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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, tions are now permitted to take efannexed to an estate, differs from what fect. is called a conditional limitation in this They partake of the nature of conrespect, that it is the proper effect of ditions, inasmuch as they defeat the a condition, if it be broken, to give estates previously limited; and they title to the grantor, or those claiming are so far limitations, as upon the confrom him the reversion of the lands : tingency taking place the estate passes but a conditional limitation limits the to a stranger. (Hargr. note 1 to Co. estate over to a stranger, and of itself Litt. 203 b.) Conditional limitations causes the determination of the pre- in many respects resemble contingent ceding particular estate, without any remainders; and Mr. Douglas, (in his act, such as entry or claim, to be done note to Goodtitle v. Billington, 2 or made by him who has the next ex- Dougl. 755,) even intimates that the pectant interest : whereas, in the case distinction between the two interests of an estate upon condition, properly is merely verbal. But this is strenuso called, advantage must be taken of ously denied, and indeed conclusively the breach thereof, by the activity of disproved, by Mr. Fearne, (in his the grantor, his heirs or assigns. learned essay on Contingent Re(Wooddeson, 24th Vin. Lect.) mainders, chap. 1, sect. 3, chap. 2,

A conditional limitation partakes of sect. 6,) and by Mr. Butler (in his the nature both of a condition and of notes on the passages just cited). a remainder. It is to be observed, that From them we learn, that the substanit was formerly held, whenever the tial distinction between conditional whole fee, or even freehold, was first limitations and contingent remainders limited, no condition or other quality is this : the effect of a conditional licould be annexed to this prior estate mitation always is to abridge or defeat to defeat it, so as to pass the estate to a preceding estate ; but it is essential a stranger. For, as a remainder it was to an estate in remainder, that it void, being in abridgment or defeaz- should wait the regular expiration of ance of the estate first limited : and as the particular estate. The period at a condition it was void, since no one which that regular expiration will take (it was held) but the donor or his heirs place, or whether it will ever take could take advantage of a condition place, may be dubious and contingent; broken, and an entry by them un- but if its determining qualities are not avoidably defeated the livery upon extrinsic and merely collateral to the which the remainder to the stranger original limitation of the particular depended. On these principles, it was estate, but are incorporated into and impossible by the old law to limit (by make part of such limitation, those deed, at all events, whether it could determining qualities contribute to be done by will or not,) an estate to a form the original measure of the parstranger upon any event which went ticular estate: and when the deterto abridge or determine an estate pre- mining event happens, so that the first viously limited. But, the convenience estate ceases, before the period at of such limitations has established which, without the introduction of them; and under the doctrine of uses, such determining quality, it would and of executory trusts, such limita- have expired, still it is equally sup

VOL. II.

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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 5001. and the

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posed to have filled its original mea- real estate, in which, if the presure, and to expire at the time origi- cedent limitation, by any means nally fixed for its expiration. The whatsoever, were put out of the case, next limitation, consequently, will the subsequent limitation must not take effect as a remainder, not as a take place. (Avelyn v. Ward, 1 Ves. conditional limitation. Perhaps the sen. 422.) But, where a different exdifference is artificial, and such as position is not necessary to give effect common sense alone would not teach ; to the intention of a testator, plain but in legal construction, and in se- words of condition must be expounded, veral legal consequences of great im- and have effect given to them accordportance to the interests of the parties ing to the common law. (Curtis v. claiming under such limitations, the Wolverston, Cro. Jac. 57.) All courts, distinction is established.

however, are disposed, as far as the In order to give effect to a remain- rules of law admit, to aid, by conder over, (Andrews v. Fulham, 2 Str. struction, the intention of a testator: 1092; Murray v. Jones, 2 Ves. & Bea. if, therefore, in a will, there be no ex320,) or to make a testator's whole press limitation over, to take effect disposition of his estate consistent, upon the breach of a proviso annexed technical words, which in a deed to the preceding estate, although such would create a condition, may, in a proviso is so framed as to admit its testamentary instrument, be construed being construed as a limitation, it may as words of limitation. (Newes et Ux. be considered as a condition, if that v. Lark and Hunt, commonly cited as construction will best answer the apScolastica's case, Plowd. 412; Run- parent intention of the devisor ; (Gul. dall v. Eeley, Carter's Rep. temp.

