recovery. That the trick was often performed, and safer in the thirteenth century is probable. But so far was the termor from being "liable to destruction at the will of the reversioner" that he had a writ of entry ad terminum qui nondum præteriit against his reversioner or lessor, and any one else who interfered with his possession (quoscunque dejectores), to recover both the unexpired term and damages: and that, too, with all the advantages of a freeholder in a real action, grand cape, petty cape, and all! (Bracton, lib. 4, tr. 1, c. 36, fol. 220.) As to the doubts that were long afterwards raised about the right to recover the term, something must be said in another note. It is sufficient here to show the state of the case at least twenty years before the statute of Gloucester.

But Mr. Challis goes still further when he says: "The foregoing considerations warrant the conclusion that terms of years originally pushed themselves into the rank of legal estates only by virtue of the statute 21 Hen. VIII. c. 15. This conclusion as to the primitive legal status of terms of years is confirmed by the fact that the word "seisin " is used by the old writers synonymously with possession: showing that they recognized no possession unaccompanied by an estate of freehold." (Ib. p. 47.)

The fact of this " "synonymous use of the two terms by Bracton (not by later writers during a long period) is certain; but so also is his use of seisina for the termor's possession. The natural inference is the reverse of that drawn above.

In conclusion, the mistakes of Blackstone and others, including Mr. Challis, as to the status or "legal rights of the termor in this early period, could hardly be better contradicted than they are in a single sentence from the chapter of Bracton cited above. Non magis poterit aliqius firmarium ejicere de firma sua, quam tenentem aliquem de libero tenemento suo. Et unde si ille ejecerit

qui tradidit, seysinam restituet cum damnis; quia talis restitutio non multum differt a disseysina. "No one can eject a farmer from his farm [term] any more than a tenant from his freehold. And even if his lessor have ejected him, he shall restore his seisin with damages; for such a remedy does not differ much from that of disseisin." (Fol. 220 b.)

CHAPTER THE TENTH.

OF ESTATES UPON CONDITION.

Besides the several divisions of estates, in point of interest, which we have considered in the three preceding chapters, there is also another species still remaining, which is called an estate upon condition; being such whose existence depends upon the happening or not happening of some uncertain event, whereby the estate may be either originally created, or enlarged, or finally defeated. And these conditional estates I have chosen to reserve till last, because they are indeed more properly qualifications of other estates, than a distinct species of themselves; seeing that any quantity of interest, a fee, a freehold, or a term of years, may depend upon these provisional restrictions. Estates then upon condition, thus understood, are of two sorts: 1. Estates upon condition implied: 2. Estates upon condition expressed under which last may be included, 3. Estates held in vadio, gage, or pledge: 4. Estates by statute merchant or statute staple: 5. Estates held by elegit.

I. Estates upon condition implied in law, are where a grant of an estate has a condition annexed to it inseperably, from it's 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, that the grantee shall duly execute his office, breach of which condition [153] it is lawful for the grantor, or his heirs, to oust him, and grant it to another

*-* Quoted, 31 Conn. 475; 1 Wis. 474. Cited, 42 Ark. 347.

+ 21 Ind. 522; 83 Am. Dec. 371.

on

person. For an office, either public or private, may be forfeited by mis-user or non-user, both of which are breaches of this implied condition.* 1. By mis-user, or abuse; as if a judge takes a bribe, or a park-keeper kills deer without authority. 2. By non-user, or neglect; which in public offices, that concern the administration of justice, or the commonwealth, is of itself a direct and immediate cause of forfeiture: but non-user of a private office is no cause of forfeiture, unless some special damage is proved to be occasioned thereby." For in the one case delay must necessarily be occasioned in the affairs of the public, which require a constant attention; but, private offices not requiring so regular and unremitted a service, the temporary neglect of them is not necessarily productive of mischief; upon which account some special loss must be proved, in order to vacate these. Franchises also, being regal privileges in the hands of a subject, are held to be granted on the same condition of making a proper use of them; and therefore they may be lost and forfeited, like offices, either by abuse or by neglect.e†

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 tenants for life or years enfeoff a stranger in fee-simple: this is, by the common law, 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.' So if any tenants 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

c Litt. 379.

d Co Litt. 233.

e

9 Rep. 50.

t Co. Litt. 215.

*Cited, Winst. 183, 455.

+ Cited, 5 Ark. 595; 41 Am. Dec. 113.

- Quoted, 55 Ga. 535.

by the breach of the condition, "that they shall not commit felony," which the law tacitly annexes to every feodal donation.*

[154] II. †An estate on condition expressed in the grant itself, is where an estate is granted, either in fee-simple or otherwise, with an express qualification annexed, whereby the estate granted shall either commence, be enlarged, or be defeated, upon performance or breach of such qualification or condition. These conditions are therefore either precedent, or subsequent. Precedent are such as must happen or be performed before the estate can vest or be enlarged: subsequent are such, by the failure or 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. Or, if a man grant to his lessee for years, that upon payment of a hundred marks within the term he shall have the fee, this also is a condition precedent, and the fee-simple passeth not till the hundred marks be paid. But 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. To this class may also be

*Cited, 55 Ga. 529, 531.

t-t Quoted, 2 Conn. 200; 7 Am. Dec. 266.

- Quoted, 70 N. Y. 309; 18 Johns. 177; 9 Am. Dec. 197; 31 Conn. 475. Cited, 45 Ind. 562; 1 Conn. 583; 35 N. H. 450; 3 Halst. 243; 9 Ind. 329; 68 Am. Dec. 644; 57 Ind. 562.

2-2 Quoted, 2 Conn. 200; 7 Am. Dec. 266; 1 Wis. 480. Cited, 12 N. Y. 131; 19 N. Y. 102; 4 Ga. 80; 28 Ga. 462.