enfeoff L. N. of intent and purpose that he shall enfeoff (Dyer 45 a. 11 Rep. I. S. some hold, that this is a breach of the condition; for 74 a.) quando aliquid prohibetur fieri ex directo, prohibetur et per obliquum. Or in case of aliena- If a feoffment be made upon condition, that the feoffee tions prohibited by larr. 10 H. 7. 11. Doct. & shall not alien in mortmain, this is good, because such Stud. 124. 13 H. 7. *alienation by law; and regularly whatsoever is prohibitBracton, lib. 1. fol, ed by the law, may be prohibited by condition, be it 23. 13 a. (28)* LITTLETON. malum prohibitum or malum in se. In ancient deeds of feoffment in fee there was most commonly a clause, quòd licitum sit donatori rem datam dare vel vendere cui voluerit, exceptis viris religiosis et Judæis. ALSO, if lands be given in tail upon condition, [Sect. 362.223 b.] that the tenant in tail nor his heirs (30) shall not alien Condition not to alien, in fee, (31) nor in tail, nor for term of another's life, on a gift in tail.good as to alienations working but only for their own lives, &c. such condition is a discontinuance. good. (Note here, the double negative in legal construc[COKE, 223 b.] 33 Ass. 11. 24. lib. 6. tion shall not hinder the negative, viz. sub conditione 40. 41. Mildmay's quòd ipse nec hæredes sui non alienarent. And there13 H. 7. 23. 21 H. 7. fore the grammatical construction is not always in judg11. Vid. sect. 220. ace. ment of law to be followed.) And the reason is, for (Cro. Car. 555. Hob. 191. Cro. Jac. 307. that when he maketh such alienation and discontinuAnte, 146 b. 10 Rep. ance of the intail, he doth contrary to the intent of 130. 4 Rep. 14.) [COKE, 224 a.] the donor, for which the statute of W. 2 (32) cap. 1. 10 H. 7. 11. Doct. & was made (hereby it appeareth, that whatsoewer is proStud. 124. 13 H. 7. hibited by the intent of any act of parliament, may be case. 21 H. 6. 33. prohibited by condition, as hath been said), by which statute the estates in tail are ordained (s). (30) &c. added in L. and M. (32) cap. 1. added in L. and M. (S) And such alienations, working a discontinuance, are deemed in law tortious acts, which may well be restrained by proviso. But it is otherwise of an alienation by suffering a common recovery, or levying a fine within the statutes 4 H 7. c. 24. and 32 H 8. c. 36; for this is no discontinuance, but a bar, and a liberty inseparable from the estate, as that tenant in tail may suffer a common recovery, cannot be restricted by any condition or proviso. Hob. 170. "For a condition annexed to an estate given, is a divided clause from the grant, and therefore cannot frustrate the grant precedent, neither in any thing expressed, nor in any thing implied, which is of his nature incident and inseparable from the *FOR it is proved by the words comprised in the same statute, (33) that the will of the donor in such cases shall be observed, and when the tenant in tail maketh (34) such discontinuance, he doth contrary to that, &c. And also in estates in tail of any tenements, when the reversion of the fee-simple, (35) or the remainder of the fee-simple is in other persons, when such discontinuance is made, then the fee-simple (36) in the remainder is discontinued. And because (37) tenant in tail shall do no such thing against the profit (38) of his issues, and good right, such condition is good, as is aforesaid, (39) &-c. LITTLETON. [Sect. 363.224 a.] (29)* 224 b "Against the profit of his issues." Hereby it appeareth, that to restrain tenant in tail from alienation against the profit of his issues, is good, for that agreeth with the will of the donor, and the intent of the statute(*). But a gift in tail may be made upon condition, (*) 46 E. 3. 4. that tenant in tail, &c. may alien for the pront of his (1) Rol. Abr. 418.) issues, and that hath been holden to be good, and not (33) que fuit al entent de lefesance de meme l'estatute added in L. and M. and Roh. (34) tiel-un L. and M. and Roh. (35) ou remainder en fee-simple, not in L. and M. and Roh. (36) en la reversion ou le fee-sim ple, added in L. and M. and Roh. Roh. (38) de les issues not in L. and M. nor Roh. (39) &c. not in L. and M. nor Roh. : thing granted." Ibid. Et vid. Sir Anthony Mildmay's case, 6 Co. 41. 1 E 1 223 b. 21 H. 6. 33. 