Dyer, 45.

Co. 5. 96.

d

is to receive it, accept and take new security by bond or statute for the money; this is a good performance of the condition. And so in most cases, when by a condition a thing is to be done one way, and to be done to the party to the condition himself, and not to a stranger, and he doth accept it another way; this is a good performance of the condition (59). Volenti non fit injuria. But if the thing to be done, be to be done to a stranger, and one that is no party to the condition, and it be done in any other manner, and he accept thereof; this is no performance of the condition; [and therefore a payment pro forma, or a covenous payment, or an allowance in account, will not be a performance of a condition, so as to prejudice a stranger. Goodale v. Wyet, Cro. Eliz. 383; Doe & Martin, 4 Term Rep. p. 39.] And so also if the time of doing the thing be past, as if one make a feoffment to me, on condition that if Perk. Sect. 392. he pay me 107. such a day, the feoffment shall be void, and he doth not pay me at the day, but doth die, and after by agreement between his heir and me, he doth pay me the 10l. and I receive and accept it, and thereupon I suffer him to enter and hold the land; in this case the condition is not performed, but I may enter upon him and oust him notwithstanding. [Therefore, in cases of this sort, either a new conveyance, a release, or a confirmation, should be taken, according to the circumstances. In cases of this description equity has jurisdiction.]

Adjudged Mich. 40 & 41 Eliz. B. R. Powel versus Bartholomew.

Co. 5. 96.

If the mortgagor pay the money according to the condition, and after the mortgagee deliver it to the mortgagor as his own money, the condition is performed, and the mortgage discharged notwithstanding. [But, as against strangers, a payment pro forma, or a covenous payment, is as no payment, and the condition will not be performed, as already noticed.]

If a feoffment be made to I. S. on condition that super Lit. 209. if the feoffor pay to the executors or administrators of I. S. 10l. the feoffment shall be void, and I. S. die, and the 10l. are paid to the executors of I. S. according to the condition, but it is covenously done, i. e. there is a private agreement, that the feoffor shall have all, or part of his money again ; this payment, in this case, is no good performance (59) See accordingly Goodale v. Wyet, Cro Eliz 283. Moor 708.

To get the goodwill of I. S.

2. When the act

stranger. To pay money.

*P. 144.

of the condition; but that payment that must be a
performance of a condition, in this case, to fetch
lands out of the hands of an heir, must be real,
full and effectual. [4 Term. Rep. p. 39.]

If a lease be made, on condition that the lessee 14 H. 8. 17. shall get the good-will of I. S. and the lessor doth come to I. S. first, and ask his good-will, and he deny it him, and after, when the lessee doth ask it, he doth grant it him; in this case the condition is performed. So if the condition be, that he shall get his good-will by such a day, and at the first being desired he denied it, but afterwards and before the day he doth grant it; [because he obtain his good-will before the appointed day.] And yet if no day be set, and he desire his good will, and I. S. denieth it, and afterwards, he doth get his good-will; it seems this is no performance of the condition, [because the condition was once broken.]

See before.

If there be two things in the copulative to be Perk. Sect. 746. done by the condition, both must be done, otherwise the condition will not be performed; [unless one of them becomes impossible by the act of God, or by the act or default of the other party, not being a stranger.]

*

219.

If a feoffment be made, on condition that if the Co. super Lit. is to be done by a feoffor and I. S. pay 107. at Michaelmas, the feoffment shall be void, and before the day the feoffor die, and I. S. pay the money; this is a good performance of the condition. But if the feoffor be living, contra. [Query, whether one may not pay in the names and on the behalf of both; and whether a payment, by one generally, would not be deemed a payment by both.]

3. When the act

If a feoffment be made, on condition to make Plow. 133. Co. 3. 64. is to be done to an estate to a stranger by a day, and before the a stranger. To make an estate. day he die; in this case, if an estate be made as near the condition as may be, it is sufficient. [An executory devise was to take effect, on payment by C. of a given sum of money, within three months after the death of A.: payment by the heir of C. was deemed a performance of the terms of the limitation. Marks v. Marks; Str. 129.]

+ Tender.

+ If a feoffment be made to I. S. on condition Co. super Lit. that he shall enfeoff I. D. [being a stranger,] and 19 H. 6. 67. his heirs; and I. S. doth tender the feoffment to Perk Sect.

815, 816.

2 E. 4. 2.
19 H. 6. 67.

Co. super Lit.

222.

Dyer, 45, 46.

Dyer, 45. 65.

I. D. and he doth refuse to take it; this is no
performance of the condition in this case. But if
it be to be done to the feoffor himself, contra.
[For in the case of a stranger, the party takes on
himself to do the act, and the condition will ope-
rate, unless the act be done. The true ground of
the case seems to be, that the nature of the con-
tract requires that the feoffor should have the
land again, unless I. D. would accept it. No
intention existed that it should remain with the
feoffee.] And so also it is, if the condition be to
make an estate tail, or any lesser estate to a
stranger, and he tender it, and the stranger refuse
it; this is no good performance of the condition.
And if a feoffment be made, on condition to
re-enfeoff the feoffor and his wife in tail, the re-
mainder to W. in fee, and he tender it to the wife
only, and not to him in remainder; this is no good
performance of the condition (60).

And the same law, for the most part, is in condi-
tions of obligations. See more in Obligations,
numb. 9.

of a condition in

a condition in

not.

