4

(4)*

*201 b.

LITTLETON.

the rent be behind, &c. that it shall be lawful for the feoffor and his heirs into the same lands or tenements to enter,&c. [Ou si terre soitalien a un home en fee rendant a lui certaine rent, &c.] (A) And if it happen the rent to be behind by a week after any day of payment of it, or by a month after any day of payment of it, or by (6) half a year, &c. that then it shall be lawful to the feoffor *and his heirs to enter, &c. (7) In these cases if the rent be not paid at such time, or before such time limited and specified within the condition comprised in the indenture, then may the feoffor or his heirs enter into such lands or tenements, and them in his former estate to have and hold, and the feoffor quite to oust thereof. And it is called an estate upon condition, because that the state of the feoffee is defeasible, if the condition be not performed, &c.

Here Littleton putteth one example of six several kinds of conditions. That is, first, of a single condition in deed. Secondly, of a condition subsequent to the estate. Thirdly, a condition annexed to the rent, &c. Fourthly, a condition that defeateth the estate. Fifthly, a condition that defeateth not the estate before an entry. And lastly, a condition in the affirmative, which implieth a negative, (as behind or unpaid implieth a negative) viz. not paid. All which do appear by the express words of Littleton.

1

IN the same manner it is if lands be given in tail, [Sect.326.202b.] or let for term of life, or (8) of years, upon (9) condi

sion, &c.

(6) un-demy not in L. and M. nor Roh.

(7) Et added in L. and M. and Roh.

(8) a terme added in L. and M.

Roh.

(9) tiel added in L. and M. and Roh.

(A) Part of the original French is here inserted, because the words "rendant a lui certaine rent," &c. are not noticed in the translation of the section, though the same words are commented by Lord Coke, 201 b Note from 18th Lond. Ed. 1823.]

This &c. implieth the several kinds of conditions in deed before specified.

ALSO, divers words (amongst (10) others) there be, which by virtue of themselves make estates upon condition; one is the word (11) sub conditione: as if A. infeoff B. of certain land, to have and to hold to the said B. and his heirs upon (12) condition, that the said B. and his heirs do pay, or cause to be paid to the aforesaid A. and his heirs yearly such a rent, &c. In this case, without any more saying, the feoffee hath an estate upon condition.

"Such a rent, &c." This (&c.) implieth any other rent, or sum in gross, or any collateral condition whatsoever, either to be performed by the feoffee, (whereof our author here putteth his case) or by the feoffor, and extendeth to all kinds of conditions in deed before specified.

202 b.

LITTLETON.

[Sect.328.203 a.]

1. By what words created. Effect of the words.

"Sub conditione." *203 b.

203 b. Vid. sect. 325.

203 a.

Sub conditione.

27 H. 8. 15. 13 H.4.

Here in this and the next two sections Littleton doth Marie, Dyer 138. put four examples of words that make conditions in deed: Entre Cong. 57. and first, sub conditione. This is the most express and 29 Ass. 7. 33 Ass. 11. proper condition in deed, and therefore our author begin- ubi supra. Fleta,

neth with it.

40 Ass. 13. Bracton,

lib. 4. cap. 9. Brit, cap. 36. & ubi supra,

(5)* LITTLETΟΝ.

*ALSO, if the (13) words were such, Provided always, that the aforesaid B. do pay or cause to be paid (Sect. 329.203 b.) to the aforesaid A. such a rent, &c.; or these, So that

the said B. do pay or cause to be paid to the said A. such a rent, &c. ; in these cases, without more saying, the feoffee hath but an estate upon condition; so as if he doth not perform the condition, the feoffor and his heirs may enter, &0.

:

Proviso,
Ita Quod,

203 b.

220. Dier. 28 11. 8.

"Provided always, that B. pay, &c." Our author Proviso. Vid. sect. putteth his case where a proviso cometh alone. And so fol. 13. 27 H. 8. fol. it is if a man by indenture letteth lands for years, provi-14. 15. 13 П. 4.

(10) les added in L. and M. and

Entre Cong. 57. (12) ista added in L. and M. and Seignior Cromwell's case, lib. 2. fol. 71. (13) parols-condicions. in L. 72. at large. 35 H. 3.

5 6

ded always, and it is covenanted and agreed between the said parties, that the lessee should not alien ; and it was adjudged that this was a condition by force of the proviso, and a covenant by force of the other words (B).

This word proviso shall be also taken as a limitation or qualification, as hereafter in his proper place shall be said. And sometime it shall amount to a covenant. All which

*) 27 H. 3. 15, &c. do appear by the authorities in the margent (*).

Ita quod. Fleta, lib. 4. сар. 9. Bracton, ubi supra. Britton, ubi supra.

(Dyer 13. b.)

LITTLETON.

[Sect. 330. 203b.] Quod si contingat,

(6)*

203 b.

For the &c. in this section explanation is made in the section next before.

"Ita quod." This is the third condition in deed, whereof our author maketh mention.