13 Н. 7. restrained by the said statute, and seemeth to agree with the reason of Littleton, because in that case voluntas donatoris observetur, &c. and it must be for the profit of the issues. "But only for their own lives, &c." And yet if a man make a gift in tail, upon condition that he shall not make a lease for his own life, albeit the state be lawful, yet the condition is good; because the reversion is in the (6. Rep. 43 a. contra.) donor. As if a man make a lease for life or years upon (T) But such conditions are construed strictly in favour of the lessee. And therefore it has been determined, that if a lessee, who is restrained from alienation by a condition of this kind, assigns over his term with the consent of the lessor, such assignee may assign to any other person without a license. Dumper's case, 4 Co. 119. Whichcot v. For, Cro. Jac. 398. And it is immaterial whether the license be general, as in Dumper's case, or particular as" to one, subject to the performance of the covenants in the original lease," Brummel v. Macpherson, 14 Ves. 173.: though, if a covenant not to assign contain an exception in favour of assignment by will, it seems that executors, claiming under the will, are not within the exception, so as to be at liberty to sell for payment of debts without a license. Lloyd v. Crispe, 5 Taunt. 249. So an under-lease has been adjudged not to be within a proviso, that the lessee shall not assign without license. Crusoe, d. Bugby v. Blencowe, 3 Wils. 224. 2 Bl. Rep. 766. But where the words of the covenant were, that the lessee would not set, let, or assign over the whole or part of the premises without leave; it was held, that an under-lease amounted to a breach. Roe, d. Gregson v. Harrison, 2 T. R. 426. Et vid. Roe, d. Dingley v. Sales, 1 Maul. & S. 297. So where the proviso was, that the lease should be void "if the lessee assigned or otherwise parted with the indenture of lease, or the premises thereby demised, or any part thereof, for the whole or any part of the lerm, without leave in writing;" it was held, that the words included an under-lease. Doe, d. Holland v. Worseley, 1 Camp. N. P. С. 20. It is, however, to be observed, that an assignment by operation of law will not amount to a forfeiture. Thus it has been determined, that a sale by execution was no forfeiture of a lease, in which was contained a covenant not to let, assig, or otherwise part with the indenture. Doe, d. Mitchinson v. Carter, 8. T. R. 57. Secus where the execution is in fraud of the covenant. 8 T. R. 300. And the same rule holds in the case of an assignment under a commission of bankruptcy. Doe v. Beran, 3 Maul. & S. 353. Et vid. Doe, d. Cheere v. Smith, 5 Taunt. 795. But a landlord not incident to the estate, but given to him collaterally by the act; according to that rule of law, quilibet potest renunciare juri pro se introducto. "When he maketh such alienation and discontinu-secus as to a common ance of the intail." And therefore if a gift in tail be recovery. made upon condition, that the donee, &c. shall not alien, Vid. lib. 6. 40. 41. Sir Anth. Mildmay's this condition is good to some intents, and void to some; case. (1 Rep. 84. 1 for, as to all those alienations which amount to any dis- Rol. Abr. 418.) continuance of the state tail (as Littleton here speaketh), 10 Rep. 35 b. *224 a. or is against the statute of West. 2., the condition is good without question. But as to a common recovery, the condition is void; because this is no discontinuance, (1 Rol. Abr. 412. but a bar: and this common *recovery is not restrained 418. by the said statute of West. 2. And therefore such a condition is repugnant to the estate tail; for it is to be *observed, that to this estate tail there be divers incidents. First, to be dispunished of waste. Secondly, that the wife of the donee in tail shall be endowed. Thirdly, 22 E. 3. 9. 17 El. that the husband of a feme donee, after issue, shall be 343. Dyer. tenant by the curtesy. Fourthly, that tenant in tail may suffer a common recovery; and therefore if a man make a gift in tail, upon condition to restrain him of any of these incidents, the condition is repugnant and void in (31)* law. And it is to be observed, (*) that a collateral war- (*) 13 H. 7. 