OF THE LAW OF TENURES AND REAL PRO-
PERTY.
Of Estates upon Condition.
NATURE of conditions, page 1, 2. The different
kinds of conditions, 2. 3. Conditions in deed,
3, 4. I. By what words created, 4. Effect of
the words "Sub conditione," ib. Proviso, ib.
Ita quod, 5. Quod si contingat, ib. Diversity
between quod si contingat, and other words of
condition, 6. Si, and Pro, 7. Less precise
words of condition, sufficient in the king's
case, in wills, and leases for years, 8. II.
What shall be a good condition, or not, 9.
Condition precedent, to enlarge an estate,
when good, 10, 11. On lease for years, con-
ditional to have fee, and livery thereupon,
whether a fee conditional passes ? 11 to 17.
Condition precedent being uncertain, no es-
tate can arise, 18. So if it become impossible,
though by act of the lessor, ib. Condition
subsequent becoming impossible by act of the
feoffor, the estate is absolute, ib. So if by act
of God, 19, 20. Impossible conditions. Diver-
sity herein between a condition annexed to a
feoffment, and a condition in a bond, being
executory, 22, 23. Illegal conditions. Con-
dition to do a thing malum in se, in a bond, the
bond is void, 23. In a feoffment, the estate
is absolute, 23, 24. Secus as to a condition
in a bond merely against some maxim of law,
25. Repugnant conditions, 26. Condition
not to alien, on a conveyance in fee, void, ib.
Secus where it is annexed to a collateral thing,
27. Or is restrictive of alienation to a particu-
lar person only, ib. Or in case of alienations
prohibited by law, ib. Condition not to alien
on a gift in tail good as to alienations working
a discontinuance, 28, 29. 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 mort-
gage, 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 idiot, 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, ib. 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 feof-
fee be out of the kingdom, ib.: or if the condi-
tion be to deliver a thing ponderous, 50, or
to make a feoffment, ib. But where a certain
place is appointed, condition must be perform-
ed 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, ac-
ceptance of a collateral thing sufficient, 66.
But not e converso, ib., or where the condition
is to be performed to a stranger, 67. Accept-
ance 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 per-
formed 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 per-
form, 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 (other-
wise causing a disability) is done during dis-
seisin, 80. VII. Who may take advantage of
a condition broken, ib. Re-entry may be re-
served 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 en-
ter as assignees within this statute, or not. 90.
VIII. Circumstances requisite to entitle a par-
ty 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 requir-
ing 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 dis-
pensation of a forfeiture, 102. XI. Pleading
conditions in deed. In pleading condition to
defeat an estate of freehold, the party must
show forth the deed under seal, 103.
ceptions to this rule: where the party pleading
is a stranger, ib. (except where the deed be-
longs to him,) 104, or where the estate is ex-
ecuted, 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. Con-
ditions in law, 113. Definition of a condition
in law, ib. The different kinds of concitions
in law, 114, 115. Diversity between a condi-
tion in law founded on skill, and other con-
ditions in law, 116. Condition in law by
statute giving a recovery, stronger than other
conditions in law, ib. On breach of a condi-
tion in law, precedent charges not avoided,
117. Devise of lands to an executor to be
sold, a condition in law, 117, 118, 119. Li-
mitations. Effect of the words, Durante, 120,
Dum, 121, Dummodo, ib., Quamdiu, &c. ib.
Limitations may be pleaded without deed, ib.
Defeasance. Estate executed, not defeasible
by a subsequent deed of defeasance, 122.
Secus as to things executory, 123. Powers
of revocation, ib. On revocation of uses, cove-
nanter seised 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 con-
veyance revoking the old, ib. Powers of re-
vocation to be construed favourably, 124, 125.
Definition of a remainder, 126. On lease for
years, remainder for life, &c. livery of seisin
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 re-
mainder 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 par-
ticular 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 heirs, 142; or to the heirs male of his
body, ib. On feoflment 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 con-
veyance, to his heirs, vests in himself, 143 to
151. Reversion, why said to be expectant on
the particular estate, 151. Incidents to a re-
version, 152.
Of the Title to Things Real by Descent.
Definition of a right, 153; title, 154; and inter-
est, 155. Right of property and right of pos-
session distinguished, ib. Union of right of
property and right of possession, a complete
title, 155. Of descent, 156. Nature of de-
scent, ib. How it differs from descent in the
civil law, ib. Degrees of consanguinity, how
computed, 157. Difference 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 collate-
ral line, 160. 66 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, 162, 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 pos-
thumous 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 in-
herit, 169; and e 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 possessio fratris, 177.
In what cases it holds, 177, 8. What seisin
is necessary, 179. Where the sister shall in-
herit though there was no entry, 179, 180.
Entry in part sufficient, 181. Seisin also re-
quisite in the case of incorporeal heredita-
ments, 182. The seisin being defeated, pos-
sessio fratris fails, 182, 3.
