(75)* What shall *Littleton, having spoken of defaults of performance, or express breaches of condition (F 2), speaketh now in what cases the feoffee 220 b. in judgment of law doth disable himself to perform the condition: be a breach and of disabilities, some be by act of the party, and some by act in of condition. law. ALSO,if a feoffment be made upon condition to infeoff another, LITTLETON. or (103) to make a gift in (104) tail to another, &c. (here is im- [Sect. 355. 220 b.] plied an estate for life or for years, &c.) if the feoffee, before the Condition performance of the condition, infeoff a stranger, or make a lease broken by a for life, then may the feoffor and his heirs enter, &c. because he *221 a. (103) de not in L. and M. nor Roh. (104) le added in L. and M. and Roh. mortgagee brings an action for the balance, this in general opens the foreclosure. Dashwood v. Blythway, Ab. Eq. 317. But where the mortgagee had taken possession a considerable time, and the balance was inconsiderable, a perpetual injunction was decreed. Perry v. Barker, 8 Ves. 527. 13 Ves. 198. Et vid. Wichalse v. Short, 3 Bro. P. C. 558. Lant v. Crispe, 5 Bro. P. C. 200. Jones v. Kenrick, 5 Bro. P. C. 244. It remains to notice the statute of 7 Geo. 2. c. 20. which recites, that in ejectments by mortgagees for the recovery of the mortgage lands, and in actions on bonds given by the mortgagors to pay the money, courts of law have not power to compel mortgagees to accept the principal and interest due to them and costs, or to stay mortgagees from proceeding to judgment in such actions; but mortgagors must have recourse to a court of equity, in which case courts of equity do not relieve till the hearing of the cause. For remedy whereof it is therein enacted," that, in actions on bonds for payment of mortgage money, or in ejectments in any of the courts at Westminster, at sessions in Wales, or in the counties palatine of Chester, Lancaster, or Durham, for the recovery of mortgaged lands, when there is no suit depending in equity for foreclosing thereof, if the person having right to redeem, and who shall become defendant in any such action, shall at any time pending such action pay such mortgagee, or, in case of his refusal, bring into court all principal and interest due on the mortgage and all costs, the monies paid to such mortgagee, or brought into court, shall be in full discharge of the mortgage; and the court may compel such mortgagee to reconvey the mortgage lands, and deliver up all deeds relating to the title thereof. And that, in all suits in equity for foreclosure, courts of equity, upon application made by the defendant, having a right to redeem, and upon admitting plaintiff's right, may, at any time before the cause be brought to a hearing, make such decree therein, as they could have made in case such cause had been regularly brought to hearing." But to avail himself of the benefit of this act, the mortgagor must apply before the mortgagee is entitled to take out execution. Amis v. Lloyd, 3 Ves. & B. 15. On the construction of this statute, see Goodtitle, d. Taysum v. Pope, 7 T. R. 185. Huson v. Hewson, 4 Ves. 105. Bastard v. Clarke, 7 Ves. 589. Wakerell v. Delight, 9 Ves. 36. Hewitt v. McCartney, 13 Ves. 560. Doe, d. Tubb v. Roe, 4 Taunt. 887. That a court of equity will, under particular circumstances, restrain the mortgagee from proceeding at law, as where a mortgagee lodged the title deeds with his attorney, who claimed a lien upon them for business done, see Schoole v. Sall, 1 Sch. & Lef. 176. For though a mortgagee has a right to proceed on his mortgage and bond at the same time, yet the mortgagor shall not be obliged to pay upon his bond, unless he is secure that his title deeds shall be delivered up. So the executor of a mortgagee shall be restrained from enforcing payment, and the money ordered to be paid into court, where there is no heir of the mortgagee who can convey. Ibid. With regard to estates held by statute-merchant, statute staple, and elegit, see the notes to fol. 289 b. post, Book III. chap. 2. Of Execution.