lawful for the feoffor and (136) his heirs to enter (137), and to hold the land, until he be satisfied or paid the rent behind, &c. in this case if the rent be behind, and the feoffor or his *heirs enter, the feoffee is not altogether excluded from this (138), but the feoffor shall have and hold the land, and thereof take the profits, until (139) he be satisfied of the rent behind; and when he is satisfied, then may the feoffee (140) re-enter into the same land, and hold (141) it as he held it before. For in this case, the feoffor shall have (142) the land but in manner as for a distress, until (143) he be satisfied of the rent, &c. though (144) he take the profits in the mean time (145) to his own use, &c.

*203 a.

202 b Vid. sect. 332.

19 E. tit. Barre 280...

"And to hold the land until he be satisfied or paid the rent behind, &c. By this it is implied, that if such a feoffment be made, reserving, (b) for example, eight 19 R. 2. done rent 10. marks rent at the feast of Easter, with such a condition Pl. Com. 524. (b) 20 E. 3. tit. Coveas is aforesaid, the feoffor at the feast day demands the nant 3. rent, the feoffee payeth unto him six marks parcel of the rent, the feoffor entereth into the lands, and taketh the profits towards satisfaction. Afterwards the feoffee doth tender the two marks residue of the rent to the feoffor upon the land, who refuseth it. It *hath been adjudged, that the feoffee upon the refusal may enter into the land; for when the feoffor is satisfied, either by *perception of the profits, or by payment, or tender and refusal, or partly by the one and partly by the other, the feoffee may

(136) a added in L. and M.

(137) en la terre tenus de eux in

L. and M.

(138) de added in L. and M. and Roh.

(139) que added in L. and M. and Roh.

(140) re-entrer-entre in L. and M. and Roh.

(141) come-coment in L. and M.

*203 a.

(101)*

re-enter into the land. And this is within the words of Littleton, viz. "until he be satisfied." And albeit the de obligation on debt feoffor had accepted part of his rent, yet he may enter

(Autrement in case

sur contract. Doe. Pa. 109.)

(Sid. 223. 262.344.

Plow. 524 b.)

(c) 2 E. 3. fol. 7.

for the condition broken, and retain the land until he be satisfied of the whole (x 2.). All which is worthy of observation.

"In this case the feoffor shall have the land but in manner as for a distress, until he be satisfied, &c." By this it appeareth, that the feofsor by his re-entry gaineth no estate of freehold (v 2.), but an interest by the agreement of the parties to take the profits in nature of a distress. And therefore if a man maketh a lease for life, with a reservation of a rent, and such a condition, if he enter (upon) the condition broken, and take the profits of the land quousque, &c. he shall not have an action of debt for the rent arere, for that the freehold of the lessee doth continue: and therefore the book (c) that seemeth to the contrary is false printed, and the true case was of a lease for years, as it appeareth afterwards in the same page of the leaf.

But herein also a diversity worthy the observation is implied, viz. If a man make a lease for years, reserving a rent, with a condition, that if the rent be behind, that the lessor shall re-enter and take the profits, until thereof

(X2) That a previous demand is necessary in this case, as well as where the entry is general, see Hob. 82. 133. 208. And to entitle himself to the penalty, Lord Hobart thought that there must also be a demand of the rent on the day after it became due. Ibid. Et vid. 6 Bac. Abr. 40.-[Ed.]

(Y2) For the freehold continues in the feoffee. 3 Com. Dig. 130. And so it is, though the condition be, "that the feoffor his heirs and assigns shall enter," &c. Jemott v. Cowley, 1 Saund. 112. 1 Sid. 344. Ray. 136. 158. And if the feoffor enters, his interest goes to his executors. 1 Sid. 223. 262. 344, 5. But, in this case, he who enters may maintain an ejectment; for he has an interest sufficient to enable him to make a lease for trial of the title. 1 Lev. 170. 1 Sid. 345. 1 Saund. 112. 3 Com. Dig. 130. (O. 4.) So a fine levied to the grantee of a rentcharge, with a power limited by way of use, to enter on non-payment of the rent, " and retain until he be fully satisfied," conveys to him on entry an estate in possession, of which his lessee may maintain ejectment; for it is quasi a conditional inheritance until the rent be paid. Havergill v. Hare, 2 Cro. Jac. 511.-[Ed.]

