and a limitation (9), which Littleton (m) denominates also a condition in law. For when an estate is so expressly con (m) Sect. 380; 1 Inst. 234. (9) A condition, properly so called, annexed to an estate, differs from what is called a conditional limitation in this respect, that it is the proper effect of a condition, if it be broken, to give title to the grantor, or those claiming from him the reversion of the lands: but a conditional limitation limits the estate over to a stranger, and of itself causes the determination of the preceding particular estate, without any act, such as entry or claim, to be done or made by him who has the next expectant interest: whereas, in the case of an estate upon condition, properly so called, advantage must be taken of the breach thereof, by the activity of the grantor, his heirs or assigns. (Wooddeson, 24th Vin. Lect.) A conditional limitation partakes of the nature both of a condition and of a remainder. It is to be observed, that it was formerly held, whenever the whole fee, or even freehold, was first limited, no condition or other quality could be annexed to this prior estate to defeat it, so as to pass the estate to a stranger. For, as a remainder it was void, being in abridgment or defeazance of the estate first limited : and as a condition it was void, since no one (it was held) but the donor or his heirs could take advantage of a condition broken, and an entry by them unavoidably defeated the livery upon which the remainder to the stranger depended. On these principles, it was impossible by the old law to limit (by deed, at all events, whether it could be done by will or not,) an estate to a stranger upon any event which went to abridge or determine an estate previously limited. But, the convenience of such limitations has established them; and under the doctrine of uses, and of executory trusts, such limitaVOL. II. tions are now permitted to take effect. They partake of the nature of conditions, inasmuch as they defeat the estates previously limited; and they are so far limitations, as upon the contingency taking place the estate passes to a stranger. (Hargr. note 1 to Co. Litt. 203 b.) Conditional limitations in many respects resemble contingent remainders; and Mr. Douglas, (in his note to Goodtitle v. Billington, 2 Dougl. 755,) even intimates that the distinction between the two interests is merely verbal. But this is strenuously denied, and indeed conclusively disproved, by Mr. Fearne, (in his learned essay on Contingent Remainders, chap. 1, sect. 3, chap. 2, sect. 6,) and by Mr. Butler (in his notes on the passages just cited). From them we learn, that the substantial distinction between conditional limitations and contingent remainders is this: the effect of a conditional limitation always is to abridge or defeat a preceding estate; but it is essential to an estate in remainder, that it should wait the regular expiration of the particular estate. The period at which that regular expiration will take place, or whether it will ever take place, may be dubious and contingent; but if its determining qualities are not extrinsic and merely collateral to the original limitation of the particular estate, but are incorporated into and make part of such limitation, those determining qualities contribute to form the original measure of the particular estate: and when the determining event happens, so that the first estate ceases, before the period at which, without the introduction of such determining quality, it would have expired, still it is equally sup S fined and limited by the words of its creation, that it cannot endure for any longer time than till the contingency happens upon which the estate is to fail, this is denominated a limitation: as when land is granted to a man so long as he is parson of Dale, or while he continues unmarried, or until out of the rents and profits he shall have made 5007. and the real estate, in which, if the precedent limitation, by any means whatsoever, were put out of the case, the subsequent limitation must not take place. (Avelyn v. Ward, 1 Ves. sen. 422.) But, where a different exposition is not necessary to give effect to the intention of a testator, plain words of condition must be expounded, and have effect given to them according to the common law. (Curtis v. Wolverston, Cro. Jac. 57.) All courts, however, are disposed, as far as the rules of law admit, to aid, by construction, the intention of a testator: if, therefore, in a will, there be no express limitation over, to take effect upon the breach of a proviso annexed to the preceding estate, although such proviso is so framed as to admit its being construed as a limitation, it may be considered as a condition, if that construction will best answer the apparent intention of the devisor; (Gulliver v. Ashby, 4 Burr. 1943; and see Miles v. Leigh, 1 Atk. 574;) as, on the other hand, words of apparent condition may be controlled by the context; and, as we have seen, either be understood as words of limitation, (Murray v. Jones, 2 Ves. & Bea. 320, 322; Meadows v. Parry, 1 Ves. & Bea. 124; Pearsall v. Simpson, 15 Ves. 33; Lane v. Goudge, 9 Ves. 230,) In order to give effect to a remainder over, (Andrews v. Fulham, 2 Str. 1092; Murray v. Jones, 2 Ves. & Bea. 320,) or to make a testator's whole disposition of his estate consistent, technical words, which in a deed would create a condition, may, in a testamentary instrument, be construed as words of limitation. (Newes et Ux. v. Lark and Hunt, commonly cited as Scolastica's case, Plowd. 412; Rundall v. Eeley, Carter's Rep. temp. Bridgm. 