the estate may be either originally created, or enlarged, or finally defeated.(a)' (") Co. Litt. 201. must be created and annexed to the estate at the time that it is made, not subsequently: the condition may, indeed, be contained in a separate instrument, but then that must be sealed and delivered at the same time with the principal deed. Co. Litt. 236, b. Touch 126. As to things executory, (such as rents, annuities, &c.) a grant of them may be restrained by a condition created after the execution of such grant. Co. Litt. 237, a. Littleton (in his 328th and three following sections) says, divers words there be, which, by virtue of themselves, make estates upon condition. Not only the express words " upon condition," but also the words "provided always," or "so that," will make a feoffinent or deed conditional. And again, (in his 331st section,) he says, the words "if it happen" will make a condition in a deed, provided a power of entry is added. Without the reservation of such a power, the words "if it happen" will not alone, and by their own force, make a good condition. This distinction is also noticed in Shep. Touch. 122, where it is also laid down that although the words "proviso,' so that," and "on condition" are the most proper words to make a condition, yet they have not always that effect, but frequently serve for other purposes: sometimes they operate as a qualification or limitation, sometimes as a covenant. And when inserted among the covenants in a deed, they operate as a condition only when attended by the following circumstances:-1st. When the clause wherein they are found is a substantive one, having no dependence upon any other sentence in the deed, or rather, perhaps, not being used merely in quali. fication of such other sentence, but standing by itself. 2d. When it is compulsory upon the feoffee, donee, or lessee. 3d. When it proceeds from the part of the feoffor, donor, or lessor, and declares his intention, (but, as to this point, see Whichcote vs. Fox, Cro. Jac. 398. Cromwell's case, 2 Rep. 72, and infra.) 4th. When it is applied to the estate or other subject-matter. 39 66 The word "provided" may operate as a condition and also a covenant. Thus, if the words are "provided always, and the feoffee doth covenant," that neither he nor his heirs shall do such an act; this, if by indenture, is both a condition and a covenant, for the words will be considered as the words of both parties. Whichcote vs. Fox, Cro. Jac. 398. But if the clause have dependence on another clause in the deed, or be the words of the feoffee to compel the feoffor to do something, then it is not a condition, but a covenant only. So, if the clause be applied to some other thing, and not to the substance of the thing granted, then it is no condition. As, if a lease be made of land, rendering rent at B., provided that if such a thing happen it shall be paid at C., this does not make the estate conditional. And a proviso that a lessor shall not distrein for rent may be a good condition to bind him; but not a condition annexed to the estate. See Co. Litt. 203, b. Englefield's case, Moor, 307, S. C. 7 Rep. 78. Berkeley vs. The Earl of Pembroke, Moor, 707, S. C. Cro. Eliz. 306, 560. Browning vs. Beeston, Plowd. 131. The word “if” frequently creates a condition, but not always; for sometimes it makes a limitation, as where a lease is made for years, if A. B. shall so long live. Conditions may be annexed to demises for years without any of these formal words, where the intent that the estate should be conditional is apparent. Co. Litt. 204, a., 214, b. Shep. Touch. 123.-CHITTY. A particular estate may be limited with a condition that, after the happening of a certain event, the person to whom the first estate is limited shall have a larger estate. Such a condition may be good and effectual as well in relation to things which lie in grant as to things which lie in livery, and may be annexed as well to an estate-tail, which cannot be drowned, as to an estate for life or years, which may be merged by the access of a greater estate. But such increase of an estate by force of such a condition ought to have four incidents. 1. There must be a particular estate as a foundation for the increase to take effect upon; which particular estate, lord Coke held, must not be an estate at will, nor revocable, nor contingent. 2. Such particular estate ought to continue in the lessee or grantee until the increase happens, or at least no alteration in privity of estate must be made by alienation of the lessee or grantee; though the alienation of the lessor or grantor will not affect the condition; and the alteration of persons by descent of the reversion to the heirs of the grantor, or his alienee, or of the particular estate to the representatives of the grantee, will not avoid the condition. Neither need such increase take place immediately upon the particular estate, but may enure as a remainder to the donee of the particular estate, or his representatives, subsequent to an intermediate remainder to somebody else. 3. The increase must vest and take effect immediately upon the performance of the condition; for, if an estate cannot be enlarged at the very instant appointed for its enlargement, the enlargement shall never take place. 