Nature of conditions. Glanv. lib. 10. cap. 8. Bracton, lib. 2. ca. 5. 6. 7, &c. lib. 4. fol. 213. Brit. cap. 36. & fol. 89. 99. 114. 130. 205. 206. 207. 249. Fleta, lib. 3. cap. 9. & lib. 5.cap 5. Mirr. cap. 2. sect. 15. & 17. (A) Estates upon Condition, as Sir William Blackstone justly remarks, are more properly qualifications of other estates, than a distinct species of themselves. Any quantity of interest, either a fee-simple, a freehold, or a term for years, may be granted with an express condition annexed, whereby an estate may be created, enlarged, or defeated upon an uncertain event. Where the condition must be performed before the estate can commence, it is called a condition precedent; but where the effect of a condition is either to enlarge or defeat an estate already commenced, it is called a condition subsequent. Thus, if an estate be limited to A. upon his marriage with B., the marriage is a precedent condition, and till that happens no estate vests in A. Show. Parl. Ca. 83. Or if a man make a lease of land to I. S. for ten years, provided that if he pay the lessor 10l. at Michaelmas, he shall have the land to him and his heirs; this is also a condition precedent, and must be fulfilled ere the estate can take effect. Shep. T. 17. But where a lease is made for years, on condition that the lessee shall pay 107. to the lessor at Michaelmas, or else his lease shall be void, this is a condition subsequent; for here the estate is executed, but the continuance thereof depends upon the breach or performance of the condition. Ibid. So if a man grant an estate in fee-simple, reserving to himself and his heirs a certain rent, and that, if such rent be not paid at the times limited, it shall be lawful for him and his heirs to re-enter, and avoid the estate: In this case the grantee and his heirs have an estate upon condition subsequent, which is defeasible if the condition be not strictly performed. Post, 201 a. Conditions precedent, which are to create an estate, receive a liberal construction: and if the condition is performed as near to the intent as possible it will be sufficient: but it is a rule that conditions which defeat estates are to be constructed strictly. Post, 220 a. Rol. Abr. 438. And such conditions can only be reserved to the feoffor, donor or lessor, and their heirs, and not to a stranger; for it is a maxim of law, as Lord Coke hereafter observes, that nothing which lies in action, entry or re-entry, can be granted over, in order to discourage maintenance and litigation. Post, 214 a. Most of the cases relating to conditions fall under the distinctions of conditions precedent and subsequent. Besides these express or conventionary conditions, there is another class of conditions, which are termed conditions in law. Estates upon condition implied in war, 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. As if a grant be made to a man of an office generally, without adding other words; the law tacitly annexes hereto a secret condition, LITTLETON. annexed to the realty, whereof Littleton here speaketh, in the legal understanding, est modus, a quality annexed by him that hath estate, interest, or right, to the same, whereby an estate, &c. may either be defeated, or enlarged, or created upon an uncertain event. Conditio dicitur cùm quid in casum incertum qui potest tendere ad esse aut non esse confertur. ESTATES which men have in lands or tenements (1) upon [Sect.325. condition are (2) of two sorts, viz. (3) either they have estate 201 a.] The different upon condition in deed (quæ est facti, that is, upon a condition kinds of con- expressed by the party in legal terms of law), or upon condition in COKE, 201 law (4), &c. ditions. a. (3) 201 a. (Plow. 23 a. 1 Rol. Abr. 420. 2 Rep. 79.) *"Or upon condition in law, &c." Quæ est juris, that is, tacitè, created by law without any words used by the party. Again Littleton subdivideth conditions in deed (though not in express words) into conditions precedent (of which it is said, Conditio adimpleri debet priusquam sequatnr effectus,) and conditions subsequent. Again, of conditions in deed some be affirmative, and some in the negative; and some in the affirmative, which imply a negative; some make the estate, whereunto they are annexed, *201 b. voidable by entry or claim, and some make the *estate void ipso facto, without entry or claim. (1) sur condition not in L. and M. nor Roh. (2) de-en in L. and M. and Roh. (3) ou not in L. and M. nor Roh. 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 to grant it to another person. Post, 232 b. 