209 b. ficient performance. Condition must be per formed bona fide. fol. 98. Goodale's case. 19 H. 6. 54. 20 E. 5. Account Pl. 70. (5 Rep. 117.) it is in the election of the feoffor to pay the money to the first feoffee, or to the second feoffee; and so if the first feoffee dieth, the feoffor may either pay the money to the heir of the first feoffee, or to the second feoffee; for the law will not enforce the feoffor to take knowledge of the second feoffment, nor of the validity thereof, whether the same be effectual or not, but at his pleasure; and the first feoffee and his heirs are expressly named in the condition. "Pay such a sum at such a day, &c." Here is implied, that 5. What shall be a suf- this payment ought to be real, and not in shew or appearance. For if it be agreed between the feoffor and the ex18 E. 4. fol. 18. lib. 5. ecutors of the feoffee, that the feoffor shall pay to the executors but part of the money, and that yet in appearance the whole sum shall be paid, and that the residue shall be repaid; and accordingly at the day and place the whole sum is paid, and after the residue is repaid; this is no performance of the condition; for the state shall not be divested out of the heir, which is a third person, without a true and effectual payment, and not by a shadow or colour of payment, and the agree ment precedent doth guide the payment subsequent. (5 Rep. 96.) Note, that in a condition consisting of divers parts in the conjunctive, as in the case of Littleton, (sect. $64.), both parts must be performed according to the old rule, (c) Si plures conditiones ascriptæ fuerunt donationi conjunctim, omnibus est parendum et ad veritatem copulativè requiritur quod utraque pars sit vera (M 1.). But otherwise it is when the condition is in the disjunctive (N 1.), for the same author (M 1.) So where a settlement was made, to the intent, that, in case the Duke of Southampton should be married to the settlor's daughter, after the age of sixteen, and they should have issue male, then the trustees and their heirs should stand seised of the premises in trust for the duke during his life the marriage took place before the lady was sixteen, but she lived to that age, and then died without issue; it was adjudged, on appeal to the house of lords, that the duke was not entitied to an estate for life, under the settlement; for the words plainly required that there should not only be a marriage, but also issue mate; and where a condition copulative is made precedent to any use or trust, the entire condition must be performed, before the use or trust can arise. Wood v. Duko of Southampton, Show. P. C. 83. 2 Freem. 186. Com. Rep. 732. But if a condition be in the copulative, and it is impossible to be so performed, it shall be taken in the disjunctive: As if it be, "that A. and his heirs or executors do such a thing," Rol. Abr. 444.; or "that A. and his assigns do it." Ibid. 3 Com. Dig. 112. (K. 3.)-[ Ed.] (N 1.) And, therefore, if the condition be to re-infeoff or pay twenty pounds, and the feoffee do one of them; it is a good performance of the condition. Sheph. Touch. 139. Where the condition consists of two parts in the disjunctive, and the obligor has an election which of them in that case saith, Si divisim cuilibet, vel alteri eorum, satis Secus, if in the disjunc est obtemperare. Et in disjunctivis sufficit alteram partem esse ceram. tive. tice, to be taken wholly in the disjunctice. What then if the condition or limitation be both Condition in the conjunctive and disjuncin the conjunctive and disjunctive: as if a man make a lease to the husband and wife, for the term of one and twenty years, if the husband and wife or any child between them so long shall live, and then the wife dieth without issue; shall the lease determine, or continue during the life of the husband? And the answer is, that it shall continue, for the disjunctive referreth to the whole, and disjoineth not only the latter part, as to the child, but also to the baron and feme, so as the sense is, if the baron, feme, or any child shall so long live. (d) And so it is if an use be limited to certain persons, until A. shall come from beyond sea, and attain unto his full age, or die; if he doth come from beyond sea, or attain to his full age, the use doth cease. A diversity is to be understood between conditions that are to create an estate, and conditions that are to destroy an estate; for, by sect. 352, it appeareth, that a condition that is to create an estate, is to be performed, by construction of law, as near the condition as may be, and according to the intent and meaning of the condition, albeit the letter and words of the condition cannot be performed; but otherwise it is of a condition that destroyeth an estate, for that is to be taken strictly, unless it be in certain special cases: and of this somewhat hath been said before in this chapter. As if a man mortgage his land to W. upon condition, that if the mortgagor and J. S. pay twenty shillings at such a day to the mortgagee, that then he shall re-enter; the mortgagor dieth before the day; J. S. pays the money to the mortgagee; this is a good performance of the condition, and to perform, if one become impossible by default of the party (1 Rol. Abr. 446. 