171; Boraston's case, 3 Rep. 21 a.; Haynsworth v. Pretty, Cro. Eliz. 833, 920; Simpson v. Vickers, 14 Ves. 346.) Lord Kenyon observed, there are many cases in which devises, sounding conditionally, have not been considered as dependent on a preceding condition, but in which the party has taken the benefit devised, whether the event alluded to in con.. nexion with the gift has happened or not. (Parry v. Boodle, 1 Cox, 184, citing Jones v. Westcomb, Prec. in Cha. 316, and Gulliver v. Wicket, 1 Wils. 105.) And Lord Hardwicke said, he knew no case of a remainder or conditional limitation over, of like (n). In such cases the estate determines as soon as the contingency happens, (when he ceases to be parson, marries a wife, or has received the 5007.,) and the next subsequent estate, which depends upon such determination, becomes immediately vested, without any act to be done by him who is next in expectancy. But when an estate is, strictly speaking, upon condition in deed (as if granted expressly upon condition to be void upon the payment of 407. by the grantor, or so that the grantee continues unmarried, or provided he goes to York, &c. (o)), the law permits it to endure beyond the time when such contingency happens, unless the grantor or his heirs or assigns take advantage of the breach of the condition, and make either an entry or a claim in order to avoid the estate (p). But, though strict words of condition be used in the creation of the estate, yet, if on breach of the condition the estate be limited over to a third person, and does not immediately revert to the grantor or his representatives, (as if an estate be granted by A. to B., on condition that within two years B. intermarry with C., and on failure thereof then to D. and his heirs,) this the law construes to be a limitation and not a *condition (q): because, if it were [156] a condition, then, upon the breach thereof, only A. or his representatives could avoid the estate by entry, and so D.'s remainder might be defeated by their neglecting to enter; but, when it is a limitation, the estate of B. determines, and that of D. commences, and he may enter on the lands, the instant that the failure happens. So also, if a man by his will devises land to his heir at law, on condition that he pays a sum of money, and for non-payment devises it over, this shall be considered as a limitation; otherwise no advantage could be taken of the non-payment, for none but the heir himself could have entered for a breach of condition (r). the tenant's in In all these instances, of limitations or conditions subse- of the nature of quent, it is to be observed, that so long as the condition, terest. either express or implied, either in deed or in law, remains unbroken, the grantee may have an estate of freehold, provided the estate upon which such condition is annexed be in (n) 10 Rep. 41. (0) Ibid. 42. (p) Litt. s. 347; Stat. 32 Hen. VIII. (q) 1 Vent. 202. (r) Cro. Eliz. 205; 1 Roll. Abr. 411. c. 34. Conditions how avoided. itself of a freehold nature; as if the original grant express either an estate of inheritance, or for life; or no estate at all, which is constructively an estate for life. For, the breach of these conditions being contingent and uncertain, this uncertainty preserves the freehold (s); because the estate is capable to last for ever, or at least for the life of the tenant, supposing the condition to remain unbroken. But where the estate is at the utmost a chattel interest, which must determine at a time certain, and may determine sooner, (as a grant for ninety-years, provided A. B. and C. or the survivor of them, shall so long live,) this still continues a mere chattel, and is not, by such its uncertainty, ranked among estates of freehold. These express conditions, if they be impossible at the time of their creation, or afterwards become impossible by the act of God or the act of the feoffor himself, or if they be contrary to law, or repugnant (10) to the nature of the estate, are void. In any of which cases, if they be conditions [* 157 ] subsequent, that *is, to be performed after the estate is vested, the estate shall become absolute in the tenant. As, if a feoffment be made to a man in fee-simple, on condition that, unless he goes to Rome in twenty-four hours, or unless he marries with Jane S. by such a day, (within which time the woman dies, or the feoffor marries her himself,) or unless he kills another, or in case he alienes in fee; then and in any of such cases the estate shall be vacated and determined: here the condition is void, and the estate made absolute in the feoffee. For he hath by the grant the estate vested in him, which shall not be defeated afterwards by a condition either impossible, illegal, or repugnant (t). But if the condition be precedent, or to be performed before the estate vests, as a grant to a man that, if he kills another or goes to Rome in a day, he shall have an estate in fee; here, the void condition being precedent, the estate which depends. thereon is also void, and the grantee shall take nothing by (s) Co. Litt. 42. (10) Conditions which are repugnant to a previous gift or limitation, are void. (Bradley v. Peixoto, 3 Ves. 325; Britton v. Twining, 3 Meriv. 184.) A fortiori conditions subse (t) Co. Litt. 206. quent, which are impossible to be performed, or which are illegal, are merely nugatory. (Mildmay's case, 6 Rep. 41 a; Mary Portington's case, 10 Rep. 39 a.) the grant; for he hath no estate until the condition be performed (u) (11). There are some estates defeasible upon condition subsequent, that require a more peculiar notice. Such are, held in pledge. III. Estates held in vadio, in gage, or pledge: which are III. Estates of two kinds, vivum vadium, or living pledge; and mortuum vadium, dead pledge, or mortgage. or living pledge. Vivum vadium, or living pledge, is when a man borrows Vivum radium, a sum (suppose 2007.) of another, and grants him an estate, as of 201. per annum, to hold till the rents and profits shall repay the sum so borrowed. This is an estate conditioned to be void, as soon as such sum is raised. And in this case the land or pledge is said to be living; it subsists and survives the debt; and, immediately on the discharge of that, results back to the borrower (w) (12). But mortuum va- Mortuum vadium, or mortdium, a dead pledge, or mortgage, (which is much more gage. common than the other,) is where a man borrows of another a specific sum (e. g. 2007.) *and grants him an estate in fee, [ on condition that if he, the mortgagor, shall repay the mortgagee the said sum of 2007. on a certain day mentioned in the deed, that then the mortgagor may re-enter on the estate so granted in pledge; or, as is now the more usual way, that then the mortgagee shall reconvey the estate to (u) Co. Litt. 206. (11) The Court of Chancery has in many cases interposed to moderate the rigour of the common law, with respect to the consequences of breaches of conditions: and it seems to be settled, that the substantial difference which guides courts of equity in granting or refusing their interference, is a consideration, not whether the conditions be precedent or subsequent, but whether a compensation for the breach thereof can, or cannot, be made. (Hayward v. Angell, 1 Vern. 222; Wafer v. Mocatto, 9 Mod. 113; Grimstone v. Lord Bruce, 1 Salk. 156.) (12) In cases of this kind (which are termed Welsh mortgages,) as the proviso for redemption does not oblige the mortgagor to pay the money on a (w) Co. Litt. 205. particular day, but allows him an in- * 158 ] |