+ Co. super Lit.

215. Dyer, 309.

Curia in Leek's

case.

Pasche 7.

Jac. Co. B.

Per Justice
Bridgman.

Doct. & Stud.

shall not have advantage of this condition. [So if
the term be merged; because in each case the
reversion is extinguished; in one case by the surren-
der; in the other case by the merger; and there
is not any privity of estate between the under-
lessee and the surrenderee.
Wright v. Russell,

3 Term Rep. p. 401; 3 Prest. Convey. p. 129].
10. † Albeit the words of the statute be general,
yet grantees and assignees shall not take benefit of
every forfeiture by force of a condition, nor yet of
all conditions, but only of such as are inherent, * *P. 153.
i. e. such as are either incident to the reversion, as
for payment of rent; or for the benefit of the
estate, as for restraining of waste, for causing of
reparations, making of fences, scowering of ditches,
preserving of woods, and the like. And of condi-
tions that are collateral, such grantees shall not
take benefit. And therefore if the condition be
for payment of a sum of money in gross; to
restrain alienation; for the delivery of corn, wood,
or the like, [unless they are to be yielded as rent,]
the grantee of the reversion of the land shall not
have advantage of it by this statute; for these
remain (as they were before the statute) at the
common law. 11. Such conditions as are on the
part of the lessor, it seems, are not within this
statute; and therefore if one make a lease for
years, on condition that if the lessor, his heirs, or
assigns, pay 101. to the lessee at Lady-day, the
lease to be void, and the lessor doth grant the
reversion to a stranger before the day; it seems the
grantee shall not take advantage of this [condition];
but the condition is gone. [Query, in equity, as a
contract to surrender.]

If one make a lease for years, rendering rent to
35. 13 H. 4. 17. him and his heirs, on condition that if it be not
paid within fourteen days, that he and his heirs
shall re-enter, and the rent is behind, and the lessor
doth demand it, and then die; in this case the
heir may enter. (Under the rules of the common
law it is difficult, if possible, to support this propo-
sition, unless the lessor re-entered or determined
the lease]. But if he die before demand, the heir
cannot make a demand, and so take advantage of...
that breach of the condition, which was in the
time of his ancestor (78).

(78) See before in page 145.

13. Where entry

or claim is need

tion; and where

If a man be possessed of land for twenty years, Perk. Sect. 834in the right of his wife, and he make a lease of it for ten years, rendering rent, with condition of reentry for default of payment, and after the husband die; in this case the wife shall have the rent, but it seems she shall not take advantage of the condition. [It has since been determined, that when a husband alone makes a lease, reserving a rent, and dies in the lifetime of the wife, the rent becomes a rent in gross, and belongs to the executors of the husband, and the reversion, cæteris paribus, will devolve to the wife. The wife cannot entitle herself to the rent, as she was not a demising party. If she had joined in the demise, the rent and the condition would have been annexed to her reversion].

If a lease be made to I. S. on condition that if Co. 1.85. such a thing be, or be not done, that the land shall super Lit. 379Dyer, 127. 117. remain to I. D. or that I. D. shall enter; in this case I. D. shall never take advantage of this condition, either by the common law, or by this statute; [for a remainder cannot be limited to take effect on the operation of a condition. But though this object cannot be accomplished by means of a condition, it may be effected through the medium of a limitation; as to I. S. till, &c. and after, &c. or in case, &c. then to I. D.; as in 3 Rep. 20 b; Arton v. Hare, Poph. p. 97; 1 Fearne, p. 3.]

Regularly where a man will take advantage of a Co super Lit.

ful to avoid an condition, if he may enter, he must enter, [at this 218.237.
estate on condi- day, bringing an ejectment is equivalent to actual
a man may take entry for this purpose,] and when he cannot enter,
advantage of a he must make a claim; for an estate of freehold or
entry, or claim; inheritance will not cease without entry or claim (79).

condition without

and where not.

And he that is to have advantage by the condition,
may waive his advantage if he will, [even though
the condition be annexed to an estate for years,
and declare that the lease shall be void. 3 Prest.
Abstr. p. 397.] And, [by force of a condition
annexed to an estate in fee,] until such entry or
claim made, the party that should enter can make
no good estate of the thing to any other; [for he

(79) Entry, by a legal owner, is a notorious act of ownership, and equivalent to a feodal investiture by the lord, and gives the owner seisin, and makes him complete owner of the estate and capable of conveying it from himself, either by descent or purchase. See further, as to the nature and manner of making entry and claim, Co. Lit. 15. 254. b. 3 Bl. Com. 175, 4 vol. 147.

has merely a right or title, and not any estate; and
no one can convey unless he has an estate. But the
person, entitled to the benefit of the condition, may
release or confirm the estate. And the impediment
to conveying exists only when the condition is an-
nexed to the inheritance or other entire estate; for if
annexed to a particular estate, the reversioner may
convey his reversion; but this conveyance will be
a dispensation, with the right of entry existing at the
period of the conveyance.) But herein a difference
is to be observed, in the penning of a condition,
between a lease for years, and a lease for life, or a
greater estate; for if a lease for years be made, on
condition that upon such a contingent the estate
shall cease, or the lease shall be void; in this case
when the thing doth happen, the lease is ipso facto
void, without entry or claim. [Query; and see
p. 153,] But otherwise it is of a lease for life, [or
other estate of freehold,] albeit there be * the same *P. 154.
words in the condition. And if one make a lease
for years, on condition that if such a thing be
done, the lessor shall re-enter; in this case an
entry is needful to avoid the estate (80). [An
actual entry is not necessary in this case. Indeed
the only case in which an actual entry is now
necessary is, to avoid the bar of a fine with pro-
clamations. An ejectment, and confession of lease,
entry and ouster in the ejectment, have superseded
in a great degree, the practice of actual entry].

