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firmation by the lord to his tenant, the services may be abridged,
but new services cannot be reserved, ib. Privity necessary to a
confirmation, abridging services, 544 to 547. IX. Confirmation of
a void estate, is void, 547. Where a person takes away a villain in
gross from his owner, a confirmation to him of his estate in the vil,
lain, is void, ib. Diversity herein in the case of a villain regard-
ant to a manor, 548; or where the deed of confirmation enures by
way of grant, 549. Confirmation of estate of lessee for years, be-
fore entry, is void, 550.

CHAP. XLII.

SAME SUBJECT.

Of a Surrender.

Definition of a surrender, 551. The different kinds of surren-
der, 552. I. Surrender in deed, 553. Might be by parol (at com-
mon law), and livery of seisin not requisite, ib. But a surrender
of things in grant must be by deed, ib. Surrender must be of an
actual estate, and not of a mere right, ib. II. Surrender in law,
554. Lease for years to begin at a future day, is not merged by a
surrender in deed, before the day, ib. Secus as to a surrender in law
by acceptance of a new lease, ib. On lessee's acceptance of a new
lease on condition, by breach whereof it becomes void, yet the sur-
render in law of the old lease is absolute, 555. So in case the les-
see accepts a grant of the reversion on condition, &c. ib. Diver-
sity herein when the lessee surrenders on condition, ib. On guar-
dian in chivalry taking a feoffment of the infant, though it be void,
his interest is surrendered in law, ib. On lease for years by the
master of an hospital sole seised, &c. the lessee being afterwards
made master, the term is merged, 556. So in case of lessee for
years marrying the feme lessor, ib. Secus where a man lessor
marries the feme lessee, ib.; or where the lessee makes the lessor
his executor, 557 to 562; or in case of lessee for years, under a
corporation aggregate of many, being made master, 563. III. ef
fect of a surrender, 563. On a surrender, the estate, as between
the parties, is absolutely determined, ib. Secus as to strangers,
564; unless it be for their advantage, 565. Of a bond, 566 to 569.

CHAP. XLIII.

SAME SUBJECT.

Of Conveyances under the Statute of Uses, &c.

Definition of an use at common law, 570. Cannot be two uses
in esse of the same land, 571 to 577., On what conveyances uses
may be raised, 578. On feoffinent to future uses, the use results
to the feoffor in the mean time, 579 to 582 So where feoffor dís-
poses of the profits for a particular time in præsenti, the use of the
inheritance is in him, as a thing undisposed of, 583 to 586. By stat..
27 H. 8. all uses are transferred into possession, 587 to 589. Di-
versity as to the passing of the estate, between a feoffment to the
intent to perform feoffor's last will, and where it is to the use of
such persons and such estates as he shall appoint by will, 590 to

603.

C

CHAP. XLV.

Of Alienation by Special Custom.

Alienation by surrender, the proper mode of conveying copyhold

estates, 624; or customary freeholds, ib. Form of the surrender,

625. Who may take surrenders, 626. Lord of a manor pro tem-

pore may take surrenders, 627, The lord may take surrenders out

of court, 628. Steward of a manor, his office and duties, 629.

How appointed, ib. Surrender by custom may be made to the
bailiff, or to two tenants of the manor, out of court, 630. Such
surrender made out of court must be presented at the next court,
ib. On presentment at the next court the surrender is good,
though the surrenderor die in the mean time, ib. Effect of a sur-
render and admission, 632. The surrenderee is in by the surren-
deror, and the lord is a mere instrument, ib. On surrender, the
limitation of the use being general, the surrenderee has but an es-
tate for life, 633. Surrender out of court by one joint-tenant to the
use of his will, with presentment (after his death) at the next
court, enures as a severance of the jointure by relation, ib. Cus-
tom to surrender need not be alleged in pleading, unless surrender
made to the steward, &c. out of court, 634, 5.

CHAP. XLVI.

Of Alienation by Devise.

NEW ARRANGEMENT

OF THE

FIRST INSTITUTE.

BOOK II.

OF THE LAW OF TENURES AND REAL PROPERTY

CHAP. XXVII.

OF ESTATES UPON CONDITION.

LITTLETON, having before spoken of estates absolute

2015.

now beginneth to entreat of estates upon condition (A). Nature of conditions

a freehold,

Glanv. lib. 10. cap. 8.
Bracton, lib. 2. ca. 5.

& fol. 89. 99. 114.