If a feoffment be made, on condition that the 10. What act feoffee shall not enfeoff I. S. of the land, and the shall be a breach feoffee doth make a feoffment to I. S. and I. D.; deed: and when this is a breach of the condition, [for he hath deed shall be said enfeoffed I. S.] And so also it is, if the feoffee to be broken; or make a feoffment to I. D. to the intent that he Not to alien. shall alien to I. S. Quando aliquid prohibetur fieri directo prohibetur & per obliquum. And yet if the feoffee, in the case before, alien to I. D. and after he [I. D.] doth [of his own accord] alien to I. S. this is no breach of the condition. And if the condition be, that the feoffee shall not enfeoff I. S. and he die, and his heir enfeoff I. S. this is no breach of the condition, [for the restraint was personal to I. S.]

If a lease for years be made, on condition that the lessee shall not assign, or alien, the term, or the land, during his life, without the licence of the lessor, and the lessee doth give it by his will without licence; this is a breach of the condition, and forfeiture of the estate. But if he make an executor of his will only, this is no breach; [for there is not any alienation, but merely a devolution

(60) See more amply by whom, and to whom, a condition is to be performed, in the references in a note to page 131. See further Marks v. Marks, Str. 129. Vin. Abr. Conditions (K. a.) (L. a.)

*P. 145.

by act of law. Or, it should seem, if the same
person be legatee and executor. Lord Windsor v.
Barry, note to Dyer, 45 b. sed query; and see
Moor, p. 351, contra.] And if the condition be,
that the lessee shall not alien, and he die, and his
executor alien, this is no breach of the condition,
[for the condition is not extended to the executor.]

And if the condition be, that the lessee shall not Per 3 Justices.
alien but to his children, and the lessee by will B. R. 3 Jac.
devise it to his executors; it seems this is a breach
of the condition. So if he devise that A. his son,
shall have his term after his wife, and doth make
A. his son, his executor; it seems this is a breach
of the condition. But if he do not make A. his
executor, contra. [For in one case there is impliedly
a bequest to the wife; in the other case there is not
any. See Essay on Est. vol. 1, p. 195. So if I devise
to my heir, after the death of my wife, the wife
will have an estate for life, by implication; otherwise
if the devise be to a stranger after the death of my
wife.] And in cases of devise, albeit the executors
do not assent, yet the condition is broken; as in
case where a reversion is granted, on condition
that the grantee shall not alien it, and he doth
alien it, but no attornment is to this grant; yet
it seems this is a breach of the condition, [for Dyer, 6.
he has aliened as far as it was in his power.
if the conveyance was defective, for want of some
essential circumstance; then, as there is not any
alienation, there would not be any breach of the
condition. On this point, see Testament, and Con-
structive Revocations.] And if a lease for years be
made, on condition that the lessee or his assigns
shall not alien, and the lessee doth make his wife his
executrix, and she doth take another husband, and
he doth alien it; it seems this is a breach of the
condition, and a forfeiture of the estate. But if a
lease be made, on condition that the lessee shall not
alien without the licence of the lessor, [so as to be
personal to him,] and after the lessor die and the
lessee assign, or the lessee die and his executors,
or administrators, assign; this is no breach of the
condition in either of these cases (61), [for the

*

But

(61) And if the condition be not to alien the land, nor any part thereof, and the lessee aliens part with the lessor's assent, he may afterwards alien the residue without his assent; the whole condition being gone, for it cannot be divided. Roll. Abr. 471. See further Com. Dig. Condition (Q.)

Dyer, 158.
Co. 4. 120.

restraint was personal to the lessee and lessor, and is determined.] So if a lease be made, on condition that the lessee shall not alien the term during his life, and he makes an executor, but doth not devise it to him; this is no breach of the condition. [See p. 144.] And if a lease be made, on condition that the lessee, his executors, or assigns, shall not alien the term to any persons without the licence of the lessor, but to the wife, or one of the children of the lessee, and the lessee die, and his executors alien to one of the children of the lessee, and he alien to a stranger, without licence; this is no [5 Taunt. 254. breach of the condition (62). [The opinion of Dyer, &c. in the note, seems most reasonable, since the condition is extended in terms to the assigns; and the son is an assignee.] And if one Marsh v. Curtis. make a lease of a house and land, on condition that the lessee shall not parcel out the land or any part of it from the house, and the lessee doth grant all his term in the house and part of the land, and doth keep the rest, and after doth lease that part also; this is a breach of the condition; [for the object of the condition, and therefore the construction, is, that the house and land should be held together, and should not be separated by alienation or reservation.]

14 Ves. 174.]

Hil. 38 El.

Co. 8. 92.

13 H. 4. 5.
Bro. Condition,

40.

in the

If a lease be made of a house, on condition Not to suffer that the lessee shall not suffer any woman great child in a woman with with child to harbour or lodge in the house six house. days after notice given by the lessor, and the lessee do suffer any such person after notice given, albeit the lessor consent to it; yet the condition is broken; [but equity might relieve.] But if the lessor do nolens volens keep such a woman there against the mind of the lessee; this is no breach of the condition; [since this is the act of the lessor, and not of the lessee; and the lessor cannot take advantage of his own wrong.]

If a lease be made, on condition that if any waste Not to do waste. be done the lessor shall re-enter; in this case, if

the house fall by a tempest, this is no breach of the
condition, for this is not waste; but if it [the

(62) In Dyer, 152 a. Brooke, Brown, and Dyer held, that by the grant to one of the sons, the restraint was not determined, and that the son could not grant over to a stranger without licence; but Stamford and Catline, contra. See further the case of Thornhill and

Adams v. King and Wife, Cro. Eliz. 757.