-[Ed.] (F2) A. bequeathed an annuity to B. with condition to fall into the residue, upon his signing any instrument agreeing to sell, assign, charge, or dispose of it, or empowering any person to receive it, &c. in the most comprehensive terms; B. took the benefit of an insolvent act: this was held to be a breach of the condition, for the act was voluntary in B. Shee v. Hale, 13 Ves. 404.-[Ed.] disability to 13 H. 7. 23 b. hath disabled (& 2) himself to perform the condition, inasmuch as he hath made an estate to another, &c. *This is a disability by the act of the party, for herein the feoffee hath disabled himself to make the feoffment or other estate according 32 E. 3. Barre to the condition. And to speak once for all, the feoffee is disabled 264. 21 Ass. when he cannot convey the land over according to the condition in pl.7. Rep. the same plight, quality, and freedom as the land was conveyed to 28. 38 Ass. 59. 1 Rol. Abr. 447.) LITTLETON. [Sect. 356. in the same plight; [СОКЕ, 221 a.] him, for so the law requireth the same, as shall manifestly appear hereafter. And here, where our author speaketh of a feoffment, he includeth an estate tail as well as the fee simple. IN the same manner it is, if the feoffee, before the condition 221 a.] performed, letteth the same land to a stranger for term of years, or to perform &c. (here the &c. implieth a lease to take effect in futuro as well as in præsenti, also a lease for one year or half a year, &c.); in this case the feoffor and his heir may enter, &c. because the feoffee hath disabled him to make an estate of the tenements according to that which was in the tenements, when the state thereof was made unto him. For if he will make an estate (105) of the tenements according to the condition, &c. then may the lessee for years enter and oust him to whom the estate is made, &c. and occupy this during his term (106). (4 Rep. 52.) (5 Rep. 95.) 221 a. LITTLETON. *221 b. The reason of this is evidently set down before. And again, of disabilities some be by act in præsenti, whereof Littleton hath put two examples, and some in futuro, whereof now he will speak in the next section. AND many have said, that if such feoffment be made to a [Sect.357. single man upon the same condition, and before he hath perform221 a.] ed the same condition he taketh wife (107), then the feoffor and his heirs maintenant may enter, because if he hath made an estate, according to the condition, and after dieth, then (108) the wife shall be endowed, and may recover her dower by a writ of dower, &c. and so by the taking of a wife, the tenements be put in another plight than they were at the time of the feoffment upon condition, for that then no such (109) wife was dowable, nor should be endowed by the law, &c. 221 a. (77)* (g) 13 H. 7. 23 b. 34 E. 3. *221 b. *First, here is an example if a disability both by act in law and in futuro, for by marriage the wife is entitled by law to dower, after the death of her husband. Secondly, it (g) appeareth, that albeit the wife by the marriage is but entitled to have *dower, and the estate which she is to have in (105) de les tenements not in L. and M. nor Roh. (106) &c. added in L. and M. and Roh. (107) donques-que in L. and M. and Roh. (2) See on this subject, Sheph. Touch. chap. 6. p. 142. 3 Com. Dig. 123. (M. 2, 3, 4, 5.) 1 Bac. Abr. 653. 5 Vin. Abr. 221.-[Ed.] M. 27 E. 3. futuro, viz. after the decease of her husband, yet it is a present Dower 127. cause of entry. As a lease for years to begin at a day to come is present disability and cause of re-entry, for that the land is not in that freedom and plight as it was conveyed to the feoffee, and after the state made over according to the condition the land shall be Rep. 20 b. charged therewith. a tit. Dower though the removed. "Then the feoffor and his heirs maintenant may enter." Here 60. it appeareth, that seeing that for this title or possibility the feoffor disability be may presently enter, that albeit the wife happen to die before the afterwards husband, so as this title or possibility took no effect, yet the feoffor may re-enter; for the feoffee being disabled at any time, though the same continue not, yet the feoffor may re-enter, for in that case he that is once disabled is ever disabled. And herein a diversity is to be observed between a disability for a time on the part of the feoffee, and a disability for a time on the part of the feoffor. For if a man maketh a feoffment in fee, upon condition that the feoffee, before such a day, shall re-infeoff the feoffor; the feoffee taketh wife, and the wife dieth before the day; yet may the feoffor re-enter. Secus as to a disability on Rep. 21a.) the part of the feoffor; So it is, if the feoffee before the day entereth into religion, and 21 E. 4. 