ALSO, there be other words in a deed which cause the tenements to be conditional. As if upon such feoffment a rent be reserved to the feoffor, &c. and afterward this word is put into the deed (14), That if it happen the aforesaid rent to be behind in part or in all (15), that then it shall be lawful for the feoffor *and his heirs to enter, &c.; this is a deed upon con

dition.

" Quod si contingat, &c." This is the fourth condi

(Ante, 146 b.) 6 E. 2. tion in deed set down by our author.

Entrie Cong. 65.

8 E. 2. AS. 320. ad

judged. Quod si con

(14) cest parol not in L. and M.

tingat. Pasch. 37 El. nor in Roh,

Rot. 254. inter Sayer

et Hares in Com. Ban

co.

(15) &c. added in L. and M. and in Roh.

(B) So the word "proviso" may operate as a condition, although there be covenants before. 3 Dy. 311. 2 Co. 70 b. 1 Rol. Abr. 410. But if the clause in which it stands has dependence on another clause of the deed, or be the words of the feoffee, to compel the feoffor to do something, then it is not a condition, but only a covenant. Sheph. Touch. 122. Moor, 307.707,

Where the word "proviso" shall be taken to be only a qualification or explication of a covenant or grant, see 2 Leon. 128. 3 Leon. 225, 226. Dy. 222. 4 Leon. 70. 3 Leon. 16. Poph. 119. Gouldsb. 131. And. 71,72. Mo. 707. 2 Co. 72 a. As to the difference between a condition, a remainder, and a conditional limitation, see the note to fo. 214 b. post. -[Ed.] [See Mr. Butler's note at the end of the vol. Note 2.]

:

LITTLETΟΝ.

BUT there is a diversity between this word si contingat, &c. and the words next aforesaid, &c. For these [Sect.331.204.b.]

(Diversity between words, si contingat, &c. are nought worth to such a quod si contingat, and condition, unless it hath these words following, "That other words of condi it shall be lawful for the feoffor and his heirs to enter,"

&c. But in the cases aforesaid, it is not necessary by the law to put such clause, scilicet, "that the feoffor and his heirs may enter," &c. because they may do this by force of the words aforesaid, for that they contain (16) in themselves a condition, scilicet, that the feoffor and his heirs may enter, &c. Yet it is commonly used, in all such cases aforesaid, to put (17) the clauses in the deeds, scilicet, if the rent be behind, &c. that it shall be lawful to the feoffor and his heirs to enter, &c. And this is well done, for this intent, to declare and express to the common people, who are not learned (18) in the law, (19) of the manner and condition of the feoffment, &c. As if a man seised of land (20) letleth the same land to another by deed indented for term of years, rendering to him a certain rent, it is used to be put into the deed, that if the rent be behind at the day of payment, or by the space of a week, or a month, &c. that then it shall be lawful to the lessor to distrain, &c. (21) yet the lessor may distrain of common right for the rent behind, &c. though such words were not put into the deed, &c.

१.

"Or a month, &c." Here, albeit the clause of distress be added, that if the rent be behind by the space of a week or a month, that the lessor may distrain, yet he may distrain within the week or month, because a distress is incident of common right to every rent-service. And the words be in the affirmative, and therefore cannot restrain that which is incident of common right.

*The other &c. in this section upon that which hath been said are evident.

tion.)

20.5

(7)

Pro. 24 E. 3. 34.
(Hob. 41. 42. 10. Rep.
42: Plo. 141 á.

7 Rep. 9 b. 10. 28 b.
Ante. 144 a. 9 Rep.
50 ат

Post, 237 a.)

By section 330, it is evident that some words of themselves do make a condition, and some other (where of our author in section 331 putteth an example) do not of themselves make a condition without a conclusion and clause of re-entry : and many times (si) makes a condition (c), and sometimes a limitation, as hereafter shall be said in this chapter.

Inesse potest donationi modus, conditio, sive causa (*) Scito quòd (ut) modus est (si) conditio (quia)

causa.

Conditio is explained before. Modus is at this day properly taken for a modification, limitation, or qualification, for the which also the law hath appointed, apt words; and because Littleton speaketh of this also in the end of this chapter, I will reserve this matter to his proper place, where, the reader shall perceive excellent matter of learning touching this point.

Causa, the cause or consideration of the grant. And herein there is a diversity between a gift of lands, and a gift of an annuity, or such like. For example, if a man grant an annuity pro una dera terræ, in this case this word pro showeth the cause of the grant, and therefore amounteth to a condition; for, if the acre of land be evicted by an elder title, the annuity shall cee, for cessante causa cessat effectus.

And so if an annuity be granted pro decimis, &c. if the grantee [A] be unjustly disturbed of the tithes, the annuity ceaseth. And so it is if an annuity be granted pro consilio, and the grantee refuse to give counsel, the annuity ceaseth. So if an annuity be granted quòd præstaret consilium, this makes the grant conditional.

(C) That the general meaning of the word "if" implies a condition precedent, unless it be controlled by other words, see Bromfield v. Crowder, 1 N. R. 325.-[Ed.]

((A) Instead of grantee, it should be grantor, as it seems. See Mr. Ritso's Intro. p. 119. Note from 18th Lond. Edit. 1823.]