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1. Estates upon condition implied in law, are


expressed) a condition annexed to it, from its nature.

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 condition implied in law, are where a

grant of an estate has a condition annexed to it inseparably has though un- 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)(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 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

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(6) Litt. s. 378.

(c) Ibid. s. 379.

(d) Co. Litt. 233.

or determine an 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. (Jer-
min v. 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.)

(4) Bartlett v. Downes, 3 Barn. & Cress. 619; S. C. 5 Dowl. & Ryl. 529.

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 (5); 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, [ * 154 ] is where an estate is granted, either in fee-simple or other- II. Estates upon wise, with an express qualification annexed, whereby the pressed are where estate granted shall either commence, be enlarged, or be de- press qualificafeated, upon performance or breach of such qualification or the grant. condition (g). These conditions are therefore either precedent, or subsequent (6). Precedent are such as must bappen

tion annexed to

(e) 9 Rep. 50.

(f) Co. Litt. 215.

(9) Ibid. 201.

(5) See ante, the note to p. 72. covenants or conditions, Lord Mans

(6) Even at common law, and in the field said, is to be collected from the construction of a deed, no precise evident sense and meaning of the partechnical words necessarily make a ties; and however transposed they may stipulation precedent or subsequent : be in a deed, their precedency must neither does it depend upon the cir- depend upon the order of time in which cumstance whether the clause has a the intent of the transaction requires prior or a posterior place in the deed, their performance. (Jones v. Barkley, so that it takes effect as a proviso. For, 2 Dougl. 691.) the same words have been construed Such being the rule of common law, to operate either as a precedent or as a fortiori, in courts of equity, and in a subsequent condition, according to the construction of wills, no technical the nature of the transaction. (Hotham words are held to distinguish precedent v. The East India Company, 1 T. R. and subsequent conditions: the same 645; Acherley v.Vernon, Willes, 156.) words may, indifferently, constitute The dependence, or independence, of either ; according to the intention of

or be performed before the estate can vest or be enlarged : subsequent are such, by the failure or non-performance of


the person who creates the condition. to guard against a connexion with a (Robinson v. Comyns, Ca. temp. Talb. particular individual, or family, which 165 ; Murray v. Jones, 2 Ves. & Bea. the testator deems objectionable; (Jar320.) Where a legacy is given, to vis v. Duke, 1 Vern. 19;) in all such which a condition subsequent, in re- cases, the condition must be complied straint of marriage, is annexed, the with, or the legacy (though not given condition is void and merely in ter-- over) can never vest; or at least not rorem ; (Reynish v. Martin, 3 Atk. be payable : (Elton v. Eason, 1 Ves. 332; Hicks v. Pendarvis, 2 Freem. sen. 6; Knight v. Cameron, 14 Ves. 41;) unless there be also a valid devise 392 :) for, such cases necessarily exover of the particular legacy ; or, at clude the only grounds which can auleast, it should seem, unless the will thorise courts of equity to dispense contain an express direction that such with a strict performance of conditions legacy, if the condition annexed thereto precedent: (Hollinrake v. Lister, 1 be not complied with, shall sink into Russ. 508 :) but conditions which the residue of the testator's property. would, virtually, go almost to the total (Wheeler v. Bingham, 3 Atk. 368 ; exclusion of marriage, are void. (1 Eq. Lloyd v. Branton, 7 Meriv. 118; Mal- Ca. Ab. 108, in margin; Keily v. colm v. O'Callaghan, 2 Mad. 350.) Monck, 3 Ridg. P. C. 263.) Where

3 A mere general residuary bequest is legacies are charged upon land, or the not tantamount to a devise over of a gift at all savours of the realty, and legacy given on condition, but leaves is coupled with a condition, that consuch conditional legacy in statu quo, dition must be performed, and the and can have no other effect but that trusts carried into execution in equity of preventing what proves not to be with analogy to the common law. otherwise well disposed of from falling, (Scott v. Tyler, 2 Dick. 719; Long by order of law, to the next of kin. v. Ricketts, 2 Sim. & Stu. 183.) Lord (Scott v. Tyler, 2 Dick. 723.)