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 a tenant for life or years enfeoff a stranger in fee-simple, this is 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. Post, 215 a. So if any tenant for years, for life, or in fee, commit a felony, the king, or other lord of the fee, is entitled to have their tenements, because their estate is determined by the breach of the condition, that they shall not commit felony, which the law tacitly annexes to every feudal donation. To the feudal system, indeed, we owe the origin of the doctrine of conditions. In the early ages of the feud, the performance of feudal service was a condition incident to, and inseparable from, the estate of the feudatory; and, in case of failure thereof, the lord had a right of entry for his tenant's forfeiture. And, in after times, when improper feuds were introduced, estates were granted subject to express conditions; and it was a maxim of the feudal law, that conventio modum dat donationi: and, therefore, whatever terms the donor prescribed, though varying from the general course, was the rule by which the grant was to be regulated. See Sulliv. Lect. 7. p. 68. Craig. de Jure Feudali, lib. 2. dieg. 4. sect. 1, 2, 3. In the civil law the word condition has a much more extensive signification than in our law; for in the former conditions are defined to be "pactions which regulate that which the contractors have a mind should be done, if a case which they foresee should come to pass." See Domat. lib. 1. tit. 1. sect. 4. Besides the distinctions of conditions precedent and subsequent, this writer also mentions a third sort of conditions, viz. those which neither accomplish nor dissolve the contract; but which only make some other changes in it: as where it is said, that if a house, which is let be given without the moveables that were promised, the rent shall be lessened so much. Ibid.-[Ed.] [See Mr. Butler's note at the end of the volume. Note. 1.] Also of conditions in deed, some be annexed to the rent reserved out of the land, and some to collateral acts, &c.: some be single, some in the conjunctive, some in the disjunctive, as shall evidently appear in this chapter, where the examples of these divisions shall Mir. cap. 2. be explained in their proper place. Of conditions in law more shall be said hereafter in this chapter. sect, 15, & 17, UPON condition in deed is, as if a man by deed indented LITTLETON, infeoff's another in fee-simple (5), reserving to him and his heirs [Sect.325. 201 a.] yearly a certain rent payable at one feast or divers feasts per Conditions in annum, on condition that if the rent be behind, &c. that it shall deed. be lawful for the feoffor and his heirs into the same lands or tenements to enter, &c. (Ou si terre soit alien a un home en fee rendant a lui certaine rent, &c.] (A) And if it happen the rent to be behind by a week after any day of payment of it, or by a month after any day of payment of it, or by (6) half a year, &c. that then it shall be lawful to the feoffor and his heirs to enter, &c. (7) In these cases if the rent be not paid at such time, or before such time limited and specified within the condition comprised in the indenture, then may the feoffor or his heirs enter into such lands or tenements, and them in his former estate to have and hold, and the feoffor quite to oust thereof. And it is called an estate upon condition, because that the state of the feoffee is defeasible, if the condition be not performed, &c. * Here Littleton putteth one example of six several kinds of conditions. That is, first, of a single condition in deed. Secondly, of a condition subsequent to the estate. Thirdly, a condition annexed to the rent, &c. Fourthly, a condition that defeateth the estate. Fifthly, a condition that defeateth not the estate before an entry. And lastly, a condition in the affirmative, which implieth a negative, (as behind or unpaid implieth a negative) viz. not paid. All which do appear by the express words of Littleton. (4)* *201 b. IN the same manner it is if lands be given in tail, or let for LITTLETON. term of life, or (8) of years, upon (9) condition, &c. [Sect.326. 202 b.]` This &c. implieth the several kinds of conditions in deed before 202 b. specified. ALSO, divers words (amongst (10) others) there be, which by virtue of themselves make estates upon condition; one is the word (11) sub conditione: as if A. infeoff B. of certain *land, to (5) simple not in L. and M. nor Roh. LITTLETON. [Sect.328. 203 a.] *203 b. (9) tiel added in L. and M. and Roh. (10) les added in L. and M. and Roh. (11) sub conditione-de condicion in L. and M. and Roh. (A) Part of the original French is here inserted, because the words "rendant a lui certaine rent," &c. are not noticed in the translation of the section, though the same words are commented by Lord Coke, 201 b. [Note from 18th Lond. Ed. 1823.] ted. 1. By what have and to hold to the said B. and his heirs upon (12) condition, words crea that the said B. and his heirs do pay, or cause to be paid to the Effect of the aforesaid A. and his heirs yearly such a rent, &c. In this case, conditione." without any more saying, the feoffee hath an estate upon condition. words, "sub 203 b. "Such a rent, &c." This (&c.) implieth any other rent, or sum Vid. sect. 325. in gross, or any collateral condition whatsoever, either to be performed by the feoffee, (whereof our author here putteth his case) or. by the feoffor, and extendeth to all kinds of conditions in deed before specified. 203 a. Sub conditi Here in this and the next two sections Littleton doth put four one. Marie, examples of words that make conditions deed and first, sub Dyer 138. 27 conditione. This is the most express and proper condition in deed, H.4. Entre and therefore our author beginneth with it. H. 8. 15. 13 Cong.57. 29 Ass. 7. 33 Ass. 11. 