32 Ε. 3. Annu. 30. 14 Ε. 4. 4. 41 Ε. 3. 19. But if A, pro consilio impenso, &c. make a feoffment, 9 E. 4. 20. or a lease for life, of an acre, or pro una acra terræ, &c. 15 E. 4. 2 b. 8 H. 6. albeit he denieth counsel, or that the acre be evicted, yet 23. 5 E. 2. tit. Annu. A shall not re-enter; for in this case there ought to be 32 E. 1. Avowrie 242. legal words of condition or qualification; for the cause 21 Ε. 4. 49. 22 Ε. 4. or consideration shall not avoid the state of the feoffee. 10 E. 3. 44. 5 Ε. 2. *And the reason of this diversity is, for that the state of 9 Ε. 4. 20. 15 Ε. 4. 3. the land is executed, and the annuity executory. (8)* 28. 35 H. 6. 2. 34 Ass. 1. 40 Ass. 13. 34. tit. Condition Br. And yet sometime in case of lands or tenements (causa) Fleta, lib. 5. cap. 34. shall make a condition. As if a woman give lands to a man and his heirs, causâ matrimonii prælocuti, in this case if she either marry the man, or the man refuse to marry her, she shall have the land again to her and to her heirs. (a) But of the other side, if a man give land to a (a) 5 E. 2. Cui in vita woman and to her heirs, causâ matrimonii prælocuti, 5 H. 4. 1. though he [B] marry her, or the woman refuse, he shall not have the land again, for it stands not with the modesty of women in this kind, to ask advice of learned counsel, as the man may and ought; (*) and the rather, (*) 12 E. 1. 1. Feofffor that in the case of the woman she may aver the cause, menN. B. 205. Vid. (for the reason aforesaid) although it be not contained in sect, 365. the deed, yea though the feoffment be made without deed. and Faits 114. 7 H. 4. 22. 31 H. 8. If a man maketh a feoffiment in fee, ad faciendum, Less precise words of or faciendo, or ed intentione, or ad effectum, or ad condition, sufficient in propositum, that the feoffee shall do or not do such an Ad faciend, ea intenthe king's case, act, none of these words make the state in the land con- tione, &c. Dyer 138, ditional; for in judgment of law they are no words of tit. Condition, 19. Br. condition; and so was it resolved, Hill. 18 Eliz. in Com. Pl. Com. 142. Banco, in the case of a common person; but, in the case Doct. & Stud. lib. 2. 38 H. 6, 33. 36, 37. of the king, the said or the like words do create a condi- cap. 34. 27 H. 8. 18 a. tion, and so it is in the case of a will of a common per- (1 Rol. Abr. 407.408. son, which case I myself heard and observed. 32 E. 3. Breve 291. 409.410. Moore 57. 2 Leon. 33. 3. Rep. 64 a. 10 Rep. 42 а.) in wills, But, for the avoiding of a lease for years, such precise and leases for years. (B) Here, it seems, the text should be read as if the words, though he do not marry her, had been used by Lord Coke. Note to 18th Lond. Edit. 1923. VOL. IL. 10 words of condition are not so strictly required, as in case (b) 7 E. 6. Dyer 79. of freehold and inheritance. (b) For if a man by deed 28 H. 8 Dyer 27 a subpæna forisfacturæ, make a lease of a manor for years, in which there is Quod non licebet. 3 E. 6. Dy. 65.66. 4 Mar. 138. (c) Hill. 40 Eliz. Rot. 1610. inter Browne and Ayer. Vid. Pl. Com. 142. Br. and Bestone's case. (9)* 225 b. 2. What shall be condition, or not. a clause (and the said lessee shall continually dwell upon the capital messuage of the said manor, upon pain of forfeiture of the said term) these words amount to a condition. And so it is if such a clause be in such a lease, Quod non licebet, to the lessee, dare, vendere, vel concedere statum, et sub pœnâ forisfacturæ, this amounts to make the lease for years defeasible; and so it was adjudged in the court of common pleas (c) in queen Elizabeth's time; and the reason of the court was, that a lease for years was but a contract, which may begin by word, and by word may be dissolved. 1 *There is a difference between a rent and a re-entry, for, a gift in tail, or a lease for life, a rent may be re a good upon served without deed (D); but a condition, with a re-en(35 E. 3. 