I. Estates upon condition implied in law, are where the grant expressed) a condition an nexed to it, from its nature. [ * 153 ] 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. *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 (b) Litt. s. 378. (c) Ibid. s. 379. (d) Co. Litt. 233. or determine an estate to which it is 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. condition ex there is an ex *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 happen (5) See ante, the note to p. 72. (6) 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 v. The East India Company, 1 T. R. 645; Acherley v. Vernon, Willes, 156.) The dependence, or independence, of (g) Ibid. 201. covenants or conditions, Lord Mans- Such being the rule of common law, tion annexed to 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. (Robinson v. Comyns, Ca. temp. Talb. 165; Murray v. Jones, 2 Ves. & Bea. 320.) Where a legacy is given, to which a condition subsequent, in restraint of marriage, is annexed, the condition is void and merely in ter rorem; (Reynish v. Martin, 3 Atk. 332; Hicks v. Pendarvis, 2 Freem. 41;) unless there be also a valid devise over of the particular legacy; or, at least, it should seem, unless the will contain an express direction that such legacy, if the condition annexed thereto be not complied with, shall sink into the residue of the testator's property. (Wheeler v. Bingham, 3 Atk. 368; Lloyd v. Branton, 7 Meriv. 118; Malcolm v. O'Callaghan, 2 Mad. 350.) A mere general residuary bequest is not tantamount to a devise over of a legacy given on condition, but leaves such conditional legacy in statu quo, and can have no other effect but that of preventing what proves not to be otherwise well disposed of from falling, by order of law, to the next of kin. (Scott v. Tyler, 2 Dick. 723.) Whether a condition precedent, in restraint of marriage, annexed to personal legacies, can be considered as in terrorem only, where there is no express limitation over, is a point upon which great diversity of judicial opinion has been declared: where there is a valid devise over, there can now be no doubt it will take effect, if the condition be not complied with: (Clarke v. Parker, 19 Ves. 14:) and even where there is not an express devise over, the preponderance of authority seems to establish, that, even as to personal bequests, if the condition is confined within reasonable limits as to time; (Scott v. Tyler, 2 Dick. 723; Graydon v. Hicks, 2 Atk. 16;) and does not go in entire restraint of marriage; as also where it is framed only to guard against a connexion with a particular individual, or family, which the testator deems objectionable; (Jarvis v. Duke, 1 Vern. 19;) in all such cases, the condition must be complied with, or the legacy (though not given over) can never vest; or at least not be payable: (Elton v. Eason, 1 Ves. sen. 6; Knight v. Cameron, 14 Ves. 392) for, such cases necessarily exclude the only grounds which can authorise courts of equity to dispense with a strict performance of conditions precedent: (Hollinrake v. Lister, 1 Russ. 508) but conditions which would, virtually, go almost to the total exclusion of marriage, are void. (1 Eq. Ca. Ab. 108, in margin; Keily v. Monck, 3 Ridg. P. C. 263.) Where legacies are charged upon land, or the gift at all savours of the realty, and is coupled with a condition, that condition must be performed, and the trusts carried into execution in equity with analogy to the common law. (Scott v. Tyler, 2 Dick. 719; Long v. Ricketts, 2 Sim. & Stu. 183.) Lord Hardwicke held no rule to be better settled than the one which declares that portions charged on lands do not vest till the time of payment comes; and if that time, according to the will, be not until a marriage with consent, (his Lordship said,) there is no rule, in law or equity, which can excuse the want of such consent. In the same judgment it was also intimated, that it was unimportant whether there was or was not a devise over; for, the portions there in question, being to arise out of lands, had nothing testamentary in them, so as to be subject to the jurisdiction of the ecclesiastical courts, or the rules of the civil law: (Harvey v. Aston, 1 Atk. 378, 379; S. C. Willes, 91 :) whether it was wise to adopt those rules at all, may perhaps be questionable; (Pearce 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 long been well established in point of practice, that a material difference is made, as to portions out of lands and merely personal legacies; and that courts of equity, for uniformity of decision in pari materiá, follow the ecclesiastical courts in the one case, and the common law in the other. (Reynish v. Martin, 3 Atk. 333; Pullen v. Ready, 2 Atk. 590; Sheriff v. Mortlock, W. Kelynge, 24; Co. Litt. 206.) It must be obvious, that the rules applied to conditional bequests charged upon real estate, will bear upon conditional devises of the lands themselves. In Long v. Ricketts, (2 Sim. & Stu. 179,) which was the case of a devise of real estates to trustees, in trust to pay the rents and profits to the testator's son, so long as he should continue unmarried, and to convey the estates to him in case of his marriage with the consent of the trustees; but in case he should marry against their consent, then to sell the estates and divide the proceeds amongst other persons:-the son having married without the knowledge of the trustees, who disapproved the marriage when they heard of it; it was held, that, the marriage having been had without the consent of the trustees, though not against their consent, the devise over took effect. But, where a person devised his estate to trustees, to the use of his son for life, with remainders over, and with a proviso, that if the son should marry any woman not having a competent portion, or, without the consent of the trustees first had, then his trustees should stand seized of the premises to the use of the testator's two daughters; and he declared that the said proviso or condition was not intended by him, or to be construed or taken to be in terro rem; but a condition in want of performance whereof in every respect the estate should in no case be vested in his son; it was determined that, as the son had married a woman with a competent portion, though without the consent or approbation of the trustees, he had sufficiently satisfied the condition, by the performance of one of the prescribed alternatives; for that, conditions in restraint of marriage were not to be favoured, but ought to be construed with the utmost rigour and strictness to dispense with forfeitures. (Long v. Dennis, 4 Burr. 2054; O'Callaghan v. Cooper, 5 Ves. 125. See, however, Clarke v. Parker, 19 Ves. 19, where it is intimated that it is matter of doubtful propriety to make words bend to construction, in order to get rid of a forfeiture.) 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 v. Pretty, stated from Reg. Lib. in 3 Meriv. 120; Clarke v. Parker, 19 Ves. 12; D'Aguilar v. 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 v. Graydon, 2 Atk. 619; Fry v. Porter, 1 Mod. 314; Burgess v. Robinson, 3 Meriv. 9; Phillips v. Bury, Show. P. C. 50.) Infancy will be no excuse, in such case, for non-performance of the condition. (Bertie v. 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 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 (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) (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 estates upon condition that the grantees do not marry (8), and [155] the like. And, on the breach of any of these *subsequent Distinction between a condition in a deed and a limitation. 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 (h) Show. Parl. Cas. 83, &c. the testator's heir at law, there notice It may be right to observe, that se (k) Litt. s. 325. (7) See pages 109, 110, 111. veral parts of this note are extracted from Hovenden's notes to Vesey, junr's. Reports. (7) See ante, section 2 to chapter 7, (pp. 109-112,) with the notes thereto. (8) See ante, the last note but one. |
