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 [*156] be a limitation and not a *condition (7): because, if it were 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 con Of the nature of the tenant's in terest. dition (r). In all these instances, of limitations or conditions subse quent, it is to be observed, that so long as the condition, 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 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-nine 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. avoided. These express conditions, if they be impossible at the Conditions how 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 (9) to the nature of the estate, are void. In any of which cases, if they be conditions subsequent, that is, to be performed after the estate is vest- [ 157 ] ed, 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: (s) Co. Litt. 42. (9) 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 subsequent, which are impos sible to be performed, or which are il- III. Estates 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 the grant; for he hath no estate until the condition be performed (u) (10). 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 held in pledge. of two kinds, vivum vadium, or living pledge; and mortuum vadium, dead pledge, or mortgage. Vivum vadium, or living pledge. mortuum vadium, or mortgage. Vivum vadium, or living pledge, is when a man borrows a sum (suppose 2001.) of another, and grants him an estate, as of 201. per annum, to hold till the rents asd 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) (11). But mortuum va (t) Co. Litt. 206. (n) Ibid. (w) Co. Litt. 205. (10) The Court of Chancery has in many cases interposed to moderate the rigour of the common law, in 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 prece dent or subsequent, but whether a compensation for the breach thereof can, or cannot, be made. (Hayward v. Angell, 1 Vern. 222. Wafer v. Mocat to, 9 Mod. 113. Grimstone v. Lord Bruce, 1 Salk. 156). (11) 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 particular day, but allows him an indefinite time for so doing; courts of equity will effectuate the agreement of the parties, and a redemption will be decreed at any time within twenty years after the debt has been fully satisfied and paid. (Ord v. Heming, 1 dium, a dead pledge, or mortgage, (which is much more 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 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 the mortgagor: in this case, the land which is so put in pledge, is by law, in case of non-payment at the time limited, for ever dead and gone from the mortgagor; and the mortgagee's estate in the lands is then no longer conditional, but absolute. But, so long as it continues conditional, that is, between the time of lending the money, and the time allotted for payment, the mortgagee is called tenant in mortgage (x). But as it was formerly a doubt (y), whether, by taking such estate in fee, it did not become liable to the wife's dower (12), and other incumbrances, of the mortgagee, (though that doubt has been long ago over-ruled by our courts of equity (≈),) it therefore became usual to grant only a long term of years by way of mortgage; with condition to be void on re-payment of the mortgage-money: which course has been since pretty generally continued, principally because on the death of the mortgagee such term becomes vested in his personal representatives, who alone are entitled in equity to receive the money lent, of whatever nature the mortgage may happen to be. As soon as the estate is created, the mortgagee may im- Of the equity of (x) Litt. s. 332. (y) Ibid. s. 357. Cro. Car. 191. (z) Hardr. 466. redemption in mortgages. Vern. 418. Howell v. Price, Prec. in Cha. 424. Yates v. Hambly, 2 Atk. 363. Fenwick v. Reed, 1 Meriv. 120, 125). This perpetual right of redemption, however, may be lost by a subsequent agreement, putting it in the power of the mortgagee to limit the time within which the mortgage debt must (12) See ante, note (39) to chapter 8. mediately enter on the lands; but is liable to be dispossessed upon performance of the condition by payment of the mortgage-money at the day limited. And therefore the usual way is to agree that the mortgagor shall hold the land till the day assigned for payment; when, in case of failure, whereby the estate becomes absolute, the mortgagee may enter upon it and take possession, without any possibility at law of being afterwards evicted by the mortgagor, to whom the land is now for ever dead. But here again the courts of equity interpose; and, though a mortgage be thus forfeited, and the [159] *estate absolutely vested in the mortgagee at the common law, yet they will consider the real value of the tenements compared with the sum borrowed. And, if the estate be of greater value than the sum lent thereon, they will allow the mortgagor at any reasonable time (13) to recall or redeem his (13) The policy of the statute of li- be shewn to have been treated as a Coop. 4. S. C. 2 Cox, 300. Barren v. Martin, 19 Ves. 327). But to shew that an estate has been treated as one affected by a subsisting mortgage, within twenty years immediately preceding a bill brought for redemption, parol evidence is admissible. (Reeks v. Postlethwaite, Coop. 170. Perry v. Marston, cited 2 Cox, 295. Edsell v. Buchanan, 2 Ves. jun. 84). In the case of Montgomery v. The Marquis of Bath, (3 Ves. 560), a decree was made for a foreclosure as to the share of one of several joint mortgagees: but, it is to be observed, no opposition was made by the mortgagor in that case; and it is very doubtful whether a decree for a partial foreclosure ought ever to be made. (See Cockburn v. Thompson, 16 Ves. 324, n.) It is, at all events, certain, there can be no foreclosure or redemption, unless the whole of the parties entitled to any share of the mortgage money are before the court: (Lowe v. Morgan, 1 Br. 368. Palmer v. The Earl of Carlisle, 1 |