Hardwicke held no rule to be better Whether a condition precedent, in settled than the one which declares restraint of marriage, annexed to per- that portions charged on lands do not sonal legacies, can be considered as in vest till the time of payment comes ; terrorem only, where there is no ex- and if that time, according to the will, press limitation over, is a point upon be not until a marriage with consent, which great diversity of judicial opi- (his Lordship said,) there is no rule, nion has been declared: where there is in law or equity, which can excuse the a valid devise over, there can now be want of such consent. In the same no doubt it will take effect, if the con- judgment it was also intimated, that dition be not complied with : (Clarke it was unimportant whether there was v. Parker, 19 Ves. 14 :) and even or was not a devise over ; for, the where there is not an express devise portions there in question, being to over, the preponderance of authority arise out of lands, had nothing testa. seems to establish, that, even as to mentary in them, so as to be subject personal bequests, if the condition is to the jurisdiction of the ecclesiasticonfined within reasonable limits as to cal courts, or the rules of the civil time; (Scott v. Tyler, 2 Dick. 723 ; law : (Harvey v. Aston, 1 Atk. 378, Graydon v. Hicks, 2 Atk. 16 ;) and 379; S. C. Willes, 91 :) whether it does not go in entire restraint of mar- was wise to adopt those rules at all, riage; as also where it is framed only may perhaps be questionable ; (Pearce

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which an estate already vested may be defeated. Thus, if an estate for life be limited to A. upon his marriage with B.,

v. Loman, 3 Ves. 139 ;) but it has rem; but a condition in want of perlong been well established in point of formance whereof in every respect the practice, that a material difference is estate should in no case be vested in made, as to portions out of lands and his son; it was determined that, as merely personal legacies; and that the son had married a woman with a courts of equity, for uniformity of de- competent portion, though without cision in pari materid, follow the ec- the consent or approbation of the clesiastical courts in the one case, and trustees, he had sufficiently satisfied the common law in the other. (Rey- the condition, by the performance of nish v. Martin, 3 Atk. 333; Pullen v. one of the prescribed alternatives; for Ready, 2 Atk. 590; Sheriff v. Mort- that, conditions in restraint of marlock, W. Kelynge, 24; Co. Litt. 206.) riage were not to be favoured, but

It must be obvious, that the rules ought to be construed with the utmost applied to conditional bequests charg- rigour and strictness to dispense with ed upon real estate, will bear upon forfeitures. (Long v. Dennis, 4 Burr. conditional devises of the lands them- 2054; O'Callaghan v. Cooper, 5 Ves. selves. In Long v. Ricketts, (2 Sim. 125. See, however, Clarke v. Parker, & Stu. 179,) which was the case of 19 Ves. 19, where it is intimated that a devise of real estates to trustees, in it is matter of doubtful propriety to trust to pay the rents and profits to

make words bend to construction, in the testator's son, so long as he should order to get rid of a forfeiture.) continue unmarried, and to convey the Equity will not allow any one to estates to him in case of his marriage take advantage of a bequest over, who with the consent of the trustees; but

has himself been instrumental in causin case he should marry against their ing the breach of a condition. (Garconsent, then to sell the estates and rett v. Pretty, stated from Reg. Lib. divide the proceeds amongst other per- in 3 Meriv. 120; Clarke v. Parker, sons :--the son having married with- 19 Ves. 12; D’Aguilar v. Drinkwater, out the knowledge of the trustees, who 2 Ves. & Bea. 225.) But, it is a general disapproved the marriage when they rule, that where a condition is anheard of it; it was held, that, the mar- nexed by will to a devise or bequest, riage having been had without the and no one is bound to give notice of consent of the trustees, though not such condition, the parties must themagainst their consent, the devise over selves take notice, and perform the took effect. But, where a person de- condition, in order to avoid a forvised his estate to trustees, to the use feiture. (Chauncy v. Graydon, 2 Atk. of his son for life, with remainders 619; Fry v. Porter, 1 Mod. 314 ; over, and with a proviso, that if the Burgess v. Robinson, 3 Meriv. 9; son should marry any woman not Phillips v. Bury, Show. P. C. 50.) having a competent portion, or, with. Infancy will be no excuse, in such out the consent of the trustees first case, for non-performance of the conhad, then his trustees should stand dition. (Bertie v. Lord Falkland, 2 seized of the premises to the use of Freem. 221 ; Lady Ann Fry's case, the testator's two daughters ; and he 1 Ventr. 200.) The application of this declared that the said proviso or con- general rule, however, is subject to dition was not intended by him, or to one restriction :-where a condition is be construed or taken to be in terro- annexed to a devise of real estate to


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 condition precedent, and the fee-simple passeth not till the hundred marks be paid (ë). 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) (7). 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 es

tates upon condition that the grantees do not marry (8), and [ * 155 ] the like. And, on the breach of any of these *subsequent

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 between a condi. tion in a deed and a limitation.

(h) Show. Parl. Cas. 83, &c.
(i) Co. Litt. 217.

(k) Litt. s. 325.
(1) See pages 109, 110, 111.

the testator's heir at law, there notice veral parts of this note are extracted
of the condition is necessary before he from Hovenden's notes to Vesey,
can incur a forfeiture; for, an heir at junr's. Reports.
law will be supposed to have entered (7) See ante, section 2 to chapter
and made claim by descent, not under 7, (pp. 109–112,) with the notes
the will. (Burleton v. Homfray, Ambl. thereto.

(8) See ante, the last note but one. It may be right to observe, that se

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