24 b. ranty (u), or a lineal with assets, in respect of the re may guard against this contingency by a proviso for re-entry on the tenant's committing an act of bankruptcy whereon a commission shall issue; which has been held to be good. Roe v. Gailliers, 2 T. R. 133. If the lessor accept rent due after condition broken, with notice, it is a waver of the forfeiture. Goodright, d. Walter v. Davids, Cowp. 804. Whichcot v. Fox, Cro. Jac. 398. But a lessor who has a right of re-entry reserved on breach of a covenant not to underlet, does not, by waving his re-entry on one underletting, lose his right to re-enter on a subsequent underletting. Doe, d. Boscawen v. Bliss, 4 Taunt. 735. And equity will not relieve against a forfeiture by breach of a covenant not to assign. Hill v. Barclay, 18 Ves, 656.--[Ed.] (U) This must be understood of a collateral warranty before the statute of 4 Ann. c. 16. For some observations as to the restraints which at different periods have been imposed on the free alienation of property, and the methods adopted to elude them, see the note to fol. 118 b. post, chap. 33. Of Title by Alienation.-[Ed.] [The restraints which at different times have been laid on the free alienation of property, and the different methods used to set them aside, form one of the most interesting parts of the history of every nation in which the feudal institutions have compense, is not restrained by the Donis Conditionalibus, no more is the common recovery in respect of the intended recompense. And Littleton, to the intent to exclude the common recovery, saith, such alienation and discontinuance, joining them together. If a man before the statute of Donis Conditionalibus had made a gift to a man and to the heirs of his body, upon condition that after issue he should not have power to sell, this condition should have been repugnant and void (w). Pari ratione, after the statute a man makes a a gift in tail, the law tacitè gives him power to suffer a common recovery; therefore to add a condition, that he shall have no power to suffer a common recovery, is repugnant and void. If a man make a feoffment to baron and feme in fee, prevailed. So far as the history of England is concerned in them, they have been discussed with great accuracy by Sir William Blackstone, vol. 2. chap. 7. and Sir John Dalrymple, in the history of the Feudal Law, chap. 3. & 4. The introduction of recoveries, and the circumstances which led the way to them, are accurately stated and explained by Mr. Cruise, in his most excellent Essay on the Law of Recoveries. The restraints on the alienation of property are much greater in Scotland than they are in England. There if a Tailsie is guarded with irritant and resolutive clauses, the estate entailed cannot be carried off by the debt or deed of any of the heirs succeeding to it, in prejudice of the substitutes. This degree of tailzie differs from that of a tailzie with prohibitory claus es. The proprietor of an estate of this nature cannot convey it gratuitously, but he may dispose of it for onerous causes, and it may be attached by his creditors; yet the substitutes as creditors by virtue of the prohibitory clause, may by a process, called in the law of Scotland, an Inhibition, secure themselves against future debts or contracts. A third degree of tailzie used in Scotland is called a simple distinction. This amounts to no more than a designation who is to succeed to the estate, in case the temporary proprietors of it make no disposition of it; for it is defeasible and attachable by creditors. See Ersk. Inst. 238. 360. Butler. Note 133.] (W) Lord Coke in another work observes, "that the tenant of lands intailed had before this statute a fee-simple conditional subsequent; for, albeit Britton (cap. 36), who wrote before this statute, saith, that if any purchase to him and his wife, and to the heirs of them lawfully begotten, the donees have presently but an estate of freehold for the term of their lives, and the fee accrueth to their issue, &c. taking the condition to be precedent, yet had the donees at the common law a fee-simple conditional presently by the gift. For if land had been given to a man and the heirs of his body issuing, and before issue he had, before this statute, made a feoffment in fee, the donor should not have entered for the forfeiture, but this feoffment had barred the issue had afterwards; which proveth that he presently by the gift had a fee-simple conditional." 2 Inst. 333. -[Ed.] |