er the tenant vouched to warranty; the vouchee as to part pleaded that the husband was never seised of any estate whereof she might be endowed; as to the residue the tenant pleaded that he leased to the husband in gage upon condition, that if the lessor paid ten marks át a certain day, that he should re-enter, and if he failed of payment, that the land should remain to the husband and his heirs, which must be intended to be done by one entire act, and pleaded that he paid the money at the day, which is allowed to be a good plea: Ergo, the fee-simple passed by the livery, otherwise the plea had amounted that the husband was never seised, &c. And, say they, that it cannot be intended that the judges should be of one opinion in Trinity term, and of another opinion in Michaelmas term in the same year, and therefore (they hold) their several opinions are in respect of the said (17)* diversity of the case. (1) 32 E. 3. tit. Garr. 30. A tenant by the curtesy (1) 32. E. 3. tit. Garr. made a lease for years, and in surety of the term, &c. made a charter in fee-simple, and made livery according to the charter (note a special mention made of livery in this case); and issue being taken in an assise, whether the tenant by the curtesy demised in fee, upon the special matter found, it was adjudged that a fee-simple passed, and that the heir might enter for a forfeiture, which, say they, in case of livery is an express judgment in the 30. *218 a. point agreeing with the opinion of Littleton, (m) 43 E. 3. 35. In an action of waste against one in (m) 43 E. 3. 35. lands which he held for term of years, Belknap pleaded thus for the defendant: that the defendant was seised in fee, and infeoffed the plaintiff, &c. and after the plaintiff demised the land back again to the defendant for years upon condition, that if the defendant paid certain money, &c. that then the defendant might retain the land to him and to his heirs, and if not, the plaintiff might enter, &c. and pleaded that the term endured, and that the day of payment was not come, and demanded judgment, if the plaintiff may maintain an action of waste, inasmuch as the defendant had now a fee-simple, and showed forth (n) 20 Ass. pl. 20. the indenture of lease with the condition (which agreeth with Littleton's case), all being done at one time, and by one deed, and livery intended, and with Littleton's opinion also. It is true, say they, that Cavendish, accounsel with the plaintiff, offered to demur, but never proceeded. (n) Vide 20 Ass. pl. 20. (18)* Lib. 8, fol. 90. Other authorities they cite, but these (as I take it) are the principal, and therefore for avoiding of tediousness, having I fear been too long upon this point, the others I omit. Only this they add, that Littleton had seen and considered of the said books, and have set down his opinion where livery of seisin is made upon a conveyance made at one time, as hath been said, that he hath fee-simple conditional. * Benigne lector, utere tuo judicio, nihil enim impeFrance's case. (Dyer dio. Conditio beneficialis quæ statum construit be45. Plowd. 7 a.) nignè secundum verborum intentionem est interpretanda, odiosa autem quæ statum destruit strictè secundum verborum proprietatem est accipienda (1). (1) In the case put by Littleton, and so fully commented on by Lord Coke, whatever doubt may exist as to the point whether the grantee took a conditional fee immediately on the conveyance and livery being made, it is quite clear that the condition itself is good, and that on performance thereof the fee-simple will pass. And it was resolved in Lord Stafford's case (8 Co. 74.), that such a grant may be good as well of things which lie in grant as of things which lie in livery; and may be annexed as well to an estate tail, which cannot be divested, as to an estate for life or years, which may be merged by the access of a greater estate. But such increase of an estate by force of such a condition ought to have four incidents:-1st. Taere ought to be a particular estate as a foundation for the increase to take effect upon, which particular estate must not be an estate at will, not revocable, nor contingent. 