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.
(4) &c. not in L. and M. nor Rob.
(5) simple not in L. and M. nor

Roh.

LITTLETΟΝ.

[Sect. 325.201.a] Conditions in deed.

*

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 soit alien 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. defeateth not the estate before an entry. Fifthly, a condition that condition in the affirmative, which implieth a negative, And lastly, a (as behind or unpaid implieth a negative) viz. not paid. All which do appear by the express words of Little

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.

202 b.

LITTLETON. [Sect. 328.203 a. 1. By what words created.

Effect of the words,

Sub conditione," 203 b.

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.]