Ashby, 4 Burr. 1943; and see Bridgm. 171; Boraston's case, 3 Rep. Miles v. Leigh, 1 Atk. 574 ;) as, on 21 a.; Haynsworth v. Pretty, Cro. the other hand, words of apparent Eliz. 833, 920; Simpson v. Vickers, condition may be controlled by the 14 Ves. 346.) Lord Kenyon ob- context; and, as we have seen, either served, there are many cases in which be understood as words of limitation, devises, sounding conditionally, have (Murray v. Jones, 2 Ves. & Bea. 320, not been considered as dependent on a 322; Meadows v. Parry, 1 Ves. & preceding condition, but in which the Bea. 124; Pearsall v. Simpson, 15 party has taken the benefit devised, Ves. 33; Lane v. Goudge, 9 Ves. 230,) whether the event alluded to in con- or, under peculiar circumstances, as nexion with the gift has happened or raising a trust only. (Taylor v. George, not. (Parry v. Boodle, 1 Cox, 184, 2 Ves. & Bea. 381; Oke v. Heath, 1 citing Jones v. Westcomb, Prec. in Ves. sen. 135.) The extract from Reg. Cha. 316, and Gulliver v. Wicket, 1 Lib. which Mr. Belt has inserted in Wils. 105.) And Lord Hardwicke his Supplem. makes the last cited case said, he knew no case of a remainder still stronger, as it appears the testator or conditional limitation over, of used words of express condition.

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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 500l.,) 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 401. 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 (9): 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).

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

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the tenant's in

(n) 10 Rep. 41.
(0) Ibid. 42.
(p) Litt. s. 347; Stat. 32 Hen. VIII.

(9) 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 uncer-
tainty 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 sur-
vivor 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 es-

tate, 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

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(10) Conditions which are repug- quent, which are impossible to be pernant to a previous gift or limitation, formed, or which are illegal, are merely are void. (Bradley v. Peixoto, 3 Ves. nugatory. (Mildmay's case, 6 Rep. 41 325 ; Britton v. Twining, 3 Meriv. a; Mary Portington's case, 10 Rep. 184.) A fortiori conditions subse

39 a.)

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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, III. Estates held in vadio, in gage, or pledge: which are a Estates

held in pledge. of two kinds, vivum vadium, or living pledge; and more tuum vadium, dead pledge, or mortgage. Vivum vadium, or living pledge, is when a man borrows Vivum vadium,

or living pledge. a sum (suppose 2001.) 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 radium, 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. 2001.) *and grants him an estate in fee, [ * 158 ] on condition that if he, the mortgagor, shall repay the mortgagee the said sum of 2001. 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

dium, or mort

(4) Co. Litt. 206.

(w) Co. Litt. 205.

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(11) The Court of Chancery has in particular day, but allows him an inmany cases interposed to moderate definite time for so doing ; courts of the rigour of the common law, with equity will effectuate the agreement of respect to the consequences of breaches the parties, and a redemption will be of conditions : and it seems to be set- decreed at any time within twenty tled, that the substantial difference years after the debt has been fully sawhich guides courts of equity in tisfied and paid. (Ord v. Heming, 1 granting or refusing their interference, Vern. 418; Howell v. Price, Prec. in is a consideration, not whether the Cha. 424; Yates v. Hambly, 2 Atk. conditions be precedentor subsequent, 363 ; Fenwick v. Reed, 1 Meriv. 120, but whether a compensation for the 125.) This perpetual right of redempbreach thereof can, or cannot, be tion, however, may be lost by a subsemade. (Hayward v. Angell, 1 Vern. quent agreement, putting it in the 222; Wafer v. Mocatto, 9 Mod. 113; power of the mortgagee to limit the Grimstone v. Lord Bruce, 1 Salk. time within which the mortgage debt 156.)

must be repaid, or the equity of re(12) In cases of this kind (which demption become liable either to a are termed Welsh mortgages,) as the decree of foreclosure, or to be lost by proviso for redemption does not oblige length of time. (Hartpole v. Walsh, the mortgagor to pay the money on a 4 Br. P. C.381, fol. edit.)

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