55. is professed, and before the day is deraigned; yet the feoffor may re-enter. So it is, if the feoffee before the day make a feoffment in fee, and before the day take back an estate to him and his heirs; yet the feoffor may re-enter. Albeit in these cases a certain day be limited, yet the feoffee, being once disabled, is ever disabled. And so it is, when no time is limited by the parties, but the time is appointed by the law. *222 a. (78)* Eliz. in Com mas Wiat's *But if a man make a feoffment in fee upon condition, that if the feoffor or his heirs pay a certain sum of money before such a day, the feoffor commit treason, is attainted and executed, now is there a (2 Rep. 79 a.) disability on the part of the feoffor, for he hath no heir; but if the heir be restored before the day, he may perform the condition, as it was resolved (*). Trin. 18 Eliz. in Communi Banco, in Sir Trin. 18 Thomas Wiat's case, which I heard and observed. Otherwise it muni Banco is, if such a disability had grown on the part of the feoffee; and the in Sir Tho reason of the diversity is, for that, as Littleton saith, maintenant case. by the disability of the feoffee, the condition is broken, and the Plo. 553 a. feoffor may enter, but so it is not by the disability of the feoffor, or 554. Cro. Car. his heirs; for, if they perform the condition within the time, it is sufficient, for that they may at any time perform the condition before the day. And so it is, if the feoffor enter into religion, and before the day is deraigned, he may perform the condition for the cause aforesaid. Et sic de similibus. 427. Hob.334.) "To a single man." For if the feoffee were married at the 221 b. time of the feoffment, then the dower can be no disability, because 222 a. 13 H. 7. 23 b. 44 E. 3. 9 b. 20 E. 3. 73. the land shall remain in such plight as it was at the time of the feoffment made unto him. Plight is an old English word, and here signifieth not only the estate, but the habit and quality of the land, and extendeth to rentcharges, and to a possibility of dower. Vid. Sect. 289, where plight is taken for an estate or interest of and in the land itself, and extendeth not to a rent-charge out of the land. The &c. in this section are sufficiently explained. IN the same manner it is, if the feoffee charge the land by his deed with a rent-charge before the performance of the condition, or be bound in a statute staple, or statute merchant, in these cases the feoffor and his heirs may enter, &c. causâ quâ suprà. For whosoever cometh to the lands by the feoffment of the feoffee, (110) they ought to be liable, and put in execution *by force of the statute merchant, or of the statute staple. (111) Quære. But when the feoffor or his heirs, for the causes aforesaid, shall have entered, as it seems they ought, &c. then all such things, which before such entry might trouble or incumber the land so given upon condition, &c. as to the same land, are altogether defeated. And here it is to be understood, that the grant of the rent-charge is a present disability of the feoffee, and therefore albeit the grantee doth bring a writ of annuity, and discharge the land of it, ab initio, Julius Wyn yet the cause of entry being once given by the act of the feoffee, the feoffor may re-enter. And so it is, if the grant of the rentcharge were made for life, and the grantee died before any day of (5 Rep. 20 b.) payment, yet the feoffor may re-enter. 20 H. 6. 34. nington's case, ubi supra. (1 Rol. Abr. 447.) 18 Ass. pl. The like law is, of any judgment given against the feoffee, wherein ul. 19 E. 3. debt or damages are recovered. 39. Lib.2. fol.80 b. And it is to be observed, that Littleton puts these cases as examCromwell's ples, for there are some other disabilities implied, that are not here expressed. case. (4 Rep. 119.) *222 b. (Ante, sect. 354. 