:

he be satisfied, there the profits shall be counted as parcel of the satisfaction, and during the time that he so taketh the profits, he shall not have an action of debt for rent, for the satisfaction whereof he taketh the profits.

Semblable. 27 H.8.4.

But if the condition be, that he shall take the profits un- (102)* til the feoffor (A) be satisfied or paid of the rent, with-30 E. 3. 7. Vid. out saying (thereof), or to the like effect, there the pro-43 E. 3. 21. 31 Ass. fits shall be accounted no part of the satisfaction, but to pl. 26. Vid. le Stat. de Merton, cap. 6. hasten the lessee to pay it, and, as Littleton here saith, and observe these that until he be satisfied, he shall take the profits in the

meantime to his own use (z 2.) (1).

(A) The word feoffor seems to be here inserted for lessor. See Mr. Rit30's Intr. p. 119. Note to 18th Edit. Lond 1823.

(1) See Mr. Butler's note at the end of the volume. Note 9.

(22) This distinction, as to when the profits taken by the lessor after entry are and when they are not to be in satisfaction of the rent, is not admitted in equity; for the courts of equity will always make the lessor account to the lessee for the profits of the estate during the time of his being in possession of it, and decree him after he is satisfied the rent in arrear, and the costs, charges, and expenses attending his entry and detention of the lands, to give up the possession to the lessee, and deliver and pay him the surplus of the profits of the estate, and the money arising thereby. 6 Bac. Abr. 39. ed. Gwill.

Where a mortgage was made to the use of the mortgagee and his heirs, until he should have received by the rents and profits thereof the money borrowed with interest, and all other sums advanced by him to the mortgagor; and after payment by such rent of the mortgage-money, then to the use of the mortgagor for life, with remainder over; it was held, that the mortgagee was only in the nature of a tenant by elegit, and that as soon as his principal with interest was satisfied, either by being paid off, or by perception of the rents and profits, the estate of the mortgagee eeased; and the mortgagor, or his representatives, might have maintained an ejectment. And the court observed, that the mortgagor had a right to come into equity for an account of the profits received, as in an elegit the conusor has a right to see, if the conusee, on the extended value has received a satisfaction for his whole debt, and to have the surplus paid to him. Yates v. Hambly, 2 Atk. 360. In the above case time was held to be no bar to the redemption, it being analogous to a Welsh mortgage. Ibid. 363. Et vid. Howell v. Price, Prec. Ch. 423. 1. P. Wms. 291. 2 Vern. 701. Orde v. Heming, 1 Vern. 418. What is called a Welsh mortgage, is a perpetual power of redemption, subsisting for ever, and where the mortgagee cannot compel a redemption or a foreclosure, Longuet v. Scawen, 1 Ves. 402: but there are circumstances which may create a bar even in mortgages of this description. See Yates v. Hambly, supra. Hartpole v. Walsh, 4 Bro. P. C. 369.

In a former note on the subject of mortgages, it was mentioned, that a mortgagee in possession is liable to account with the mortgagor for the rents and profits actually received. Ant. p. 37. n. (Z). It may be further observed, that where the yearly rents and profits of an estate in mortgage greatly exceed the interest of the money lent, rests are annually made on making up the account, and the surplus applied to sink the principal. Gould v. Tancred, 2 Atk. 534. But as this is often attended

words, quod inde per

cipere possint duplicem valorem, &c. Et c. 7, without this word (inde.) See ante, 82 b.

211 b.

10. What shall be a
dispensation of a for-
feiture.
(Ante, 145a. 14 Ε. 3.
Entre Congeable 45.
14 Ass. 11. 45 Ass. 5.

6 Η. 7. 3. 17 Ε. 3.
73. Pl. Com. 133.

By section 341, it appeareth, that if the condition be broken for non-payment of the rent, yet if the feoffor bringeth an issue for the rent due at that time, he shall never enter for the condition broken, because he affirmeth the rent to have a continuance, and thereby waiveth the condition. And so it is, if the rent had had a clause of dis

22 H. 6. 57. (3 Rep. tress annexed unto it, if the feoffor had distrained for the

64.65.) 1 Rol. Abr. 475. Post, 373a. Noy. 7.)

(103)*

LITTLETΟΝ.