2dly. Such particular estate ought to continue in the lessee, or grantee, until the increase happens, without any alteration of privity in estate by alienation of the lessee or grantee: but such increase need not take place immediately upon the particular estate, but may enure as a mediate remainder, subsequent to an intermediate remainder for life, or in tail to somebody else. 3dly. That the increase must vest and take effect immediately upon the performance of the condition, or never. 4thly. That the particular estate, and the increase, ought to take effect by one and the same instrument or deed, or by several deeds, delivered at one and the same time (which, in effect, is the same thing, for quæ incontinenti fiunt in esse videntur); because the particular estate, and the increase thereupon, is only a grant to take effect out of one and the same root; and though the increase vest at a different time, yet, when it is vested, it has its force and effect from the same grant. 8 Co. 77 a. Fearne. Cont. Rem. 420. 422. 4th ed. Et vid. Sheph. Couch. fol. 129. where another requisite is mentioned, namely, that the condition upon which the increase is to take place, must be A lease is made to a man and a woman for their lives Condition precedent being uncertain, no esupon condition, that which of them two shall first mar-tate can arise : ry, that one shall have fee, they intermarry, neither of them shall have fee, for the uncertainty. Note, if the condition be to increase an estate (that is so if it become impossible, though by act of to say) to have fee upon payment of money to the lessor the lessor. or his heirs at a certain day, before the day the lessor is (Plow. 481 a. Post, 206 a. b.) attainted of treason or felony, and also before the day is executed, now is the condition become impossible by the act and offence of the lessor, and yet the lessor shall not have fee, because a precedent condition to increase an estate must be performed, and if it become impossible, no estate shall rise. estate is absolute: 262. 37 H. 6. Barre If a man make a feoffment in fee upon condition that (19)* the feoffe shall re-infeoff him before such a day, and be- 206. b. Condition subsequent fore the day the* feoffer disseise the feoffee, and hold him becoming impossible by out by force until the day be past, the state of the fe-act of the feoffor, the offee is absolute, for "the feoffor is the cause wherefore 35 H. 6. tit. Burre the condition cannot be performed, and therefore shall never take advantage for non-performance thereof." (0) Dyer 262. 28 H. 8. And so it is if A. be bound to B. that J. S. shall marry 30. (8 Rep. 83 a. 92 a Hob.24) Jane G. before such a day, and before the day B. marry (0) 4H. 7. 4. 30 H. 8. with Jane, he shall never take advantage of the bond, Dyer 42. 11 H. 4. for that he himself is the mean that the condition could 57, in protection. 10 H. 7. 18. (Doc. not be performed. And this is regularly true in all Pla. 230.) cases. 60. 2 Ε. 3. 9.9 Eliz. 206 a. It is to be observed, that where the condition be- so if by act of God. cometh impossible to be performed by the act of God, as by death, &c. the state of the feoffee shall not beavoided (K), as shall be said hereafter in this chapter. possible and lawful. As to the doctrine, that a freehold at common law cannot be in obeyance, see the note to fol. 342 b.-[Ed.] (K) At the commencement of this chapter some observations were made as to conditions precedent and subsequent, which subject may be here conveniently resumed. Conditions precedent are such as must be punctually performed before the estate can vest. Conditions subsequent are when the estate is executed; but the continuance of such estate depends on the breach or performence of the condition. There are no precise technical words required in a deed to make a stipulation a condition precedent or subsequent; neither does it depend on the circumstance, (20)* whether the clause is placed prior or posterior in the deed, so that it operates as a proviso or covenant; for the same words have been construed to operate as either the one or the other, according to the nature of the transaction. Hotham v. E. I. Company, 1 T. R. 645. So in wills, it is fully settled, that a condition is to be construed to be precedent or subsequent, as the intent of the testator may require. The question always is, whether the