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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 (f). 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 press qualifica
granted shall either commence, be enlarged, or be defeated, tion annexed to the grant.
upon performance or breach of such qualification or condition (g). These conditions are therefore either precedent, dr subsequent (5). Precedent are such as must happen or
(8) Co. Litt. 201.
(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 express 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 conditions, Lord Mans
given on condition, but leaves field said, is to be collected from the such conditional legacy in stalu 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. now 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,
be performed before the estate can vest or be enlarged: subsequent are such, by the failure or non-performance of
that, even as to personal bequests, if consent. In the same judgment it was the condition is confined within reason- also intimated, that it was unimportant able limits as to time; (Scott v. Tyler, whether there was or was not a devise 2 Dick. 723. Graydon v.' Hicks, 2 over; for, the portions there in quesAtk. 16); and does not go in entire tion, being to arise out of lands, had restraint of marriage; as also where it nothing testamentary in them, so as to is framed only to guard against a con- be subject to the jurisdiction of the nexion with a particular individual, or Ecclesiastical Courts, or the rules of family, which the testator deems ob- the civil law: (Harvey v. Aston, 1 jectionable; (Jarvis v. Duke, 1 Vern. Atk. 378, 379; S. C. Willes, 91): 19); in all such cases, the condition whether it was wise to adopt those must be complied with, or the legacy rules at all, may perhaps be question(though not given over) can never able; (Pearce v. Loman, 3 Ves. 139); vest; or at least not be payable: (El. but it has long been well established in ton v. Eason, 1 Ves. sen. 6. Knight point of practice, that a material differv. Cameron, 14 Ves. 392): for, such ence is made, as to portions out of lands cases necessarily exclude the only and merely personal legacies; and that grounds which can authorize courts of courts of equity, for uniforn ity of deequity to dispense with a strict per- cision in pari materia, follow the eccleformance of conditions precedent: siastical courts in the one case, and the (Hollinrake v. Lister, 1 Russ. 508): common law in the other. (Reynish v. but conditions which would, virtually, Martin, 3 Atk. 333. Pullen v. Ready, go almost to the total exclusion of 2 Atk. 590. Sheriff v. Mortlock, W. marriage, are void. (1 Eq. Ca. Ab. 108, Kelynge, 24. Co. Litt. 206). in margin. Keily v. Monck, 3 Ridg. P. It must be obvious, that the rules C. 263). Where legacies are charged applied to conditional bequests charged upon land, or the gift at all savours of upon real estate, will bear upon conthe realty, and is coupled with a con- ditional devises of the lands themdition, that condition must be per- selves. In Long v. Ricketts, (2 Sim. & formed, and the trusts carried into Stu. 179), which was the case of a deexecution in equity with analogy to vise of real estates to trustees, in trust the common law. (Scott v. Tyler, 2 to pay the rents and profits to the tesDick. 719. Long v. Ricketts, 2 Sim. tator's son, so long as he should con& Stu. 183). Lord Hardwicke held tinue unmarried, and to convey the esno rule to be better settled than the tates to him in case of his marriage with one which declares that portions charge the consent of the trustees; but in case ed on lands do not vest till the time he should marry against their consent, of payment comes; and if that time, then to sell the estates and divide the according to the will, be not until a proceeds amongst other persons:—the marriage with consent, (his Lordship son having married without the knowsaid), there is no rule, in law or equity, ledge of the trustees, who disapproved which can excuse the want of such the marriage when they heard of it; it
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 (h) 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 condi
(1) Show. Parl. Cas. 83, &c.
was held, that, the marriage having forfeiture). been had without the consent of the Equity will not allow any one to take trustees, though not against their advantage of a bequest over, who has consent, the devise over took effect. himself been instrumental in causing But, where a person devised his es- the breach of a condition. (Garrett v. tate to trustees, to the use of his son for Pretty, stated from Reg. Lib. in 3 life, with remainders over, and with a Meriv. 120. Clarke v. Parker, 19 Ves. proviso, that if the son should marry 12. D’Aguilar v. Drinkwater, 2 Ves. any woman not having a competent & Bea. 225). But, it is a general rule, portion, or, without the consent of the that where a condition is annexed by trustees first had, then his trustees will to a devise or bequest, and no one should stand seised of the premises to is bound to give notice of such condithe use of the testator's two daughters; tion, the parties must themselves take and he declared that the said proviso notice, and perform the condition, in or condition was not intended by him, order to avoid a forfeiture. (Chauncy v. or to be construed or taken to be in Graydon, 2 Atk. 619. Fry v. Porter, terrorem; but a condition in want of 1 Mod. 314. Burgess v. Robinson, 3 performance whereof in every respect Meriv. 9. Phillips v. Bury, Show. P. the estate should in no case be vested C. 50). Infancy will be no excuse, in in his son, it was determined that, as such case, for non-performance of the the son had married a woman with a condition. Bertie v. Lord Falkland, competent portion, though without the 2 Freem. 221. Lady Ann Fry's case, consent or approbation of the trustees, 1 Ventr. 200).
The application of this he had sufficiently satisfied the condi- general rule, however, is subject to one tion, by the performance of one of the restriction :—where a condition is anprescribed alternatives; for that, con- nexed to a devise of real estate to the ditions in restraint of marriage were not testator's heir at law, there notice of to be favoured, but ought to be con- the condition is necessary before he can strued with the utmost rigour and strict- incur a forfeiture; for, an heir at law ness to dispense with forfeitures. (Long will be supposed to have entered and v. Dennis, 4 Burr. 2054. O'Callaghan made claim by descent, not under the v. Cooper, 5 Ves. 125. See, however, will. (Burleton v. Homfray, Ambl. 259).
Clarke v. Parker, 19 Ves. 19, where it It may be right to observe, that se- is intimated that it is matter of doubt- veral parts of this note are extracted ful propriety to make words bend to from lovenden's notes to Vesey, junr's. construction, in order to get rid of a Reports.
tion precedent, and the fee-simple passeth not till the hundred marks be paid (i). 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 (k). To this class may also be referred all base fees, and fee-simples conditional at the common law (1) (6). Thus an estate to a man and his heirs, tenants of the manor of Dale, is an estate on condition that he and his heirs continue tenants of that manor. And so, if a personal annuity be granted at this day to a man and the heirs of his body, as this is no tenement within the statute of Westminster the second, it remains, as at common law, a fee-simple on condition that the grantee has heirs of his body. Upon the same principle depend all the determinable estates of freehold, which we mentioned in the eighth chapter: as durante viduitate, &c.: these are estates upon condition that the grantees do not marry (7), and the like. And, on the breach of any of these *subsequent [ * 155 ) conditions, by the failure of these contingencies; by the grantee's not continuing tenant of the manor of Dale, by not having heirs of his body, or by not continuing sole; the estates which were respectively vested in each grantee are wholly determined and void.
A distinction is however made between a condition in deed Distinction beand a limitation (8), which Littleton (m) denominates also a tion in a deed
tween a condi
and a limitation. (i) Co. Litt. 217.
(1) See pages 109, 110, 111. (k) Litt. s. 325.
(m) Sect. 380. 1 Inst. 234.
(6) See ante, section 2 to chapter 7, a condition, if it be broken, to give title (pp. 109-112), with the notes thereto. to the grantor, or those claiming from (7) See ante, note (5).
him the reversion of the lands: but a (8) A condition, properly so called, conditional limitation limits the estate annexed to an estate, differs from what over to a stranger, and of itself causes is called a conditional limitation in this the determination of the preceding parrespect, that it is the proper effect of ticular estate, without any act, such as