2 Mod. 202, 203.), or by the act of God, Le shall not be bound to perform the other part. Laughter's case, ɔ Co. 22. Poph. 98. Moor, 357. Cro. Eliz. 598. But, in a subsequent case, where the condition was to make the obligee a lease for life by such a day, or pay him 1001., it was adjudged, that, though the obligee died before the day, yet his executor should have the 1007.; and the ground of Laughter's case was denied to be universal. Anon. Saik. 170. PeTreby, C. J. Et vid. Dacosta v. Daris, 1 Bos. & P. 242. So, if one part was impossible at the time of making, he ought to do the other. 5 Co. 2. Cro. Eliz. 786. 3 Com. Dig. 112. (K. 2.) Ant. 145 a. vol. 1. p. 452.-[Ed.] (d) Hil. 35 Eliz. en trespasse perie SeigGeorge Vaux, so adjudged in the King's Beuch, nior Mordant vers. 219 b. Condition to create an estate, if performed as near to the intent as possible, sufficient. (1 Rol. Abr. 426. Plow, 7 a. Dyer 45a.) Secus as to a condition to defeat an estate. so H. 8. tit. Condit. Br. 190. Vid. 33 H. 8. tit. Joint Br. 62. LITTLETON. *219 a. yet the letter of the condition is not performed (o 1.). But if the mortgagor had been alive at the day, and he would not pay the money, but refused to pay the same, and J. S. alone had tendered the money, the mortgagee might have refused it. But if a man make a lease to two for years, with a proviso, if the lessees die during the term, the lessor shall reenter, one lessee alien his part and die, the other lessee cannot re-enter, but the assignee shall enjoy the term so long as the survivor liveth, and the reason is, because the lease by the proviso is not to cease till both be dead. But in the former case, albeit the mortgagor be dead, yet the act of God shall not disable J. S. to pay the money, for thereby the mortgagee receives no prejudice. And so it is in that case, if J. S. had died before the day, the mortgagor might have paid it. ALSO, if a feoffment be made upon such condition, that [Sect.352. 218 b.] the feoffee shall give the land to *the feoffor, and to the wife of the feoffor, to have and to hold to them and to the heirs of their two bodies engendered, and for default of such issue, the remainder to the right heirs of the feoffor. In this case if the husband dieth, living the wife, before any estate in [COKE, 219 a.] tail made unto them, (85) &c. (here the &c. implieth, according to the condition with the remainder over), then ought the feoffee by the law to make an estate to the wife as near the condition, and also as near to the intent of the condition as may make it (P 1.), that is to say, to let the land to the wife for term of life, without impeachment of waste (86), the re he (85) &c. not in L. and M. nor Roh. (86) "Note, if land be given to the wife, and the heirs of the husband of his body begotten, the wife shall have the estate for life, subject to waste.-Sup. 26 b.; therefore such conveyance is not by force."Lord Nott. MSS. (01.) With respect to the effect of the performance of a condition, it may be observed, that it is a rule, that, when a condition is performed, it is thenceforth entirely gone; and the thing to which it was before annexed becomes absolute and wholly unconditional. And this, as we have before mentioned, was the principle adopted by the judges in the construction of gifts to a man and the heirs of his body, before the statute De donis. Aut. vol. 1. p. 508. n. (A 1.) 2 Cru. Dig. 41.-[Ed.] (P 1.) Acc. Br. Conditions, pl. 70. Plowd. 291 a. So, where the condition was that the feoffees should re-infeoff the feoffor and his wife in tail, the remainder to the right heirs of the husband; the wife married a second husband, and the feoffees infeoffed the second husband and the wife for her life, remainder to the right heirs of the first husband; it was adjudged, that the condition was well performed. 5 Vin. Abr. 122. (L. a. 2.)-[Ed.] mainder after his decease to the heirs (87) of the body of her husband on her begotten (o 1.), and for default of such issue, the remainder to the right heirs of the husband. And the cause why the lease shall be in this case to the wife alone without impeachment of waste, is, for that the condition is, that the estate shall be made to the husband and to his wife in (88) tail. And if such estate had been made in the life of the husband, then, after the death of the husband, she (89) should have had an estate in tail, which estate is without impeachment of waste. And so it is reason, that as near as a man can make the estate to the intent of the condition, &c. that it should be (90) made, &c. albeit she (91) cannot have an estate in (92) tail, as she (93) might have had if the gift in tail had been made to (94) her husband and (95) to her, in the