The other &c. in this section upon that which hath been said are evident. By section 330, it is evident that some words of themselves do make a condition, and some other (whereof our author in section 331 putteth an example) do not of themselves make a condition without a conclusion and clause of re-entry: and many times (si) makes a condition (c), and sometimes a limitation, as hereafter shall be said in this chapter. 138 b. Si, Inesse potest donationi modus, conditio, sive causa. (*) Sci- (*) 4 Mar. Dyer to quòd (ut) modus est (si) conditio (quia) causa. Conditio is explained before. Modus is at this day properly Bracton, ubi supra. taken for a modification, limitation, or qualification, for the which also the law hath appointed apt words; and because Littleton speaketh of this also in the end of this chapter, I will reserve this matter to his proper place, where the reader shall perceive excellent matter of learning touching this point. Causa, the cause or consideration of the grant. And herein there is a diversity between a gift of lands, and a gift of an annuity, or such like. For example, if a man grant an annuity pro unú acrâ terra, in this case this word pro sheweth the cause of the grant, and therefore amounteth to a condition; for, if the acre of land be evicted by an elder title, the annuity shall cease, for cessante causá cessat effectus. And so if an annuity be granted pro decimis, &c. if the grantee be unjustly disturbed of the tithes, the annuity ceaseth. And so it is if an annuity be granted pro consilio, and the grantee refuse to give counsel, the annuity ceaseth. So if an annuity be granted quòd præstaret consilium, this makes the grant conditional. But if A. pro consilio impenso, &c. make a feoffineut, or a lease for life, of an acre, or pro unâ acrâ terræ, &c. albeit he denieth counsel, or that the acre be evicted, yet A. shall not re-enter; for in this case there ought to be legal words of condition or qualification; for the cause or consideration shall and Pro. Pro. 24 E. 3. 34. (Hob. 41. 42. 10 Rep. 42, Plo. 141 a. 7 Rep. 9 b. 10. 28 b.. Ante, 144 a. 9 Rep. 50 a. Post, 237 a.) 9 (C) That the general meaning of the word "if" implies a condition 9 precedent, unless it be controlled by other words, see Bromfield v. Crowder, 1 N. R. 325.-[Ed.] E. 4. 20. 32 E. 3. Annu. 30. 14 E. 4. 4. 15 E. 4. 2 b. 8 H. 6. 23. 28. 35 H. 6. 2. E. 4. 20. 15 E. 4. 3. Fleta, lib. 5. cap. 34. 34 Ass. 1. 40 Ass. 13. 34. tit. Condition Br. 5 H. 4. 1. not avoid the state of the feoffee. And the reason of this diversity is, for that the state of the land is executed, and the annuity executory. And yet sometime in case of lands or tenements (causa) shall make a condition. As if a woman give lands to a man and his heirs, causâ matrimonii prælocut, in this case if she either marry the man, or the man refuse to marry her, she (a) 5 E. 2. Cui in vita shall have the land again to her and to her heirs. (a) But of the other side, if a man give land to a woman and to her heirs, causâ matrimonii prælocuti, though he marry her, or the womau refuse, he shall not have the land again, for it stands not with the modesty of women in this kind, to ask advice of learned counsel, as the man may and ought: (*) and the rather, for that in the case of the woman she may aver the cause, (for the reason aforesaid) although it be not contained in the deed, yea though the feoffment be made without deed. (*) 12 E. 1. 1. Feoffment & Faits 114. F. N. B. 205 L. Vid. sect. 365. Less precise words of 7 H. 4. 22. 31 H. 8. tit. Condition 19. Br. Pl. Com. 142. 38 H. 6. 33. 36. 37. Doct. & Stud. lib. 2. cap. 34. 27 H. 8. 18a. 32 E. 3. Brove 291. 409. 410. Moore 57. and leases for years. (b) 7 E. 6. Dyer 79. 28 H. 8. Dyer 27 a. subpoena forisfacturæ, Quod non Heebit. 3 E. 6. Dy. 65. 66. 4 Mar. 138. (c) Hill. 40 Eliz. Rot. 1610. inter Browne and Ayer. Vid. Pl. Com. 142. Br. and Bestone's case. If a man maketh a feoffment in fee, ad faciendum, or faciendo, or câ intentione, or ad effectum, or ad propositum, that the feoffee shall do or not do such an act, none of these words make the state in the land conditional, for in judgment of law they are no words of condition; and so was it resolv ed, Hil. 18 Eliz. in Com. Banco, in the case of a common person; but, in the case of the king, the said or the like words do create a condition, and so it is in the case of a will of a common person, which case I myself heard and observed. But, for the avoiding of a lease for years, such precise words of condition are not so strictly required, as in case of freehold and inheritance. (b) For if a man by deed make a lease of a manor for years, in which there is a clause (and the said lessee shall continually dwell upon the capital messungs of the said manor, upon pain of forfeiture of the said term) these words amount to a condition. And so it is if such a clause be in such a lease, Quòd non licebit, to the lessee, dare, vendere, vel concedere statum, et sub pana forisfacture, this amounts to make the lease for years defeasible; and so it was adjudged in the court of common pleas (c) in queen Elizabeth's time; and the reason of the court was, that a lease for years was but a contract, which may begin by word, and by word may be dissolved. 