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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 (1); being such whose existence

(1) As to things executed, (a con- make a condition in a deed, provided veyance of lands, for instance), a con- a power of entry is added. Without dition, to be valid, must be created the reservation of such a power, the and annexed to the estate at the time words “if it happen” will not alone, that it is made, not subsequently; the and by their own force, make a good condition may, indeed, be contained condition. This distinction is also in a separate instrument, but then, noticed in Sheph. Touch. 122, where that must be sealed and delivered it is also laid down, that although the at the same time with the principal words "proviso," "so that,” and “on deed. (Co. Litt. 236 b. Touch. 126). condition,” are the most proper words As to things executory, (such as rents, to make a condition; yet they have annuities, &c.), a grant of them may not always that effect, but frequently be restrained by a condition created serve for other purposes; sometimes after the execution of such grant. (Co. they operate as a qualification or limiLitt. 237 a). Littleton (in his 328th tation, sometimes as a covenant. And and three following sections) says, di- when inserted among the covenants in vers words there be, which, by virtue a deed, they operate as a condition, of themselves, make estates upon con. only when attended with the following dition. Not only the express words, circumstances: 1st. When the clause

upon condition," but also the words wherein they are found is a substan“ provided always,” or “so that,” will tive one, having no dependence upon make a feoffment, or deed, conditional. any other sentence in the deed, or And again (in his 331st section) he rather, perhaps, not being used merely says, the words "if it happen" will in qualification of such other sentence,

depends upon the happening or not happening of some uncertain event, whereby the estate may be either originally created, or enlarged (2), or finally defeated (a) (3). And

(a) Co. Litt. 201.

but standing by itself. 2nd. When it is The word " if” frequently creates a compulsory upon the feoffee, donee, or condition, but not always; for somelessee. 3rd. When it proceeds from the times it makes a limitation; as where part of the feoffor, donor, or lessor, and a lease is made for years, if A. B. shall declares his intention. (but as to this so long live. Conditions may be anpoint, see Whichcote v. Fox, Cro. Jac. nexed to demises for years, without 398. Cromwell's case, 2 Rep. 72. and any of these formal words, where the infra). 4th. When it is applied to the intent that the estate should be conestate, or other subject matter.

ditional is apparent. (Co. Litt. 204 a, The word "provided” may operate 214 b. Sheph. Touch. 123). as a condition and also a covenant: (2) A particular estate may be lithus, if the words are, “provided al- mited, with a condition, that, after the ways, and the feoffee doth covenant” happening of a certain event, the perthat neither he nor his heirs shall do son to whom the first estate is limited such an act; this, if by indenture, is shall have a larger estate. Such a both a condition and a covenant, for condition may be good and effectual, the words will be considered as the as well in relation to things which lie in words of both parties. (Whichcote v. grant, as to things which lie in livery, Fox, Cro. Jac. 398). But if the clause and may be annexed as well to an have dependence on another clause in estate-tail, which cannot be drowned, the deed, or be the words of the as to an estate for life or years, which feoffee to compel the fenffor to do some- may be merged by the access of a thing; then it is not a condition, but a greater estate. But, such increase of covenant only. So, if the clause be an estate by force of such a condition, applied to some other thing, and not to ought to have four incidents. 1. There the substance of the thing granted, must be a particular estate as a founthen it is no condition. As, if a lease dation for the increase to take effect be made of land, rendering rent at B., upon; which particular estate, Lord provided that if such a thing happen it Coke held, must not be an estate at shall be paid at C., this does not make will, nor revocable, nor contingent. the estate conditional. And a proviso 2. Such particular estate ought to conthat a lessor shall not distrain for rent, tinue in the lessee or grantee, until the may be a good condition to bind him; increase happens, or at least no alterabut not a condition annexed to the tion in privity of estate must be made estate. (See Co. Litt. 203 b. Engle- by alienation of the lessee or grantee; field's case, Moor, 307, s. C. 7 Rep. though the alienation of the lessor or 78. Berkeley v. The Earl of Pem- grantor will not affect the condition; broke, Moor, 707, S. C. Cro. Eliz. 206, and the alteration of persons by de560. Browning v. Beeston, Plowd. 131). scent of the reversion to the heirs of

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

I. Estates upon condition implied in law, are where a condition implied in law, are

grant of an estate has a condition annexed to it inseparably where the grant from its essence and constitution, although no condition be has (though unexpressed) a expressed in words. As if a grant be made to a man of an nexed to it, from office, generally, without adding other words; the law ta

citly annexes hereto a secret condition, that the grantee shall

duly execute his office (6) (4), on breach of which condition [ 153 ] *it is lawful for the grantor, or his heirs, to oust him, and

grant it to another person (c). For an office, either public

its nature.