1 Rol. Abr. 454.) The Lord Clifford did hold his barony and the sheriffwick of Westmoreland, of the king by grand serjeanty in capite, and the king gave him license that he might infeoff thereof divers chaplains in fee, so that they should give the same to the Lord Clifford and the heirs *male of his body, the remainder over, &c.: the Lord Clifford according to the license infeoffed the chaplains, and before they made the re-conveyance the Lord Clifford died; and it was adjudged that the heir might enter for the condition broken. For in this case the feoffees were bound by law to have made the gift in tail to the Lord Clifford himself, albeit he never made any request, for otherwise they pursued not the license, and if they should make the state to the issue of the Lord Clifford, then might the king seise (110) eux-donques les tenements, L. and M. and Roh. (111) Quare-&c. L. and M. and Roh. the barony, &c. for default of a license, and that in default of the feoffees. And then the same should not be in the same plight and freedom as it was at the time of the feoffment made upon condition, which is worthy of observation. (80) 1 Leon. 167.) If a man grant an advowson, upon condition that the grantee shall Rep. 79. re-grant the same to the grantor in tail; in this case, if the church become void before the re-grant, or before any request made by the grantor, he may take advantage of the condition; because the advowson is not in the same plight as it was at the time of the grant upon condition. And so it was resolved, (*) Pasch. 14 Eliz. in Communi (Pasch. Banco, between Andrewes and Blunt, which I heard and observed, Dier. and which my Lord Dyer hath omitted out of his report of that case, and therefore the grantee in that case at his peril must re-grant it before the church becomes void, or else he is disabled, otherwise he hath time during his life if he be not hastened by request. 14 Eliz. 311. If the feoffee suffer a recovery by default upon a feigned title 44 E.3.9. before execution sued the feoffor may re-enter for this disability (H2). Et sic de similibus. act (other a disability) If the feoffee be disseised, and after bind himself in a statute staple, 222 a. or merchant, or in a recognizance, or take wife, this is no disa- or where the bility in him, for that during the disseisin the land is not charged wise causing therewith, neither is the land in the hands of the disseisor liable is done du thereunto. And in that case if the wife die, or the conusee release the statute or recognizance, and after the disseisee doth enter, there is no disability at all, because the land was never charged therewith; and therefore in that case the feoffee may enter and perform the condition in the same plight and freedom as it was conveyed unto him. ring dissei Lib. 2. fo. 59, 60. Julius 10 Rep. 79a. Rep. 49 b.) [Sect.345. 213 a.] Who may take advant age of a condition broken. ALSO, if a man infeoff another (112) upon condition, that he LITTLETON. and his heirs shall render to a stranger and to his heirs a yearly rent of twenty shillings, &c. and if he or his heirs fail of pay- 7. ment thereof, that then it shall be lawful to the *feoffor and his heirs to enter, this is a good condition; and yet in this case, albeit such annual payment be called in the indenturé a yearly (81)* rent, this is not properly a rent. For if it should be a rent, it Re-entry may must be rent-service, rent-charge, or a rent-seck, and (113) it is to, and be not any of these. (This is a good logical argument à divisione, et feoffor and argumentum à divisione est fortissimum in lege. (h) Littleton bir useth this argument elsewhere, where see more of this matter.) [COKE, For if the stranger were seised of this, and after it were denied 213 b.] him, he shall never have an assise of this, because that it is (114) 381. not issuing (115) out of any tenements; and so the stranger hath (112) en fee added L. and M. and Roh. (113) que added L. and M. and Roh. (114) pas not in L. and M. made by the only; (h) Vid. sect. (H2) So if a real recovery be had against the feoffee, and execution thereupon, it will be a breach of the condition. Rol. Abr. 448.-[Ed.] |