40 Ass. 13. Bracton, ubi supra. Fleta, lib. 4. cap. 9. Brit. cap. 36. et ubi supra. (5)* 203 b.] Proviso, Ita quod. *ALSO, if the (13) words were such, Provided always, that LITTLETON, the aforesaid B. do pay or cause to be paid to the aforesaid A. [Sect.329. such a rent, &c.; or these, So that the said B. do pay or cause to be paid to the said A. the said rent, &c.; in these cases, without more saying, the feoffee hath but an estate upon condition; so as if he doth not perform the condition, the feoffor and his heirs may enter, &c. 203 b. Sect. 220. fol. 13. 27 H. "Provided always, that B. pay, &c." Our author putteth his Proviso. Vid. case where a proviso cometh alone. And so it is if a man by Dyer. 28 H.8. indenture letteth lands for years, provided always, and it is cove8. fol. 14. 15. nanted and agreed between the said parties, that the lessee should 13 H.4. Entre not alien; and it was adjudged that this was a condition by force of Cong 57. Seignior the proviso, and a covenant by force of the other words (B). Cromwell's case, lib. 2. fol. 71. 72. at large. 35 H. 8. tit. Condition. Br. lib. 8. 89. Frances' case. (2 Rep. 70 b.) (*) 27 H. 8. 15, &c. Ita quod. Fleta, lib. 4. cap. 9. Bracton, ubi su This word proviso shall be also taken as a limitation or qualification, as hereafter in his proper place shall be said. And sometimes it shall amount to a covenant. All which do appear by the authorities in the margent (*). For the &c. in this section explanation is made in the section pra. Britton, next before. ubi supra. (12) ista added in L. and M. and Roh. (13) parols-condicions in L. & M. & Roh. (B) So the word "proviso" may operate as a condition, although there be covenants before. 3 Dy. 311. 2 Co. 70 b. 1 Rol. Abr. 410. But if the clause in which it stands has dependence on another clause of the deed, or be the words of the feoffee, to compel the feoffor to do something, then it is not a condition, but only a covenant. Sheph. Touch. 122. Moor, 307.707. Where the word "proviso" shall be taken to be only a qualification or explication of a covenant or grant, see 2 Leon. 128. 3 Leon. 225, 226. Dy. 222. 4 Leon. 70. 3 Leon. 16. Poph. 119. Gouldsb. 131. And. 71, 72. Mo. 707. 2 Co. 72 a. As to the difference between a condition, a remainder, and a conditional limitation, see the note to fo. 214 b. post. -[Ed.] [See Mr. Butler's note at the end of the vol. Note 2.] "Ita quod." This is the third condition in deed, whereof our (Dyer 13 b.) author maketh mention. ALSO,there be other words in a deed which cause the tenements LITTLETON. to be conditional. As if upon such feoffment a rent be reserved [Sect.330. to the feoffor, &c. and afterward this word is put into the deed Quod si con203 b.] (14), That if it happen the aforesaid rent to be behind in part or in all (15), that then it shall be lawful for the feoffor *and his heirs to enter, &c.; this is a deed apon condition. "Quod si contingat, &c." This is the fourth condition in deed set down by our author. tingat. (6)* 203 b. (Ante 146 b.) 6 E. 2. Entrie Cong. 65. 8 E. 2. Ass. 320. adjudged. Quod si contingat. Pasch. 37. El. Rot. 254. inter Sayer et contingat, words of con BUT there is a diversity between this word si contingat, &C. LITTLETON. and the words next aforesaid, &c. For these words, si contingat, [Sect.331. &c. are nought worth to such a condition, unless it hath these Diversity be204 b.] words following, “That it shall be lawful for the feoffor and his tween quod si heirs to enter," &c. But in the cases aforesaid, it is not ne- and other cessary by the law to put such clause, scilicet, “that the feoffor dition.) and his heirs may enter,” &c. because they may do this by force of the words aforesaid, for that they contain (16) in themselves a condition, scilicet, that the feoffor and his heirs may enter, &c. Yet it is commonly used, in all such cases aforesaid, to put (17) the clauses in the deeds, scilicet, if the rent be behind, &c. that it shall be lawful to the feoffor and his heirs to enter, &c. And this is well done, for this intent, to declare and express to the common people, who are not learned (18) in the law, (19) of the manner and condition of the feoffment, &c. As if a man seised of land (20) letteth the same land to another by deed indented for term of years, rendering to him a certain rent, it is used to be put into the deed, that if the rent be behind at the day of payment, or by the space of a week, or a month, &c. that then it shall be lawful to the lessor to distrain, &c. (21) yet the lessor may distrain of common right for the rent behind, &c. though such words were not put into the deed, &c. Or a month, &c. Here, albeit the clause of distress be added, that if the rent be behind by the space of a week or a month, that the lessor may distrain, yet he may distrain within the week or month, because a distress is incident of common right to every rentservice. And the words be in the affirmative, and therefore cannot restrain that which is incident of common right. *The other &c. in this section upon that which hath been said are evident. (14) cest parol not in L. and M. nor in Roh. 205 a. (7)* (19) de la manner-le matiere in L. and M. and Roh. (20) come de franktenement added in L. and M. and Roh. (21) et added in L. and M. and Roh. |