4. The particular estate and the increase ought to derive their effect from one and the same instrument, or from several deeds delivered at one and the same time. Lord Stafford's case, 8 Rep. 149-153.-CHITTY. It is a rule of law that a condition he effect of which is to defeat or determine an And these conditional estates I have chosen to reserve till last, because they arc 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 condition implied in law, are where a grant of an estate has a condition annexed to it inseparably, from its essence and constitution, although no condition be expressed in words. As if a grant be made to a man of an office, generally, without adding other words; the law tacitly annexes hereto a secret condition, that the grantee shall duly execute his office, (b) on breach of which condition *it is lawful for the grantor, or his heirs, to oust him, *153] and grant it to another person.(c) For an office, either public or private, may be forfeited by mis-user or non-user, both of which are breaches of this im. plied condition. 1. By mis-user, or abuse; as if a judge takes a bribe, or a parkkeeper 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. *II. An estate on condition expressed in the grant itself is where an *154] estate is granted, either in fee-simple or otherwise, with an express qualifi cation annexed, whereby the estate granted shall either commence, be enlarged, or be defeated, upon performance or breach of such qualification or condition.(g) estate to which it is annexed must defeat the whole of such estate, not determine it in part only, leaving it good for the residue. Jermin vs. Arscot, stated by chief-justice Anderson in Corbet's case, 1 Rep. 85, b.; and see ibid. 86, b., Chudleigh's case, 1 Rep. 138, b.-CHITTY. It is only, however, such an alienation by feoffment with livery of seisin or by sufferng a common recovery which works a forfeiture. Deeds under the statute of uses,ordinary deeds of bargain and sale,-though they may assume to grant a greater estate, really convey no greater interest than the grantor had, and have not the operation alluded to in the text.-SHARSWOOD. The instances of conditions which now most frequently arise in practice are those contained in leases or agreements between lessor and lessee, and are principally conditions subsequent, provided for in the usual clauses of re-entry in case of a breach of a particular, or any covenant in the lease, as non-payment of rent, not repairing, not insuring, not residing on the premises, or in case of assignment, or parting with the ossession, or of bankruptcy, or insolvency, &c. See the cases upon this subject, 2 These conditions are therefore either precedent, or subsequent. Precedent are such as must happen or be performed before the estate can vest or be enlarged: subsequent are such, by the failure or non-performance of which an estate already rested 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 nc 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 condition precedent, and the fee-simple passeth not till the hundred marks be paid.(?) But if a man grants an estate in fee-simple, reserving to himself and his heirs a certain rent; and that if such rent be not paid at the time 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.() 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, and the like. And, on the breach of any of these *subsequent conditions, by the failure of these [*155 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 ostates which were respectively vested in each grantee are wholly determinable and void. A distinction is however made between a condition in deed and a limitation, which Littleton (m) denominates also a condition in law. For when an estate is so expressly confined 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 () Show. Parl. Cas. 83, &c. (*) Litt. § 325. (See pages 109, 110, 111. Cruise's Dig. 10, 11, 13. 4 Cruise, 506. Adams, Ejectm. index, Covenant. 2 Saunders, by Patteson & Williams, index, Forfeiture.-CHITTY. Even at common law and in the construction of a deed no precise technical words necessarily make a stipulation precedent or subsequent: neither does it depend upon the circumstance whether the clause has a prior or a posterior place in the deed, so that it takes effect as a proviso; for the same words have been construed to operate either as a precedent or as a subsequent condition, according to the nature of the transaction. Hotham vs. The East India Company, 1 T. R. 645. Acherley vs. Vernon, Willes, 156 The dependence or independence of covenants or conditions, lord Mansfield said, is to be collected from the evident sense and meaning of the parties; and, however transposed they may be in deed, their precedency must depend upon the order of time in which the intent of the transaction requires their performance. Jones vs. Barkley, 2 Doug. 691. Equity will not allow any one to take advantage of a bequest over, who has himself been instrumental in causing the breach of a condition. Garrett vs. Pretty, stated from Reg. Lib. in 3 Meriv. 