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not alien that, that is good, because the rent is of his own creation; but this is against the reason and opinion of our author, and against the height and purity of a fee-simple.

A man before the statute of quia emptores terrarum might 14 H. 4. 13 H. 7. 23. have made a feoffment in fee, and added further, that if he

or his heirs did alien without licence, that he should pay a

fine; then this had been good. And so it is said, that then 21 H. 7. 8. lib. 5. 56. Knight's case. the lord might have restrained the alienation of his tenant by condition, because the lord had a possibility of reverter: and so it is in the king's case at this day, because he may reserve a tenure to himself.

thing;

If A. be seised of Black Acre in fee, and B. enfeoffeth Secus where it is annexed to a collateral him of White Acre upon condition, that A. shall not alien Black Acre, the condition is good; for the condition is annexed to other land, and ousteth not the feoffee of his power to alien the land whereof the feoffment is made, and so no repugnancy to the state passed by the feoffment: and so it is of gifts or sales of chattels, real or personal.

BUT if the condition be such, that the feoffee shall not LITTLETON. alien to such a one, naming his name, or to any of (29) his [Sect. 361. 223a.] Theirs, or of the issues of such a one, &c. or the like, which or is restrictive of conditions do not take away all power of alienation from the lar person only : feoffee, &c. then such condition is good.

alienation to a particu

*293 b.

223 a.

Pl. Com. 77 a.

*223 b.

If a feoffment in fee be made upon condition, that the feoffee shall not enfeoff I. S. or any of his heirs or issues, & H. 7. 10 b. 21 E. 4. &c. this is good; for it doth not restrain the feoffee of all his 47 a. power (R): the reason here yielded by our author is worthy of observation. And in this case if the feoffee enfeoff I. N. of intent and purpose that he shall enfeoff I. S. some hold, (Dyer 45 a. that this is a breach of the condition; for quando aliquid 74a.) prohibetur fieri ex directo, prohibetur et per obliquum.

11 Rep.

If a feoffment be made upon condition, that the feoffee Or in case of alienations shall not alien in mortmain, this is good, because such aliena- prohibited by law.

(29) ses not in L. and M.

(R) So it has been held, that a condition against alienation, except to sisters or their children, annexed to a devise in fee, was good; and that for the breach of it, the heirs of the devisor might enter. Doe, d. Gill v. Pearson, 6 East, 173.-[Ed.]

10 H. 7. 11. Doct. & Stud. 124. 13 H. 7. 23.

tion by law; and regularly whatsoever is prohibited by the Bracton, lib. 1. fol. law, may be prohibited by condition, be it malum prohibitum,

13 a.

LITTLETON.

Condition not to alien,

a discontinuance:

or malum in se. In ancient deeds of feoffment in fee there was most commonly a clause, quòd licitum sit donatori rem datam dare vel cendere cui voluerit, exceptis viris religiosis et Judais.

ALSO, if lands be given in tail upon condition, that the [Sect.362. 223 b.] tenant in tail nor his heirs (30) shall not alien in fee, (51) nor on a gift in tail, good as in tail, nor for term of another's life, but only for their own to alienations working lives, &c. such condition is good. (Note here, the double negative in legal construction shall not hinder the negative, viz. sub conditione quòd ipse nec hæredes sui non alienarent. And therefore the grammatical construction is not always in judg11. Vid. sect. 220. acc. ment of law to be followed.) And the reason is, for that (Cro. Car. 555. Hob. when he maketh such alienation and discontinuance of the

[COKE, 223 b.]

33 Ass. 11. 24. lib.

40. 41. Mildmay's

case. 21 H. 6. 33.

6.

13 H. 7. 23. 21 H.7.

191. Cro. Jac. 307.

Ante, 146 b. 10 Rep. intail, he doth contrary to the intent of the donor, for which 130. 4 Rep. 14.) the statute of W. 2. (32) cap. 1. was made (hereby it appeareth, that whatsoever is prohibited by the intent of any act of parliament, may be prohibited by condition, as hath been said), by which statute the estates in tail are ordained (s).

[COKE, 224a.] 10 H. 7, 11. Doct. & Stud. 124. 13 H. 7.

23.