life (96) of her husband, &c. Here is no time limited, therefore the feoffee by the law hath time during *his life, unless he be hastened by the request (87) les corps de son baron et de buy engendres, in L. and M. and Roh (88) le added in L. and M. and Roh. (89) ust ewe-ad ewe, in L. and M. and Roh. (90) fait not in L. and M. nor Rob. (91) el-il in L. and M. and Roh. (92) le added in L. and M. and Roh. (93) el-il in L. and M. and Roh. (94) sa-son in L. and M. and Roh. (95) a not in L. and M. and Roh. (96) su son in L. and M. and Roh. (Q1.) According to the original edition by Lettou and Machlinia, and the Rohan edition, as above-mentioned, this passage should be read thus: the remainder after his decease to the heirs of the body of her husband and herself begotten. And this reading has been sanctioned by what fell from Lord C. J. Wilmot, in delivering judgment in the case of Frogmorton, d. Robinson v. Wharrey, who observed, "when an estate is limited to a husband and wife, and the heirs of their two bodies, the word 'heirs' is a word of limitation, because an estate is given to both the persons, from whose bodies the heirs are to issue. But when it is given to one only, and the heirs of two (as to the wife and the heirs of her and A. B.), there the word heirs' is a word of purchase; for no estate tail can be made to one only, and the heirs of the body of that person and another. This appears from Littleton, sect. 352. according to the true reading collected from the original editions. The common editions make the estate cy pres, therein mentioned, to be, to the widow and les heirs de corps sa buron de luy engendres; which is not as near as might be to the original estate intended, if the husband had lived; viz. to the husband and wife, and the heirs of their two bodies. But the original edition by Lettou and Machlinia, in Littleton's life-time, and the Rohan edition, which is the next (both which my brother Blackstone bas), read it thus:-les heirs de les corps de son baron et luy engendres: which is quite consonant to the original estate; and this estate, to the widow for life, and the heirs of the body of her husband and herself begotten, Littleton, in the same section, declares not to be an estate-tail. The same is held in Dyer, 99.; in Lane and Pannel, 1 Rol. Rep. 438., and in Gossage and Taylor, Style, 325, which, from a manuscript of Lord Hale, in possession of my brother Bathurst, appears to have been first determined in Hil. 1651 ; which accounts for some expressions of Lord C. J. Rolle, in Style's case, which was in T. Pasch, 1652," 2 Bl. Rep. 728.-[Ed.] 27 E. 3. Dower 185. *219 b. (1 Rol. Abr. 452.) (1 Rol. Abr. 428.) Seignior Cromwell's 219 a. (Sect. 337.) 26. 27. 9 Eliz. Dier 262. Pl. Com. 456. Lib. 2. fol. 79. of the fcoffor or the heirs of his body, as Littleton saith in the next section. And here it appeareth, that, albeit the feme be a stranger, yet the feoffee is not bound to make it within convenient time, because the feoffor, who is privy to the condition, is to take jointly with her. And so it is if the condition be to infeoff the feoffor and a stranger, the feoffee hath time during his life, unless he be hastened by request. Otherwise it is (as hath been said) where the condition is to infeoff a stranger or strangers only. If a man make a feoffment in fee, upon condition, that the feoffee shall make a gift in tail to the feoffor, the remainder to a stranger in fee, there the feoffee hath time during his life, as is aforesaid, because the feoffor, who is party and privy to the condition, is to take the first estate. But if the condition were to make a gift in tail to a stranger, the remainder to the feoffor in fee, there the feoffee ought to do it in convenient time, for that the stranger is not privy to the condition, and he ought to have the profits presently, as be fore hath been said. But in this case, if the feoffee dieth before any feoffment made, then is the condition broken, because he made not the estates, &c. within the time prescribed by the law. But if the feoffment be made upon condition, that the feoffee before the feast of St. Michael the Archangel next following give the 15 H. 7. 13. 33 H. 6. land to the feoffor and to his wife in tail, ut supra, and before the day the feoffee dieth, the state of the heir of the feoffee Seig- shall be absolute, because a certain time is limited by the mutual agreement of the parties, within which time the condition becometh impossible by the act of God, as hath been said before (R 1.); and therefore it is necessary, when a day is limited, to add to the condition, that the feoffee or his heirs do perform (2 Rep. 79 a. 6 Rep. the condition; but when no time is limited, then the feoffee 30 b.) at his per must perform the condition during his life (although there be no request made), or else the feoffor or his heirs may re-enter. nior Cromwell's case. (Sect. 334.) (1 Rol. Abr. 449. Ante, 206 a.) (R 1.) See 206 a. ante, p. 22. n. (M).—[Ed.] |