firmation by the lord to his tenant, the services may be abridged, CHAP. XLII. SAME SUBJECT. Of a Surrender. Definition of a surrender, 551. The different kinds of surren- CHAP. XLIII. SAME SUBJECT. Of Conveyances under the Statute of Uses, &c. Definition of an use at common law, 570. Cannot be two uses 603. C Of Alienation by Matter of Record. Definition and nature of a fine, 604 to 612. Fine by tenant in tail, a bar to the issue: secus as to the remainder-man, or rever- sioner, if he enter within five years after his right accrued, 613. Tenant in tail being disseised, or having a right of action, a fine by the tenant of the land, after five years, bars the right of the es- tate-tail, ib. Definition of a common recovery, 613 to 615. The different kinds, 616. Nature and operation of a common recove- ry, 617. Common recovery by tenant for life, no bar to the re- mainder-man, or reversioner, ib. Secus as to a common recovery by tenant for life, with the concurrence of tenant in tail, ib. Com- mon recovery by tenant in tail in possession, is a bar to all re- mainders and reversions, 618; and to the estate tail, ib. Secus as to a common recovery (or fine) by tenant in tail of the king's gift the reversion or remainder being in the crown. ib. Construction of stat. 34 H. 8. c. 20., 619 to 623. Recovery suffered by tenant in 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 CHAP. XLVI. Of Alienation by Devise. Signification and etymology of the word "devise," 636. How. distinguished from a testament, ib. At common law, no lands were deviseable except by custom, ib. Alteration in the common law herein, by stat. 32 & 34 H 8. 637 to 639. Devise by custom, not taken away by these statutes, 640, 1. What devises good under the stats. of wills, 642 to 645. On devise of lands, the freehold in law is in the devisee before entry, 645. Construction of devises, 646. Where there are several wills, or two inconsistent devises, the 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. & 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. Roh. LITTLETΟΝ. [Sect. 325.201.a] Conditions in deed. |