(A) Estates upon Condition, as Sir William Blackstone justly remarks, 6. 7, &c. lib. 4. fol. are more properly qualifications of other estates, than a distinct species 213. Brit. cap. 36. of themselves. Any quantity of interest, either fee-simple, a or a term for years, may be granted with an express condition annexed, 130. 205. 206, 207. whereby an estate may be created, enlarged, or defeated upon an uncer- 249. Fleta, lib. 3.. lain event. Where the condition must be pei performed before the estate cap. 9. & lib. 5. cap. can commence, it is called a condition precedent; but where the effect of 5. Mirr. cap. 2, sect a condition is either to enlarge or defeat an estate already commenced, 15. & 17, it is called a condition subsequent. Thus, if an estate be limited to A. upon his marriage with B., the marriage is a precedent condition, and till that happens nó estate vests in A. Show. Parl. Ca. 83. Or if a man make a lease of land to I. S. for ten years, provided that if he pay the lessor 101. at Michaelmas, he shall have the land to him and his heirs; this is also a condition precedent, and must be fulfilled ere the estate can take effect. Shep. T. 17. But where à lease is made for years, on condition that the lessee shall pay 101. to the lessor at Michaelmas, or else his lease shall be void, this is a condition subsequent; for here the estate is executed, but the continuance thereof depends upon the breach or performance of the condition. Ibid. So 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 anter, and upon condition subsequent, which is defeasible if th

VOL. IL

B

3(29

And a condition annexed to the realty, whereof Littleton here speaketh, in the legal understanding, est modus, a quality annexed by him that hath estate, interest, or right, to the same, whereby an estate, &c. may either be

condition be not strictly performed. Post, 201 a. Conditions precedent, which are to create an estate, receive a liberal construction; and if the condition is performed as near to the intent as possible it will be sufficient; but it is a rule that conditions which defeat estates are to be constructed strictly. Post, 220 a. Rol. Abr. 438. And such conditions can only be reserved to the feoffor, donor, or lessor, and their heirs, and not to a stranger; for it is a maxim of law, as Lord Coke hereafter observes, that nothing which lies in action, entry or re-entry, can be granted over, in order to discourage maintenance and litigation. Post, 214 a. Most of the cases relating to conditions fall under the distinctions of conditions precedent and subsequent.

Besides these express or conventionary conditions, there is another class of conditions, which are termed conditions in law. 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; on breach of which condition it is lawful for the grantor or his heirs to oust him, and to grant it to another person. Post, 232 b. 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 a tenant for life or years enfeoff a stranger in fee-simple, this is 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. Post, 215a. So if any tenant 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 feudal donation.

To the feudal system, indeed, we owe the origin of the doctrine of conditions. In the early ages of the feud, the performance of feudal service was a condition incident to, and inseparable from, the estate of the feudatory; and, in case of failure thereof, the lord had a right of entry for his tenant's forfeiture. And, in after times, when improper feuds were introduced, estates were granted subject to express conditions: and it was a maxim of the feudal law, that conventio modum dat donationi; and, therefore, whatever terms the donor prescribed, though varying from the general course, was the rule by which the grant was to be regulated. See Sulliv. Lect. 7. p. 63. Craig. de Jure Feudali, lib. 2. dieg. 4. sect. 1, 2, 3.

In the civil law the word condition has a much more extensive signification than in our law'; for in the former conditions are defined to be "pactions which regulate that which the contractors have a mind should be done, if a case which they foresee should come to pass." See Domat. lib. 1. tit. 1. sect. 4. Besides the distinctions of conditions precedent and subsequent, this writer also mentions a third sort of conditions, viz. those which neither accomplish nor dissolve the contract; but which only make some other changes in it as where it is said, that if a house, which is let be given without the moveables that were promised, the rent shall be lessened so much. Ibid.-[Ed.] [See Mr. Butir's note at the end of the volume. Note, 1.]

defeated, or enlarged, or created upon an uncertain event. Conditio dicitur cùm quid in casum incertum qui potest tendere ad esseaut non esse confertur.

ESTATES which men have in lands or tenements

LITTLETΟΝ.

[Sect. 325.201 a]

(1) upon condition are (2) of two sorts, viz. (3) either The different kinds of they have estate upon condition in deed (quæ est facti, conditions. that is, upon a condition expressed by the party in legal [COKE, 201 a.] terms of law), or upon condition in law (4), &e.

(3)*

201 a.

*"Or upon condition in law, &c." Quæ est juris, that is, tacitè, created by law without any words used by (Plow. 23 a. 1 Rol. the party. Again Littleton subdivideth conditions in Abr. 420. 2 Rep. 79.) deed (though not in express words) into conditions precedent (of which it is said, Conditio adimpleri debet priusquam sequatur effectus), and conditions subsequent. Again, of conditions in deed some be affirmative, and some in the negative; and some in the affirmative, which imply a negative; some make the estate, whereunto they are annexed, voidable by entry or claim, and some make the "estate void ipso facto, without entry or elaim.

*201 b.

Also of conditions in deed, some be annexed to the rent reserved out of the land, and some to collateral acts, &c.: some be single, some in the conjunctive, some in the disjunctive, as shall evidently appear in this chapter, where Mir. cap. 2. sect. 15. the examples of these divisions shall be explained in their & 17. proper place.

Of conditions in law more shall be said hereafter in this chapter.

UPON condition in deed is, as if a man by deed indented infeoffs another in fee-simple (5), reserving to him and his heirs yearly a certain rent payable at one feast or divers feasts per annum, on condition that if

(1) sur condition not in L. and M. nor Roh.

(2) de-en in L. and M. and Roh.

(3) ou not in L. and M. nor Roh.
(4) &c. not in L. and M. nor Rob.
(5) simple not in L. and M. nor

Roh.

LITTLETΟΝ.

[Sect. 325.201.a] Conditions in deed.

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