, stronger than other conditions in law, ib. On breach of a condition in law, precedent charges not avoided, 117. Devise of lands to an executor to be sold, a condition in law, 117, 118, 119. Limitations. Effect of the words, Durante, 120, Dum, 121, Dummodo, ib., Quamdiu, &c. ib. Limitations may be pleaded without deed, ib. Defeasance. Estate executed, no defeasible by a subsequent deed of defeasance, 122 Secus as to things executory, 123. Powers of revocation, ib. On revocation of uses, covenantor scised in fee without entry or claim, 124. May revoke part of the uses at one time, and part at another, ib. On alienation of part, the power extinct for part only; on alienation of the whole, all the power extinct, ib. Secus in the case of a power without interest, ib. New uses may be limited by the same conveyance revoking the old, ib. Powers of revocation to be construed favourably, 124, 125.

Of Estates in Remainder and Reversion.

Definition of a remainder, 126. On lease for years, remainder for life, &c. livery of scisin necessary, 127. Regularly remainder should vest at the time the particular estate is created, ib. but a contingent remainder is good, if it take effect during the particular estate, 128 to 132. On particular estate being defeated, the remainder also defeated, 133, 134. But a remainder vested by good title may be good, though the particular estate be defeasible, 135; or become in abeyance, 136; or suspended, ib. A remainder may vest at the instant the particular estate determines, 137. Definition of a reversion, 138, 139. Reversion remains in the feoffor, after gift in tail, &c. 140-or after an extent by statute merchant, &c. 141; or where an use after divers particular estates, is limited

to the feoffor's right heirs, ib.; or where a man makes a gift in tail remainder to his right neirs, 142; or to the heirs male of his body ib. On feoffment to use of feoffor in tail and of feoffee in fee the feoffee has a remainder, and not a reversion, ib. On feoffment to uses without consideration, the use undisposed of reverts to the feoffor, as his ancient use, 143. And where the ancestor takes an estate of freehold, a limitation after, in the same conveyance, to his heirs, vests in himself, 143 to 151. Reversion, why said to be expectant on the particular estate, 151. Incidents to a reversion, 152.

CHAP. XXIX.

Of the Title to Things Real by Descent.

Definition of a right, 153; title, 154; and interest, 155. Right of property and right of possession distinguished, ib. Union of right of property and right of possession, a complete title, 155. Of descent, 156. Nature of descent, ib. How it differs from descent in the civil law, ib. Degrees of consanguinity, how computed, 157. Difence between the canon and civil law as to the collateral line, 158. Rules of descent. I. To the next of blood, 159. The lineal line preferred to the collateral line, 160. "Next of blood," intended of the next jure representationis, 161 Diversity herein in the case of purchase, ib. Exclusion of lineal ascent; the father, though next of blood, not inheritable to his son's estate, 162; unless he claim by collateral descent, as heir to his son's uncle, 182, 3; who, to entitle the father to inherit, must have been last seised of the actual freehold, 164, 5 Diversity herein in the case of purchase, 166. Descent to an heir, may be defeated by the birth of a posthumous heir nearer of blood, ib. II. To the most worthy of blood, ib. Preference of male heirs over heirs female; heirs on the part of the father shall inherit before heirs on the part of the mother, 167. But the heir must be of the blood of the first purchaser, 168; and therefore where lands descend from the mother, the heirs ex parte materna shall inherit, 169; and è converso, ib. What shall be a purchase and break the descent, so as to entitle the paternal heir to a preference over the maternal heir, or not, 170 to 174. Right of primogeniture, ib. Exclusion of the half-blood, 175. Rule of poss&Bsio fratris, 177. In what cases it holds 177, 8. What seisin is necessary, 179. Where the sister shall inherit though there was

no entry, 179, 180. Entry in part sufficient, 181. Seisin also requisite in the case of incorporeal hereditaments, 182. The seisin being defeated, possessio fratris fails, 182, 3.

CHAP. XXX.

Of Title by Purchase and by Escheat.

Definition of purchase, 184. The different kinds, 185, 6. The word" inheritance" applicable to inheritable property acquired by purchase, as well as by descent, 186, 7. Definition of escheat, 188. Escheat arises either by the attainder of the tenant, ib.; or by his death without heirs, 189. Persons incapable of being heirs, 190. A monster, ib. A bastard, ib. An alien, 191. Though

made denizen by letters patent, yet he cannot inherit: secus if he be naturalized, ib. A person attainted, 192. Though pardoned by letters patent, yet he cannot inherit, ib.; secus as to a pardon by act of parliament, ib. Attainder of the father no bar to collateral descent between the sons, 192, 3. To whom lands escheat, 194. On attainder for outlawry in an appeal, the escheat has not relation to the time of the offence committed, so as to avoid mesne conveyances: secus as to an indictment, 195. Of the office of escheator, 196, 7.