(50) &c. added in L. and M.
(31) ne-ou in L. and M.

(32) cap. 1. added in L. and M.

(S) And such alienations, working a discontinuance, are deemed in law tortious acts, which may well be restrained by proviso. But it is otherwise of an alienation by suffering a common recovery, or levying a fine within the statutes 4 H. 7. c. 24. and 32 H. 8. c. 36.; for this is no discontinuance, but a bar, and a liberty inseparable from the estate, as that tenant in tail may suffer a common recovery, cannot be restricted by any condition or proviso. Hob. 170. "For a condition annexed to ap estate given, is a divided clause from the grant, and therefore cannot frus trate the grant precedent, neither in any thing expressed, nor in any thing implied, which is of his nature incident and inseparable from the thing granted." Ibid. Et vid. Sir Anthony Mildmay's case, 6 Co. 41. 1 Co. 86. 9 Co. 128 b. Moor. 601. Cro, Jac. 697. Vent. 322. Jones, 58. King v. Burchell, Ambl. 379. So if property is given to a man for his life, the donor cannot take away the incidents to a life estate. Property may be limited to a man to go over on a certain event, as bankruptcy, Dommett v. Bedford, 3 Ves. 149. 6 T. R. 684. Shee v. Hale, 13 Ves. 404; but while his property it must be subject to the incidents of property. Therefore, on a trust to pay the dividends of stock from time to time into the proper hands of a man, or on his proper order or receipt, subscribed with his own hand, that they should not be grantable, transferrable, or otherwise assignable, by way of anticipation of any unreceived payment, or any part thereof; on his decease, the principal to be paid to such persons as in a course of administration would become entitled to his personal estate, and as if it had been his personal estate, and he had died intestate;" it was held to be an interest for life in the dividends, assignable under a commission of bankruptcy; with a limitation over of the principal to those entitled under the statute of distributions. Brandon v. Robinson, 18 Ves. 429. Et vid. Foley v. Burnell, 1 Bro. C. C. 274. As to conditions restraining lessees from alienation, see n. (T) infra.-[Ed.]

FOR it is proved by the words comprised in the same sta tute, (33) that the will of the donor in such cases shall be observed, and when the tenant in tail maketh (34) such discontinuance, he doth contrary to that, &c. And also in estates in tail of any tenements, when the reversion of the fee-simple, (S5) or the remainder of the fee-simple is in other persons, when such discontinuance is made, then the fee-simple (36) in the remainder is discontinued. And because (37) tenant in tail shall do no such thing against the profit (38) of his issues, and good right, such condition is good, as is aforesaid, (39) &c.

LITTLETON. [Sect.363. 224 a.]

224b.

"Against the profit of his issues." Hereby it appeareth, that to restrain tenant in tail from alienation against the profit of his issues, is good, for that agreeth with the will of the donor, and the intent of the statute (*). But a gift in tail may (*) 46 E. S. 4. be made upon condition, that tenant in tail, &c. may alien (1 Rol. Abr. 418.) for the profit of his issues, and that hath been holden to be good, and not restrained by the said statute, and seemeth to agree with the reason of Littleton, because in that case voluntas donatoris observetur, &c. and it must be for the profit of the issues.

223 b.

"But only for their own lives, &c." And yet if a man make a gift in tail, upon condition that he shall not make a lease for his own life, albeit the state be lawful, yet the condition is good; because the reversion is in the donor. if a man make a lease for life or years upon condition, they shall not grant over their estate, or let the land to 19. 31 H. 8. Dyer 45. (3 Rep. 64.)

As (6 Rep. 43 a. contra.)

that

others, this is good (T), and yet the grant or lease should be lawful. (†) If a man make a gift in tail, upon condition

(33) que fuit al entent de le fesance de meme l'estutute added in L. and M. and Roh.

(34) tiel-un L. and M. and Roh. (55) ou remainder en fee-simple, not in L. and M. and Roh.

(36) en la reversion ou le fee-sim

ple, added in L. and M. and Roh.
(37) ceo ouster in L. and M. and

Roh.

(38) de les issues not in L. and M. nor Roh.

(39) &c. not in L. and M. nor Roh.