21 a. Sect, try, cannot be reserved in those cases, without deed. 308 b. 338 a. 214.) Post LITTLETON. ALSO, if a man make a deed of feoffment to [Sect. 359.222 b.] another, and in the deed there is no condition, &c. [COKE 222 b.] (either in deed or in law) and when the feoffor will make livery of seisin unto him by force of the same deed, he makes livery of seisin unto him upon certain condition (22); in this case, nothing of the tenements passeth by the deed, for that the condition is not comprised within the deed, and the feoffment is in like force as if no such deed had been made. And the reason hereof is, for that the estate passeth by the livery of seisin (23). And in this case the feoffor, upon the delivery of seisin, must express the state to him and his heirs, or to the heirs of his body, &c. (D) This is to be understood, at common law, before the 29 Cha, 2. 3.-(Ed.) If an agreement be made between two, that the one shall infeoff the other upon condition, in surety of the payment of certain money, and after the livery is made to him and his heirs generally, the state is holden by some to be upon condition; inasmuch as the intent of the parties was not changed at any time, but continued at the time of the livery (E). * If a man make a charter of feoffment in fee, and the feoffor deliver seisin for life, the feoffee shall hold it but for life; but if the livery be expressly for life, and also according to the deed, the whole fee-simple shall pass; because it hath reference to the deed. ALSO, if land be granted to a (24) man for term (24) home not in L. and M. nor Roh. (E) A mortgage will not be easily presumed against an absolute conveyance, especially if the possession has gone along with the conveyance, Cottrel v. Purchase, Forrest. 61.; but parol evidence is admissible to show or explain the real intention and purpose of the parties, though the conveyance be absolute. Maxwell v. Montacute, Pre. Ch. 526. Walker v. Walker, 2 Atk. 98. Joynes v. Statham, 3 Atk. 388. So if a man for money mortgage land to B. by deed, being of greater yearly value than the interest money, and before the sealing of the deed it was agreed by word,, that the mortgagor should have and receive the profits, not the mortgagee, this is good and usual in such cases, and B may plead the verbal agreement to avoid the danger of usury. Burglacy v. Ellington, Brownl. Rep. 191. For, in such cases, the proof offered is not considered as a variation of the agreement, but only explanatory of what it was meant to have been. But it is a general rule, that parol evidence is not admissible to contradiet, or vary, or add to the terms of a deed, Countess of Rutland's case, 5 Co. 26. Buckler v. Millerd, 2 Ventr. 107. Tinney v. Tinney, 3 Atk. 8. Haynes v. Hare, 1 H. Bl. 659. Mease v. Mease. Cowp. 47.: and where the deed is not impeached for fraud, or other illegal matter (Collins v. Blantern, 2 Wils. 347. Pole v. Harobin, 9 East. 416. n. Paxton v. Popham, 9 East, 406.), no consideration can be averred or proved contrary to that expressed in the deed; though it is not considered to be contrary to, or inconsistent with a deed, to prove another consideration in addition to the consideration expressed. 2 Rol. Abr. 786. 1 Co. 176. Dyer, 146 a. Vernon's case, 4 Co. 3. Craythorne, v. Swinburne, 14 Ves. 170. Phil. Law. Evid. 425. So it is an established principle in courts of equity as well as in the common law courts, that parol evidence of the intention of the parties is not admissible to vary, or add to the terms of a written agreement. Fell v. Chamberlaine, 2 Dick. 424. Hare v. Shearwood, 1 Ves. 241. Jordin v. Sawkins, 3 Br. C. C. 388. Jackson v. Cater, 5 Ves. 688. Wollam v. Hearne, 7 Ves. 211. But when a court of equity is called upon to exercise its peculiar jurisdiction, by decreeing a specific performance, the party to be charged is admitted to show, that, under the circumstances, the plaintiff is not entitled to have the agreement specifically performed. S. C. 7. Ves. 219. Clarke v. Grant, 14 Ves. 524. Ramsbottom v. Gosden, 1 Ves, & B. 165. Winch v. Winchester, 1Ves. & B. 375. [Ed.] 34 Ass. Pl. 6. (10)* 13 E. 3. tit. Estoppel 177, 19 E.3. Ibid 184. LITTLETON. [Sec. 349.216 a.] Condition precedent, to enlarge an estate, when good. of two years upon such condition, that if he shall pay by the grantor, and after he payeth the grantor the [COKE, 216 a.] 40 marks within the two years; yet he hath nothing (8. Rep. 73. Plowd. in the land but for term of two years, because no live184.) (Ant. 26.) 