thing is to heppen before, or after the estate is to vest: if before, the condition is precedent; if after, it is subsequent. Doe, d. Planner v. Scudamore, 2 Bos & Pul. 295. Questions depending on the doctrine of conditions precedent and subsequent, frequently occur on devises to which a condition of marriage is annexed. With regard to which class of cases, it seems settled, that where a gift or devise, to which a condition in resrraint of marriage is annexed, is of land, or a charge on land, if such condition be precedent, it must be strictly performed, in order to entitle the party claiming to the benefit of such gift, Bertie v. Lord Falkland, 3 Ch. Ca. 130. 2 Vern. 338, 339. 2 Freem. 220. Fry v. Porter, 1 Mod. 300. Reeves v. Hearne, M. 4 Geo. 2. 5 Vin. Abr. 343. Harvey v. Aston, 1 Atk. 361. Pullen v. Reddy, Wils. 21. Reynish v. Martın, 3 Atk. 330. 1 Wils. 130. Randall v. Payne, 1 Bro. C. C. 55.; if the condition be subsequent, its validity will depend on its being such as the law will allow to divest an estate. 3 Atk. 377, 8. Pullen v. Ready, 2 Atk. 587. 590. Infra, 206 b. But where the gift or legacy, to which a condition of marriage is annexed, is charged on personal estate, and there is no devise over, such condition is only considered in terrorem, whether it be precedent (Harvey v. Aston, supra. Dalley v. Desbouverie, 2 Atk. 261. Reynish v. Martin, supra. Elton v. Elton, 1 Wils. 159.1 Ves. 4. 3 Atk. 504.), or subsequent. Bellasis v. Ermine, 1 Ch. Ca. 22. Semphill v. Bayley, Prec. Ch. 562. Jervis v. Duke, 1 Vern. 20. Underwood v. Morris, 2 Atk. 184. Pullen v. Ready, 1 Wils. 21. 2 Atk. 587. Marples v. Bainbridge, 1 Mad. Rep. 590. And in such case, if the condition be subsequent, it shall not divest the legacy already vested; but, if the condition be precedent, it will (though in terrorem) necessarily prevent the legacy from vesting, untill the marriage (though without any consent obtained) be performed. Carbut v. Hilton, 1 Atk. 381. Atkyns v. *Hiccocks, 1 Atk. 500. Pullen v. Ready, 2 Atk. 590. Elton v. Elton, 1 Wils. 159. 1 Ves. 4. 3 Atk. 504. Hemmings v. Munckley, 1 Bro. C. C. 303. Knapp. Noyes, Ambl. 662. But if the gift or legacy be given over, in the event of the condition being broken, then the condition will be allowed to prevail. Sutton v. Jewke, 2 Ch. Rep. 95. Piggott v. Morris, Sel. Ca. Ch. 26. Bellasis v. Ermine, 1 Ch. Ca. 22. Stratton v. Grimes, 2 Vern. 357. Aston v. Aston, 2 Vern. 452. Wrottesley v. Wrottesley, 2 Atk. 584. Chauncey v. Graydon, 2 Atk. 616. Scot v. Tyler, 2 Bro. C. C. 431. Long v. Dennis, 4 Burr. 2052. Knight v. Cameron, 14 Ves. 389. Lester v. Garland, 15. Ves. 248. A bequest of the residue is a sufficient devise over to support the condition. Amos v. Horner, 1 Eq. Ab. 112. pl. 9. Scot v. Tyler, supra. Conditions in restraint of marriage being consrdered in an unfavourable light, equity has dispensed with the want of circumstances, where the condition has been performed to a reasonable intent; as where the major part of the trustees or guardians consent(Harvey v. Aston, 1 Atk. 375. Wisemen▾. Foster, 2 Ch. Rep. 23.), or where the trustees give an implied, not an express consent (Mesgret v. Mesgret, 2 Vern. 580. Harvey v. Aston, supra.), or where they have given a conditional consent. Dailey v. Desbouverie, 2 Atk. 261. 4 Burr. 2055. 2 Ves. 535. Secus if they consent conditionally upon the offer of a settlement being made, and afterwards retract that consent on a subsequent refusal to make the settlement, Dashwood v. Bulkeley, 10 Ves. 231; but a consent to marriage being once given, cannot be withdrawn by adding terms that do not go to the propriety of giving the consent; and a settlement made even after marriage, is sufficient, where the consent is given upon the offer of a settlement. Ibid. So where a father or guardian at first encourages proposals, and afterwards without sufficient reason denies his consent. Campbell v. Lord Netterville, 2 Ves. 534. Lord Strange v. Smith, Ambl. 263. So a general permission, given by the trustee after the lega tee attained twenty-one, to contract marriage as she might think fit, and subsequent approbation of a marriage contracted under such general permission, without his knowledge, was held a sufficient compliance with such requisition. Pollock v. Croft, 1 Meriv. 