11. Pleading conditions in deed.

rent, for non-payment whereof the condition was broken, he should never enter for the condition broken, but he may receive that rent, and *acquit the same, and yet enter for the condition broken (A 3.). But if he accept a rent due at a day after, he shall not enter for the condition broken, because he thereby affirmeth the lease to have a continuance (в 3.).

ALSO, a man cannot plead in any action (с 3.), [Sect. 365.225 a] that an estate was made in fee, or in fee-tail, or for term of life, upon condition, (146) if he doth not In pleading condition vouch a record of this, or show a writing under seal, to defeat an estate of freehold, the party must proving the same condition. For it is a common show forth the deed un- learning, that a man by plea shall not defeat any es

der seal.

(146) que added in L. and M. and Roh.

with great hardships to mortgagees (especially when the sum is large, and the mortgagee forced to enter upon the estate, and then can only satisfy his debt by parcels, and is a bailiff to the mortgagor without salary, subject to an account, (2 Pow. Mort. 1038.), rests cannot be made unless specially directed by the decree. Davis v. May, 2d May, 1815, cited 1Mad. Rep. 14. Fowler v. Wightwick, cited ibid. Webber v. Hunt, 1 Mad. Rep. 13.-[Ed.]

(A 3) That, after acceptance of part of the rent, the lessor may reenter for the residue, see 10 H. 7. 24 a.-[Ed.]

(B3) See acc. 3 Salk. 3. Cowp. 303. Ante, p. 30. n. (T). So where, upon an ejectment by a landlord against his tenant, on a proviso for reentry for non-payment of rent, it appeared, that the lessor had brought covenant for half a year's rent, due on a day subsequent to the day of the demise laid in the declaration in ejectment, and a rule had been obtained to pay the rent arrear into court in that action; it was held, that the plaintiff had waved the right of entry for the forfeiture; because by bringing the action of covenant on the lease, he admitted the defendant to be tenant in possession by virtue of the lease; and the tenant having brought the money into court, was equivalent to acceptance. The law will always incline against forfeitures, as courts of equity relieve against them. Roe, d. Crompton v. Minshall, Bull. N. P. 96. Sel. N. P. 677.[Ed.]

(C3) The general doctrine of pleading will be explained at large in a future chapter. Post, Book III. Chap. 6. Of Pleading.-[Ed.]

tate of freehold by force of any such condition, unless he showeth the proof of the condition in writing, &c. unless it be *in some special cases, &c. But of chattels real, as of a lease for years, or of grants of wards made by guardians in chivalry, and such like, &c. a man may plead that such leases or grants were made upon condition, &c. without showing any writing of the condition. So in the same manner a man may do of gifts and grants of chattels personal, and of contracts personal, &c.

*225 b.

33 E. 3. Gard. 162.

"Unless it be in some special cases, &c." Hereby 225-b. is implied, that if a guardian in chivalry, in the right Exceptions to this rule: where the party pleadof the heir, entereth for a condition broken, he shall ing is a stranger; plead the state upon condition, without showing of any 20 H. 3. Darrein predeed, because his interest is created by the law. And sent. 13. 35 H. 6. tit. so it is (d) of a tenant by statute merchant or staple, or tenant by elegit.

(5 Rep. 75 a.)
11 b. 7 Н. 6.

Monstrans des Faits 118.

(d) 20 H. 7. 5. (2 Cro. 217.) (10 Rep. 93, 94.) 35 H. 6. tit. Monstrans des Faits 17 H. 5. 5. 3 H. 6. 21. 33 H. 6. 1. 14 Η. 8. 8.

Likewise tenant in dower shall plead a condition, &c. without showing of the deed. And the reason of these and the like cases, is, for that the law doth create these estates, and they come not in by him that entered for the condition broken, so as they might provide for the showing of the deed, but they come to the land by authority of law, and therefore the law will allow them to plead the condition without showing of it.

(104)*

226 a.

(e) But the lord by escheat, albeit his estate be created by law, shall not plead a condition to defeat a freehold (except where the deed belongs to him.) without showing of it, because the deed doth belong unto (e) 35 H. 6. ubi sup.

him.

A tenant by the curtesy shall not (f) plead a condition (f) 35 H. 6. ubi sup. made by his wife, and a re-entry for the condition broken without showing the deed; for albeit his estate be created VOL. 11.

Q