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 be-
ing heirs, 190. A monster, ib. A bastard, ib.
An alien, 191. Though made denizen by let-
ters 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 of-
fence committed, so as to avoid mesne con-
veyances: secus as to an indictment, 195.
Of the office of escheator, 196, 7.
Definition of prescription, 198. Prescription in
the person, and in the estate, ib. How a
prescription differs from a custom, ib. Cir-
cumstances necessary to a good prescription,
199.-Continued usage, ib. Time out of
mind, ib. Prescription against another pre-
scription, void, ib. What things may be
claimed by prescription, or not, 200. How a
title by prescription may be lost, 201. Pre-
scription 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 pre-
scribe in a que estate, but only in him and
his ancestors, ib. Secus as to things regar-
dant 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 things
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.
if aliened by deed, 207. II. By matter of re-
cord, ib; as by alienation, ib: or by claim,
208; or by affirming the reversion to be in a
stranger, 208. Forfeiture incurred by aliena-
tion 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.
Definition of alienation, 211. I. Persons capa-
ble of purchase, 212. Natural persons, and
bodies politic, ib. Aliens, ib. Persons at-
tainted, 213. Corporations aggregate or sole,
ib. Villains, 214. Infants, ib. Persons be-
ing non compos mentis, ib. Femes covert,
215. Persons deformed, &c., ib. II. Per-
sons capable for some special purpose only,
ib. III. Persons incapable of taking by pur-
chase, ib. A monster, ib. Persons professed,
216. A society not incorporated, ib. IV.
Persons specially disabled to take some par-
ticular 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 plead-
ing, the proper name must be shown, ib.
Name of baptism being changed at confirma-
tion, 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 liv-
ings, 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.
Definition of a deed, 224. I. The different
kinds of deeds, 224, 5. Deeds indented and
deeds polled 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 es-
crow, if made to the party himself, is an abso-
lute delivery, 234. Secus, if made to a stran-
ger, 235. Delivery may be made without
words; or by words without an act of delive-
ry, ib. Consideration. Deeds and convey-
ances may be avoided in case of fraud, 236,
7, 8; or usury, 239. III. The formal parts
of a deed, 240. The premises, ib. Haben-
dum, 241. May control the general intend-
ment of the premises, ib. Tenendum, ib.
Reddendum, 242. Clause of warranty, ib.
Sealing, ib. Date, ib. Why anciently omit-
ted, ib. Clause of his testibus, 243. Deed
may be good though without the formal parts,
ib.; or although the grantee be named in the
habendum only, ib. Ancient deeds having
an indorsement of the delivery, or of livery of
seisin, suspicious, 244.
Definition of warranty, 245, 6. Diversity be-
tween the common law and the civil law, as
to warranty, 247. The several kinds of war-
ranty, ib. I. Warranty in deeds, 248. To
what things it may be annexed, ib. On what
conveyance it may be made, 249. By what
words created, 249, 250, 1. II. Warranty in
law, 252. Created by the word “give," ib.;
secus as to the word "grant," 252, 3. Warran-
ty in law implied by the word, "exchange,"
254; by a partition, ib.; and by homage an-
cestrel, ib. Diversity between these words,
as to the extent of the warranty created by
them, ib. Warranty in law implied on a gift
in tail, &c., reserving rent, ib.; or on an as-
signment of dower, 255. Warranty in law
with assets, a good bar, ib. Secus as to col-
lateral titles, ib. Warranty in law binds the
heirs though not named, ib.; and extends in
some cases to special lands, ib.; and may be
created without deed, 256. III. Circum-
stances requisite to a good warranty in deed,
ib. Must be made by a person of full age, ib.
And by deed, ib. And on an estate of free-
hold, ib. Descends to the heir at common
law, 257. Diversity herein between a lien
real, and a personal lien, 258. The estate
must be turned to a right in the heir, or his
ancestor, at the fall of the warranty, 259, 260,
261. Must take effect in the life of the ances-
tor, and be binding on him, 262. Secus as
to a warranty in law, 263. The heir must
claim in the same right, ib. Diversity in the
case of a warranty with assets descending
on the king, ib. The heir must be of full
age at the fall of the warranty, 264; unless
his entry was taken away, 265. IV. Effect
of warranty, ib. At common law, every war-
ranty (except by disseisin) was a bar to the
heir, ib. Alteration in the common law by
the stat. of Glouc. cap. 3, restraining aliena-
tion with warranty by tenants by curtesy, &c.
of their wives' inheritances, 266. Construc-
tion of this statute, 266, 7, 8. Exception
therein as to alienation by fine, intended
of a fine by both husband and wife, 268 to
271. The words "Heritage, or marriage of
the mother," extend to lands in fee or tail, by
descent or purchase, 271. Alteration in the
common law by the statute 11 H. 7. cap. 20,
restraining alienation with warranty by ten-
ants in dower, &c., of their husbands' inheri-
tances, 272. Construction of this statute,
272, 3. Alteration in the common law by
the stat. De Donis restraining alienation with
warranty by tenants in tail, 274. Diversity
between lineal and collateral warranty, as to
their nature, ib. Where the heir on whom a
warranty descends, might possibly claim the
land as heir to the warranting ancestor, whe-
ther as heir lineal or collateral, the warranty
is lineal, ib. Where he could not by any
possibility inherit the land from the warrant-
ing ancestor, it is collateral, 274, 5; which is
so called because it is collateral to the title of
the land, 276, 7. Diversity between lineal
and collateral warranty, as to their effect, 278.