If one make a feoffment in fee, gift, in tail, or
lease for life, on condition that upon such a contin-
gent the estate shall be void; in this case there
must be an entry made, after the condition is
broken, to avoid the estate. So if one bargain
and sell his land by deed indented and inrolled,
with proviso that if the bargainor pay, &c. then
the estate shall cease and be void, and he doth pay
the money; in this case the estate is not revested
in the bargainor, before an actual re-entry is made.
[But in the cases of provisoes, creating shifting uses,
&c. which operate partly as conditions and partly as
limitations, 1 Inst. 237 a, one estate will cease, and
the other commence, without any entry or claim.]
And so it is also, if lands be devised to a man and
his heirs, on condition that if the devisee do not pay

(80) No one can enter for a condition broken as bailiff to another, without the special conimand of him to whom he is bailiff. Mo. 52.

201. at a day, his estate shall cease and be void; in this case the estate is not void until an actual re-entry be made. [But under the learning of executory devises, one estate will cease, and another estate commence, without entry or claim. The conditional limitation produces this effect. 1 Prest. on Est. p. 46; 3 Prest. on Abstr. p. 126.] And so also it is if a reversion, remainder, advowson, rent, common, or the like, be devised on such a condition; in these cases there must be a claim before the estate will be determined. And therefore if a man grant such a thing to another and his heirs, on condition that if the grantor pay 201. on such a day, the estate of the grantee shall cease or be void, and the grantor doth pay the money according to the condition; in this case the estate is not revested in the grantor, before a claim made at the church in case of an advowson; and in other cases, upon the land. But in case where a man cannot make an entry or claim, there the law will not compel him to it. And therefore if one grant land to another for five years, on condition that if he pay to the grantor, within the two first years, forty marks, that then he shall have the fee, otherwise but for term of five years, and livery of seisin is made accordingly, and the grantee doth not pay this money; in this case, after the two years are past, the freehold shall be in the grantor without entry or claim; for, as this case is, he cannot enter, but he must oust the lessee of his term. [In this case, as livery was made, the grantee had the fee immediately; and, on the breach of the condition, the fee ceased, and he had a term.] So if I grant a rent-charge out of my land upon [viz. subject to a] condition; when the condition is broken, the rent is extinct, and there needs no claim. [Doe d. Hanley v. Wood, 2 Barn. & Ald. 724.] So if a man make a feoffment of land to me in fee, on condition that I shall pay him 201. such a day, &c. and before the day I let the land to him for years, rendering rent, and after the condition is broken; in this case he may retain the land without entry or claim, and the rent is extinct; [for when the condition operates, it defeats the title on which the term depended; and he shall hold the possession by virtue of his title under the condition. To enter would be actum agere.

So

if one covenant to stand seised to the use of him-
self for life, or otherwise, and then after to the
use of others, with a proviso of revocation, &c.
and after he doth revoke it; in this case all the
estates are revested in him, without entry or claim.
[This last case is referrible to the learning of con-
ditional limitations, and not of conditions.]

Co. 4. 120.
Perk. Sect. 840.

14 H. 8. 17.

[8 Rep. 42.]

It is generally true, that he that doth enter for a

Plow. 186. 482. condition broken doth make the estate void ab initio; and that he shall be in of his first estate in the same course and manner as it was when he * departed with the possession, and at the time of the making of the condition (81). And hence it is, that if there be any charge or incumbrance on the land: as if lessee of land upon condition grant a rent-charge out of the land, or enter into a statute, or recognisance, and the conusee have the land in execution, and this charge is [created] after the condition is made; in this case, when the condition is broken, and the party doth re-enter, he shall, by relation, avoid the rent, statute, and recognisance, and hold the land freed from them all; [on the principle of cessante statu primitivo cessat deinvativus]. And if an estate be to pass by way of increase, upon condition; or a lease is to be made upon a condition precedent; when the condition is performed, the party shall hold his estate free from all after-charges and clogs: [for his title has relation to the date of the grant.] And if a man enter for breach of a condition in law, he shall avoid all charges and acts done after that

Co. super Lit.

234

Perk. Sect. 843. 844

Co. super Lit.

thing is done, which doth produce the forfeiture, 233. [for his title has relation to the period of forfeiture;] [See Whitting- but he shall not avoid any thing done before that [8 Rep. 45.] time, for he must take the thing as he finds it: as

ham's case,

if a house, or land, belong to an officer, in respect
of his office, and he grant a rent out of it for his
life, and then he doth forfeit it; in this case the
rent shall continue. And if lessee for life of land
grant a rent out of it, and then make a feoffment
in fee of the land; in this case the rent shall con-
tinue, and the lessor cannot avoid [it]. But if
lessee for life of land make a feoffment in fee of it,

(81) Regularly it is true, that he that entereth for a condition broken shall be seised his first estate; but that faileth in many cases: see the instances in Co. Lit. 202 a. See further in Com. Dig. Condition (O. 6.) Vin. Abr. Condition (P. d.)

BB