(T) But such conditions are construed strictly in favour of the lessee. And therefore it has been determined, that if a lessee, who is restrained from alienation by a condition of this kind, assigns over his term with the consent of the lessor, such assignee may assign to any other person without a licence. Dumper's case, 4 Co. 119. Whichcot v. Fox, Cro. Jac. 398. And it is immaterial whether the license be general, as in Dumper's

21 H. 6. 33. 13 H. 7. 23. 24. 27 H. 8. 17.

(†) Dier. 33 H. 8.
fol. 48. 49. (10 Rep.
38. 39. 1 Rol. Abr.
418.)

Pl. Com. in Nichol's case, 487.

(k) 10 E. 3. 51.

To all the other books, viz. 7 E. 3. 10 E. 3. 10 Ass. 44 E. 3. 43 Ass. and 6 R. 2. they say, that being rightly understood they are good law; for in some of these books, as namely 10 E. 3. 10 Ass. &c. it appeareth that there was a charter made in surety of the term, which, say they, must be intended thus, viz. a man maketh a lease for years, the lessee enters and the lessor makes a charter to the lessee, and thereby doth grant unto him, that if he pay unto the lessor a hundred marks during the term, that then he shall have and hold the lands to him and to his heirs.

In this case, say they, there need no livery of seisin, but doth enure as an executory grant by increasing of the estate, and in that case, without question, the fee-simple passeth not before the condition performed.

And therefore Littleton warily putteth his case of an estate made all at one time by one conveyance, and a livery made thereupon.

For Littleton himself in the section before saith, that in that case without a livery nothing passeth of the freehold and inheritance.

And this diversity (say they) is proved by books; and thereupon they cite (k) 10 E. 3. 54. In a writ of dower the tenant vouched to warranty; the vouchee as to part pleaded that the husband was never seised of any estate whereof she might be endowed; as to the residue the tenant pleaded that he leased to the husband in gage upon condition, that if the lessor paid ten marks at a certain day, that he should re-enter, and if he failed of payment, that the land should remain to the husband and his heirs, which must be intended to be done by one entire act, and pleaded that he paid the money at the day, which is allowed to be a good plea: Ergo, the fee-simple passed by the livery, otherwise the plea had amounted that the husband was never seised, &c. And say they, that it cannot be intended that the judges should be of one opinion in Trinity term, and of another opinion in Michaelmas term in the same year, and therefore (they hold)

their several opinions are in respect of the said diversity of

the cases.

30.

*218 a.

(1)32 E. S. tit. Garr. 30. A tenant by the curtesy made (1) S2 E. 3. tit. Garr. a lease for years, and in surety of the term, &c. made a charter in fee-simple, and made livery according to the charter (note a special mention made of livery in this case); and issue being taken in an assise, whether the tenant by the curtesy demised in fee, upon the special matter found, it was adjudged that a fee-simple passed, and that the heir might enter for a forfeiture, which, say they, in case of livery is an express judgment in the point agreeing with the opinion of Littleton.

(m) 43 E. S. 35. In an action of waste against one in (m) 43 E. §. 35. lands which he held for term of years, Belknap pleaded thus for the defendant: that the defendant was seised in fee, and infeoffed the plaintiff, &c. and after the plaintiff demised the land back again to the defendant for years upon condition, that if the defendant paid certain money, &c. that then the defendant might retain the land to him and to his heirs, and if not, the plaintiff might enter, &c. and pleaded that the term endured, and that the day of payment was not come, and demanded judgment, if the plaintiff may maintain an action of waste, inasmuch as the defendant had now a feesimple, and shewed forth the indenture of lease with the condition (which agreeth with Littleton's case), all being done at one time, and by one deed, and a livery intended, and with Littleton's opinion also. It is true, say they, that Cavendish, accounsel with the plaintiff, offered to demur, but never proceeded. (n) Vide 20 Ass. pl. 20.

Other authorities they cite, but these (as I take it) are the principal, and therefore for avoiding of tediousness, having I fear been too long upon this point, the others 1 omit. Only this they add, that Littleton had seen and considered of the said books, and have set down his opinion where livery of seisin is made upon a conveyance made at one time, as hath been said, that he hath fee-simple conditional.

(n) 20 Ass. pl. 20:

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