Lineal warranty bars the right of a fee-sim-
ple, but not of an estate tail without assets,
but collateral warranty is a bar to both, with-
out assets, ib. What deemed sufficient assets
to make a lineal warranty a bar, 279. War-
ranty of the uncle of issue in tail, to the dis-
continuee, a collateral warranty and bar
(at common law), 280. Warranty of tenant
in tail's middle son, a collateral warranty and
bar to the eldest son (at common law), 281;
secus as to the youngest son, 282, 3. On dis-
continuee with warranty by eldest coparcener
in tail, the warranty is collateral, and a bar
(at common law) to the youngest coparcener
as to her own moiety, 284; secus as to the
other moiety, ib. Warranty of tenant in tail's
wife to his discontinuee, a collateral warranty
and bar (at common law) to the issue, 285;
secus where the husband and wife were ten-
ants in special tail, 286. On gift in tail to the
eldest son, remainder to the other sons, the
warranty of the eldest son, on his discontinu-
ing the estate tail, is collateral, and a bar to
the other sons, 287; secus in case of a gift in
tail male to the eldest son, who dies, leaving a
daughter, 288. On gift in tail to a man, re-
mainder to his issue male, remainder to his
issue female, the donee's warranty, on discon-
tinuing the intail, is lineal, and no bar to his
VOL. II.
son, ib.; or daughter, ib.; but the son's war-
ranty to the discontinuee is collateral, and
a bar (at common law) to the daughter, ib.
Gift in tail to the eldest son, remainder to the
second son, &c., on condition, that if the eld-
est alien with warranty, &c., then to remain
to the second son, is void, 289 to 294. War-
ranty of tenant for life descending on remain-
der-man, a collateral warranty and bar (at
common law), 294. Warranty of tenant in
dower no bar to the heir being within age at
the fall of the warranty, ib. Secus (at com-
mon law) if the heir came of age, and did
not enter in the life of tenant in dower, 294.
Warranty for term of life, a temporary bar
only, 295, 6. V. Warranty by disseisin, 297
to 301. Why so called, ib. Its qualities, ib.
That the disseisin be done immediately to the
heir, ib. Exceptions to this rule; in respect
of fraud, &c., 302. That the warranty and
disseisin be simultaneous, ib. Exceptions to
this rule; as where the disseisin is done with
intent to make a future feoffment with war-
ranty, &c., ib. That it be in nature of col-
lateral warranty, ib. That there be a dissei-
sin or abatement, &c., ib. Warranty by
disseisin binding between the parties, though
not as to those that have right, 303. VI.
What use may be made of a warranty, ib.
Rebutter, ib. Voucher, 304. Proceedings
thereon, 305. Warrantia carte, 306. Lands
in the possession of vouchee at the time of
voucher, liable, 306; or, in warrantia carta,
at the time of writ brought, ib.
Lands spe-
cially bound not liable unless in the vouchee's
possession at the time of voucher; secus as to
his person, 307. VII. Who may take advan-
tage of a warranty, and against whom, ib.
Warranty to two, their heirs and assigns, the
assignee of the heir of one may vouch, ib.
Warranty to a man, his heirs and assigns, the
assignee's heir may vouch, ib. Heirs not be-
ing named in warranty cannot vouch, 308;
nor assigns not being named, ib. Exception
to this rule, by act of law, ib. Diversity
herein between a warranty and a covenant
real annexed to land, which yields but dam-
ages, ib. Assignee of part of the land may
vouch, 309. Secus as to assignee of part of
the estate in the land, ib.; unless the whole
estate be out of the lessor, ib. Persons not
privity in estate may rebut, but not vouch,
310. So as to assigns not named in the war-
ranty, ib.; or persons in by disseisin, &c., ib.
But persons claiming above the warranty,
can neither vouch nor rebut, 310, 311. A
woman, in certain cases, may vouch her hus-
band, 312; and e converso, 313. An infant
en ventre sa mere may be vouched with the
heir at law, ib. Heir at common law may be
vouched with the heir of the land, ib.; or
alone, at the tenant's election, ib. Loss of the
recovery in value and the recompense, in such
case, belong to the heir of the land, 314.
Bastard eigne must be vouched alone, 315.
Diversity between a personal lien and a real
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