120. Clarke vs. Parker, 19 Ves. 12. D'Aguilar vs. Drinkwater, 2 Ves. & Bea. 225. But it is a general rule that where a condition is annexed by will to a devise or bequest, and no one is bound to give notice of such condition, the parties must themselves take notice and perform the condition, in order to avoid a forfeiture. Chauncy vs. Graydon, 2 Atk. 619. Fry vs. Porter, 1 Mod. 314. Burgess vs. Robinson, 3 Meriv. 9. Phillips vs. Bury, Show. P. C. 50. Infancy will be no excuse in such case for non-performance of the condition. Bertie vs. Lord Falkland, 2 Freem. 221. Lady Ann Fry's case, 1 Ventr. 200. The application of this general rule, however, is subject to one restriction: where a condition is annexed to a devise of real estate to the testator's heirat-law, there notice of the condition is necessary before he can incur a forfeiture; for an heir-at-law will be supposed to have entered and made claim by descent, not under the will. Burleton vs. Homfray, Ambl. 259.-CHITTY VOL. I.-33 513 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 like.(n) In such case the estate determines as soon as the contingency happens, (when he ceases to be parson, marries a wife, or has received the 5001.,) 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) Yet, though strict words of condition be used in the creation of the estate, 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 *156] a *condition :(q) 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 condition.(r) In all these instances, of limitations or conditions subsequent, 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 forever, 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. 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 to the nature of the estate, *157] are void. In any of which cases, if they be conditions 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; that then and in any of such cases the estate shall be vacated and determine: 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 after. waras 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 (*) 10 Rep. 41. (•) Ibid. 42. (P) Litt. 347. Stat. 32 Hen. VIII. c. 34. (1) 1 Vent. 202. Cro. Eliz. 205. 1 Roll. Abr. 411. (1) Co. Litt. 206. is also void, and the grantee shall take nothing by the grant: for he hath no estate until the condition be performed.(u) There are some estates defeasible upon condition subsequent, that require & more peculiar notice. Such are. III. Estates held in vadio, in gage, or pledge; which are of two kinds, vivum radium, or living pledge; and mortuum vadium, dead pledge, or mortgage. Vivum vadium, or living pledge, is when a man borrows a sum (suppose 200i) 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) But mortuum vadium, 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 [*158 estate in fee, 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 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, forever dead and gone from the mortgagor; and the mortgagee's estate in the lands is then no longer conditional, but ab solute. 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, and other encumbrances, of the mortgagee, (though that doubt has been long ago overruled by our courts of equity,)(z) it therefore became usual to grant only a long term of years by way of mortgage; with condition to be void on repayment 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 fent, of whatever nature the mortgage may happen to be. As soon as the estate is created, the mortgagee may immediately 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, tho 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 *estate absolutely vested in the [*159 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 reason, able time to recall or redeem his estate; paying to the mortgagee his principalj (*) Co. Litt. 206. Litt. 332. (v) Ibid. 357. Cro. Car. 191. 'The student will observe that "by law" is here meant the law as administered in the common-law courts: in equity a different rule prevails.-CHITTY. The policy of the statute of limitations (32 Hen. VIII. c. 2) applies as strongly to a mortgaged estate as to any other. So long as the estate can be shown to have been treated as a pledge, so long there is a recognition of the mortgagor's title, (Hodle vs. Healey, 1 Ves. & Bea. 540, S. C. 6 Mad. 181. Grubb vs. Woodhouse, 2 Freem. 187;) but from the time when all accounts have ceased to be kept by the mortgagee, and provided, also, he has in no other way, either in communications to the mortgagor or in dealings with third parties, (Hansard vs. Hardy, 18 Ves. 459. Ord vs. Smith, Sel. Ca. in Cha. 10,) admitted the estate to be held as a security only, the statute will begin to run, unless the mortgagor's situation bring him within some of the savings of the statute; and if he do not within twenty years assert his title to redeem, his right will have been for |