CHAP. XXXI.'

Of Title by Prescription.

Definition of prescription, 198. Prescription in the person, and in the estate, ib. How a prescription differs from a custom, ib. Circumstances necessary to a good prescription, 199--Continued usage, ib. Time out of mind, ib. Prescription against another prescription, void, ib. What things may be claimed by prescription, or not, 200. How a title by prescription may be lost, 201. Prescription not destroyed by interruption in the possession only, ib.; secus as to interruption in the right, 201, 2. How pleaded, 203. For things that lie in grant, a man cannot prescribe in a que estate, but only in him and his ancestors, ib. Secus as to things regardant or appendant to a manor, &c. ib.; or as to things in grant, where the que estate is pleaded in another, 204; or where the thing in grant is but a conveyance to the thing claimed by prescription, 204. Of what estate a que estate may be pleaded, and by and in whom it must be alleged, ib.

CHAP. XXXII.

Of Title by Forfeiture.

Definition of forfeiture, 206. I. By matter in pais, ib. Alienation by matter in pais for a greater estate than the tenant has, operates as a forfeiture, ib. Secus as to things in grant, if aliened by deed, 207. II. By matter of record ib.; as by alienation, ib.; or by claim, 208; or by affirming the reversion to be in a stranger, 208. Forfeiture incurred by alienation for a greater estate than the tenant has, though not in fee, 209; or by alienation on condition, though the tenant enter for a breach, ib.; secus as to an alienation to him in the remainder, ib. III. Who may take advantage of a forfeiture, 210.

212.

CHAP. XXXIII.

Of Title by Alienation.

Definition of alienation, 211. I. Persons capable of purchase, Natural persons, and bodies politic, ib. Aliens, ib. Persons attainted, 213. Corporations aggregate or sole, ib. Villains, 214. Infants, ib. Persons being non compos mentis, ib. Femes Covert, 215. Persons deformed, &c. ib. II. Persons capable for

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some special purpose only, ib. III. Persons incapable of taking by purchase, ib. A monster, ib. Persons professed, 216. A society not incorporated, ib. IV. Persons specially disabled to take some particular thing, ib. V. By what names persons may purchase, 217. Purchaser must be named by his proper name of baptism and surname, ib. Secus where there can be no uncertainty as to the person, ib.; but in pleading, the proper naine must be shown, ib. Name of baptism being changed at confirmation, a purchase by the name of confirmation is good, 218. So if made by the name of baptism, before the change, ib. VI. Persons disabled to alien, 219. Men attainted, ib. Aliens, ib. The king's villains, ib. Persons being non compos mentis, ib. Femes covert, ib. Infants, ib. Persons under duress, ib. Bishops and others having ecclesiastical livings, ib. VII. Fines for alienation, 220. Origin of fines for alienation, 220, 1. 2. Fines for alienation, when taken away, 222. VIII. The different modes of alienation, 223.

CHAP. XXXIV.

Of Alienation by Deed.

Definition of a deed, 224. I. The different kinds of deeds, 224, 5. Deeds indented and deeds poll distinguished, 225, 6. All the parts of an indenture make but one deed; and are equally binding, 226. Indenture though sealed by the grantor only, is good, 227. Form of an indenture in the third person, ib. Form of an indenture in the first person, 228. Indenture in the first person, binding on both parties, if sealed by both, and so stated in the deed, 229. Persons not a party to a deed may take by way of remainder, 230; and on entering and agreeing thereto, is bound by the covenants, 230. 1. II. Circumstances requisite to a good deed, 232. Writing on parchment, or paper, 233. Sealing, 233, 4. Delivery, 234. Delivery of a deed, as an escrow, if made to the party himself, is an absolute delivery, 234. Secus, if made to a stranger, 235. Delivery may be made without words; or by words without an act of delivery, ib. Consideration. Deeds and conveyances may be avoided in case of fraud, 236, 7, 8; or usury, 239. III. The formal parts of a deed, 240. The premises, ib. Habendum, 241. May control the general intendment of the premises, ib. Tenen dum, ib. Reddendum, 242. Clause of warranty, ib. Sealing, ib. Date, ib. Why anciently omitted, ib. Clause of hiis testibus, 243. Deed may be good though without the formal parts, ib. ; or although the grantee be named in the habendum only, ib. Ancieut deeds having an indorsement of the delivery, or of livery of seisin, suspicious, 244.

CHAP. XXXV.

Of Warranty.

Definition of warranty, 245, 6. Diversity between the common law and the civil law, as to warranty, 247. The several kinds of warranty, ib. I. Warranty in deed, 248. To what things it may be annexed, ib. On what conveyances it may be made, 249. By what words created, 249, 250, 1. II. Warranty in law, 252. Cre