216 a. (11)* Vid. sect. 60. (Post, 48 a.) ry of seisin was made unto him at the beginning. For if he should have a freehold and fee in this case, because he hath performed the condition, then he should have a freehold by force of the first grant, where no livery of seisin was made of this, which would be (26) inconvenient, &c. But if the grantor had made livery of seisin to the grantee by force of the grant, then should the grantee have the freehold and the fee upon the same condition. Here six things are to be observed. First, Littleton here putteth an example of a condition precedent (F). Secondly, that such a condition which createth an estate may be made *by parol without deed (G). Thirdly, that livery of seisin in this case must be made before the lessee enter (as Littleton here saith at the beginning), for, after his entry, livery made to him that is in possession is void (H). Fourthly, that if no livery of seisin be made, that no fee simple doth pass, although the money be paid. Fifthly, that it is inconvenient that the feesimple should pass in this case without livery of seisin. Sixthly, that argumentum ab inconvenienti is forcible in law, as often hath been and shall be observed. See (25) que added in L. and M. and Roh. (26) inconvenient, &c.-encontre reason in L. and M. and Roh. (F) As to conditions precedent and subsequent, see ante, n. (A.) p. 1. and infra, n. (K) p. 19.-[Ed.] (G) That is, at common law, before the statute of Cha. 2. c. 3. [Ed.] (H) Vide 48 a. post, Chap. 36. Of feoffments.-[Ed.] more of this kind of condition in the section next following (*) (1). [Sect.350.216 b.] ALSO, if land be granted to a man for term of LITTLETON. five years, upon condition, that if he pay to the grantor within the two first years forty marks, that then he shall have fee, or otherwise but for term of the five years, and livery of seisin is made to him by force of the grant, now he hath a fee-simple conditional, &c. And if in this case the grantee do not pay to the grantor the forty marks within the first two years, then, immediately after the said two years past, the fee and the freehold is and shall be adjudged in the grantor, because that the grantor cannot after the said two years presently enter upon the grantee, for that the grantee hath yet title by three years, to have and occupy the land by force of the same grant. (By [COKE, 218 b.] this it appeareth, that albeit the lessee had pro tempore a fee-simple, yet after that fee-simple is divested out of him, and vested in the lessor, he shall hold the land for three years by the express limitation of the parties). And so, because that the condition of the part of the grantee is broken, and the grantor cannot enter, the law will put the fee and the freehold in the grantor. For if the grantee in this case makes waste, then after the breach of the condition, &c. and after the two *years, the grantor shall have his writ of waste. And this is a good proof then, that the reversion is in him, &c. "Then he hath a fee-simple conditional, &c." The like is of an estate in tail, or for life. : *217 a. 261 b. (5 Rep. 98.) Many are of opinion against Littleton in this case, and On lease for years,conditioned to have fee, their reason is, because the fee-simple is to commence and livery thereupon, upon a *condition precedent, and therefore cannot pass un-whether a fee conditil the condition be performed; and that here Littleton tional passes? (12)* See the next note. (1) See Mr. Butler's note at the end of the Vol. Note 3. |