181. So a marriage in the testator's life-time, with his consent or subsequent approbation, has been held to be equivalent to marriage with consent of the executors after his death. Parnell v. Lyon, 1 Ves. & B. 479. Another class of cases to which the doctrine now under consideration frequently applies, are those cases which relate to the vesting of portions and legacies made payable at the future period:-As to which it is a general rule, that where a legacy or portion, charged upon a real estate, is to be paid at a cerain age or time, if the legatee die before that age or time, it shall sink into the land and this rule holds whether the land be the primary or auxiliary fund, and whether the charge be made by deed or will, as a portion or general lagacy, for a child or srtanger, with or without interest. Pawlett v. Pawlett, 1 Vern. 321. Yate v. Phettiplace, 2 Vern. 416. Jennings v. Lookes, 2 P. Wms. 276. Duke of Chandos v. Talbot, 2 P. Wms. 602. Brown v. Abingdon, 1 Atk. 482. Van v. Clark, 1 Atk. 510. Gawler v. Standwick, 1 Bro. C. C. 106 n. Harrison v. Naylor, 3 Bro. C. C. 108. But courts of equity have allowed and established exceptions to this rule in particular instances, as when the condition annexed to the legacy had respect to the circumstances of the estate and not to the person of the legatee, they having considered that a benefit was at all events intended for the legatee, and that the time of payment alone was postponed with a view to the conveniency of the estate. King v. Withers, Forrest. 117. Hutchins v. Foy, Com. Rep. 716. 723. Lowther v. Condon, 2 Atk. 127. Emes v. Hancock, 2 Atk. 507. Sherman v. Collins, 3 Atk. 319. Hodgson v. Rawson, 1 Ves. 44. Tunstal v. Bracken, Ambl. 167. Embrey v. Martin, Ambl. 230. Manning v. Herbert, Ambl. 575. Teal v. Tichener, 1 Bro. C. C. 120 n. Clarke, v. Ross, Ibid. Kemp v. Dary, Ibid. Pawsey v. Edgar, 1 Bro. C. C. 192 n. Thomson v. Dow, 1 Bro. C. C. 193 n. Morgan v. Gardiner, Ibid. Dawson v. Killett, 1 Bro. C. C. 119. Godwin v. Munday, 1 Bro. C. C. 191. With respect to legacies payable out of personal estate, it is observable, that if the legacy be to the legatee, payable to him at a certain age, and the legatee die before he attain such age, yet this is a vested interest in the legatee (for it is debitum in presen præsenti, though solvendum in futuro), and transmissible to his representatives, who however must wait till the time at which the legacy is payable, unless the whole interest be given. Cloberry's case, 2 Vent. 342 2 Ch. Ca. 155. Collins v. Metcalfe, 1 Vern. 462. Gordon v. Raynes, 3 P. Wms. 138. Anon. 2 Vern. 199. So if the legacy be made to carry interest, though the words "to be paid or payable" are omitted, yet it is a vested and transmissible interest. Cave v. Cave, 2 Vern. 508. Cloberry's case, supra. Stapleton v. Cheales, 2 Vent. 673. Hubert v. Parsons, 2 Ves. 263. Fonnereau v. Fonnereau, 3 Atk. 645. But if the legacy be to the legatee generally, at or when he attain such age, it will lapse by the death of the legatee before such age. Cloberry's case, supra. Snell v. Dee, 2 Salk. 415. Onslow v. Smith, 1 Ab. Eq. 295, 6. Dawson v. Killett, 1 Bro. C. C. 119. But this distinction, which is borrowed from the ecclesiastical courts, does not prevail in the construction of devises of real estate, nor is it to be extended or favored in the construction of personal legacies. See Machell v. Winter, 3 Ves. 544. 2 Fonbl. Tr. Eq. 366 n. With respect to legacies charged both upon the real and personal estate, if the legatee die before the time of payment, the legacy will sink into the land, in all cases where it would be held to sink, if the fund consisted of real estate only; and it will be considered vested with regard to the personal estate, in all cases in which the same would be so adjudged, if the fund consisted of personal property only. Sherman v. Collins, 3 Atk. 320. Duke of Chandos v. Talbot, 2 P. Wms. 612. 2 Rop. on Leg. 216. With respect to equitable relief:-It is a general rule, that the court of equity will never vest an estate where, by reason of a condition precedent, it will not vest in law. Popham v. Bamfield, 1 Vern. 83. Lord Falkland v. Bertie, 2 Vern. 333. Ch. Ca. 129. 2 Freem. 220. Where, 23 |