(6) Litt. s. 378.

(C) Ibid. s. 379.

the grantor, or his alienee, or of the effect from one and the same instruparticular estate to the representatives ment, or from several deeds delivered of the grantee, will not avoid the con- at one and the same time. (Lord dition. Neither need such increase Stafford's case, 8 Rep. 149–153). take place immediately upon the par- (3) It is a rule of law, that a conticular estate, but may enure as a re- dition, the effect of which is to defeat mainder the donee of the particular or determine an estate to which it is estate, or his representatives, subse- annexed, must defeat the whole of such quent to an intermediate remainder to estate; not determine it in part only, somebody else. 3. The increase must leaving it good for the residue; (Jere vest and take effect immediately upon min v. Arscot, stated by Chief Justice the performance of the condition; for, Anderson, in Corbet's case, 1 Rep. 85 b. if an estate cannot be enlarged at the and see Ibid. 86 b. Chudleigh's case, 1 very instant appointed for its enlarge- Rep. 138 b). ment, the enlargement shall never (4) Bartlett v. Downes, 3 Barn. & take place. 4. The particular estate Cress. 619; S C. 5 Dowl. & Ryl. 529. and the increase ought to derive their

or private, may be forfeited by mis-user or non-user, both of which are breaches of this implied condition. 1. By misuser, 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 (d). 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 (s). 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 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 II. Estates upon where an estate is granted, either in fee-simple or otherwise, pressed are where


(d) Co. Litt. 233.

(e) 9 Rep. 50.

(8) Co. Litt. 215.

there is an ex- with an express qualification annexed, whereby the estate tion annexed to granted shall either commence, be enlarged, or be defeated,

upon performance or breach of such qualification or condition (g). These conditions are therefore either precedent, or subsequent (5). Precedent are such as must happen or

(g) Co. Litt. 201.

the grant.

(5) Even at common law, and in the condition is void and merely in terconstruction of a deed, no precise rorem; (Reynish v. Martin, 3 Atk. technical words necessarily make a 332. Hicks v. Pendarvis, 2 Freem. stipulation precedent or subsequent: 41); unless there be also a valid devise neither does it depend upon the cir- over of the particular legacy; or, at cumstance whether the clause has a least, it should seem, unless the will prior or a posterior place in the deed, contain an erpress direction that such so that it takes effect as a proviso. For, legacy, if the condition annexed thereto the same words have been construed be not complied with, shall sink into to operate either as a precedent or as a the residue of the testator's property. subsequent condition, according to the (Wheeler v. Bingham, 3 Atk. 368. nature of the transaction. (Hotham v. Lloyd v. Branton, 3 Meriv. 118. MalThe East India Company, 1 T. R. colm v. O'Callaghan, 2 Mad. 350). 645. Acherley v. Vernon, Willes, 156). A mere general residuary bequest is The dependence, or independence, of not tantamount to a devise over of a covenants or conditions, Lord Mans- legacy given on condition, but leaves field said, is to be collected from the such conditional legacy in statu quo, evident sense and meaning of the par- and can have no other effect but that ties; and however transposed they may of preventing what proves not to be be in a deed, their precedency must otherwise well disposed of from falling, depend upon the order of time in which by order of law, to the executor or the intent of the transaction requires next of kin. (Scott v. Tyler, 2 Dick. their performance. (Jones v. Barkley, 723). 2 Dougl. 691).

Whether a condition precedent, in Such being the rule of common law, restraint of marriage, annexed to pera fortiori, in courts of equity, and in sonal legacies, can be considered as the construction of wills, no technical in terrorem only, where there is no words are held to distinguish precedent express limitation over, is a point and subsequent conditions: the same upon which great diversity of judiwords may, indifferently, constitute cial opinion has been declared: where either; according to the intention of there is a valid devise over, there the person who creates the condition,

be no doubt it will take (Robinson v. Comyns, Ca. temp. Talb. effect, if the condition be not com165. Murray v. Jones, 2 Ves. & Bea. plied with: (Clarke v. Perrier, 19 320). Where a legacy is given, to Ves. 14): and even where there is not which a condition subsequent, in re- an express devise over, the prepondestraint of marriage, is annexed, the rance of authority seems to establish,



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