LITTLETON. The different kinds of conditions. 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 defeated, or enlarged, or created upon an uncertain event. Conditio dicitur cùm quid in casum incertum qui potest tendere ad esse aut non esse confertur. ESTATES which men have in lands or tenements (1) upon [Sect. 325. 201 a.] condition are (2) of two sorts, viz. (3) either they have estate condition in deed (quæ est facti, that is, upon a condition expressed by the party in legal terms of law), or upon condition in law (4), &c. [COKE, 201 a.] upon (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. c. not in L. and M. nor Rob. (4) 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, 215 a. 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. 68. 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.] 201 a. "Or upon condition in law, &c." Quæ est juris, that is, (Plow. 23 a. 1 Rol. tacitè created by law without any words used by the party. Abr. 420. 2 Rep. 79.) Again Littleton subdivideth conditions in 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 claim. * 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 dis- Mir. cap. 2. sect. 15. junctive, as shall evidently appear in this chapter, where the examples of these divisions shall be explained in their proper place. Of conditions in law more shall be said hereafter in this chapter. & 17. Conditions in deed. UPON condition in deed is, as if a man by deed indented LITTLETON. infeoffs another in fee-simple (5), reserving to him and his [Sect.325. 201 a.] heirs yearly a certain rent payable at one feast or divers feasts per annum, on condition that if 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. 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 feoffee quite to oust thereof. And it is called an estate upon condition, be (5) simple not in L. and M. nor Roh. (6) un-demy not in L. and M. nor Rob. (7) Et added in L. and M. and Roh. 201 b. 201 b. LITTLETON. cause that the state of the fcoffee 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 aflirmative, which implieth a negative, (as behind or unpaid implieth a negative) viz. not paid. All which do appear by the express words of Littleton. IN the same manner it is if lands be given in tail, or let [Sect.326.202 b.] for term of life, or (8) of years, upon (9) condition, &c. 202 b. LITTLETON. 1. By what words created. Effect of the words, "" Sub conditione," * 203 b. This &c. implieth the several kinds of conditions in deed before specified. ALSO, divers words (amongst (10) others) there be, which [Sect.328. 203 a.] 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 puy, 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. 203 b. Vid. sect. 325. 203 a. Sub conditione. Marie, Dyer 158. 27 H. 3. 15. 13 II. 4. Entre Cong. 57. 29 Ass. 7. 33 Ass. 11. "Such a rent, &c." This (&c.) implicth 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. Here in this and the next two sections Littleton doth put four examples of words that make conditions in deed: and first, sub conditione. This is the most express and proper condition in deed, and therefore our author beginneth with it. (8) a terme added in L. and M. and Roh, (9) tiel added in L. and M. and Roh. (10) les added in L. and M. and Roh. (11) sub conditione-de condicion in L. and M. and Roh. (12) istâ added in E. and M. and Roh. Proviso, ALSO, if the (13) words were such, Provided always, that LITTLETON. the aforesaid B. do pay or cause to be paid to the afore- [Sect. 329. 203 b.] said 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, &c. Proviso. 203 b. Vid. sect. 220. Dier. 28 H. 8. 27 H. 8. fol. 14. 15. 13 H. 4. "Provided always, that B. pay, &c." Our author putteth his case where a proviso cometh alone. And so it is if a man by indenture letteth lands for years, provided always, fol. 13. and it is covenanted and agreed between the said parties, that the lessee should not alien; and it was adjudged that was a condition by force of the proviso, and a covenant by 72. at large. 35 H. 8. force of the other words (B). this 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. do appear by the authorities in the margent (*). All which Entre Cong. 57. Seignior Cromwell's case, lib. 2: fol. 71. tit. Condition. Br. lib. 8. 89. Frances' case. (2 Rep. 70 b.) (*) 27 H. 8. 15, &c. For the &c. in this section explanation is made in the sec- Britton, ubi supra. tion uext 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 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 law (13) parols-condicions in L. and M. and Roh. (14) cest parol not in L. and M. nor in Roh. (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 dependance on another clause of the deed, or be the words of the feoflee, to compel the feoffor to do something, then it is not a condition, but only a covenant. Sheph. Touch. 12. 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. 72a. As to the difference between a condition, a remainder, and a conditional limitation, see the note to fo. 214b. post. -[Ed.] (Dyer 13 b.) LITTLETON. [Sect.330. 203 b.] Quod si contingat, 203 b. (Ante, 146 b.) 6 E. 2. Entre Coug. 65. 8 E. 2. Ass. 320. ad ful for the feoffor and his heirs to enter, &c.; this is a deed upon condition. "Quod si contingat, &c." This is the fourth condition in deed set down by our author. judged. Quod si contingat. Pasch. 37 El. Rot. 254. inter Sayer et Hares in Com. Banco. BUT there is a diversity between this word si contingat, &c. and the words next aforesaid, &c. For these words, si contingat, &c. are nought worth to such a condition, unless it hath these words following, "That 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 tothe 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) letteth 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. "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 distraiu 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 incideut of common right. (16) a-en in L. and M. and Roh. (17) les tiels in L. and M. and Roh. (18) en la-de in L. and M. de la in Rol. (19) de la manner-le matiere in L. and M. and Roh. (20) come de franktenement added in L. and M. and Roh. (21) et added in L. and M. and Roh. |