225 b. condition, or not. There is a difference between a rent and a re-entry; for, upon a gift in tail, or a lease for life, a rent may be reserved 2. What shall be a good without deed (D); but a condition, with a re-entry, cannot be (45 E. 3. 21 a. Post reserved in those cases, without deed. ALSO, if a man make a deed of feoffment to another, and in the deed there is no condition, &c. (either in deed or in law) and when the feoffor will make livery of seisin unto him by force of the same deed, he makes livery of seisin unto him upon certain condition (22); in this case, nothing of the tenements passeth by the deed, for that the condition is not conprised within the deed, and the feoffment is in like force as if no such deed had been made. And the reason hereof is, for that the estate passeth by the livery of seisin (25). And in this case the feoffor, upon the delivery of seisin, must express the state to him and his heirs, or to the heirs of his body, &c. If an agreement be made between two, that the one shall infeoff the other upon condition, in surety of the payment of certain money, and after the livery is made to him and his heirs generally, the state is holden by some to be upon condition; inasmuch as the intent of the parties was not changed at any time, but continued at the time of the livery (E). (D) This is to be understood, at common law, before the 29 Cha. 2. c. 3.-[Ed.] (E) A mortgage will not be easily presumed against an absolute conveyance, especially if the possession has gone along with the conveyance, Cottrel v. Purchase, Forrest. 61.; but parol evidence is admissible to shew or explain the real intention and purpose of the parties, though the conveyance be absolute. Maxwell v. Montacute, Pre. Ch. 526. Walker v. Walker, 2 Atk. 98. Joynes v. Stathum, 3 Atk. 588. So if a man for money mortgage land to B. by deed, being of greater yearly value than the interest money, and before the sealing of the deed it was agreed by word, that the mortgagor should rave and receive the profits, not the mortgagee, this is good and usual in such cases, and B. may plead the verbal agreement to avoid the danger of usury. Burglary v. Ellington, Brownl. Rep. 191. For, in such cases, the proof offered is not considered as a variation of the agreement, but only explanatory of what it was meant to have been. 303 b. 338 a. Sect. 21.1.) LITTLETON. [Sect. 359. 222 b.] [Coxe, 222 b.] Rep. 222 b. 25a.) 18 E. 3. 19. 36. 17 Ass. p. 20. H. 5. 8. 27 É. 6. 8 But it is a general rule, that parol evidence is not admissible to contradict, or vary, or add to the terms of a deed, Countess of Rutland's case, 5 Co. 26. Buckler v. Millerd, 2 Ventr. 107. Tinney v. Tinney, 3 Atk. 8. Haynes v. Hare, 1 H. Bl. 659. Mease v. Mease, Cowp. 47.: and where the deed is not impeached for fraud, or other illegal matter (Collins v. Blantern, 2 Wils. 347. Pole v. Harobin, 9 East, 416. n. Paxton v. Popham, 9 East, 406.), no consideration can be averred or proved contrary o that expressed in the deed; though it is not considered to be contrary 31 Ass. pl. 6. If a man make a charter of feoffment in fee, and the feoffor deliver seisin for life, the feoffee shall hold it but for life; but if the livery be expressly for life, and also according to the deed, the whole fee-simple shall pass; because it hath reference to the deed. ALSO, if land be granted to a (24) man for term of two years upon such condition, that if he shall pay to the grantor within the said two years 40 marks, (25) then he shall have the land to him and to his heirs, &c. (here &c. implieth an estate in tail, or a lease for life); in this case, if the grantee enter by force of the grant, without any livery of seisin made unto him by the grantor, and after he payeth the grantor the 40 marks within the two years; yet he hath nothing in the land but for term of two years, because no livery of seisin was made unto him at the beginning. For if he should have a freehold and fee in this case, because he hath performed the condition, then he should have a freehold by force of the first grant, where no livery of seisin was made of this, which would be (26) inconvenient, &c. But if the grantor had made livery of seisin to the grantee by force of the grant, then should the grantee have the freehold and the fee upon the same condition, Here six things are to be observed. First, Littleton here putteth an example of a condition precedent (F). Secondly, that such a condition which createth an estate may be made (24) home not in L. and M. nor Roh. (25) que added in L. and M. and Roh. (26) inconvenient, &c.-encontre reason in L. and M. and Roh. to, or inconsistent with a deed, to prove another consideration in addition to the consideration expressed. 2 Rol. Abr. 786. 1 Co. 176. Dyer, 146 a. Vernon's case, 4 Co. 3. Craythorne v. Swinburne, 14 Ves. 170. Phil. Law, Evid. 425. So it is an established principle in courts of equity as well as in the common law courts, that parol evidence of the intention of the parties is not admissible to vary, or add to the terms of a written agreement. Fell v. Chamberlaine, 2 Dick. 424. Hare v. Shearwood, 1 Ves. 241. Jordin v. Sawkins, 3 Br. C. C. 388. Jackson v. Cater, 5 Ves. 688. Wollam v. Hearn, 7 Ves. 211. But when a court of equity is called upon to exercise its peculiar jurisdiction, by decreeing a specific performance, the party to be charged is admitted to shew, that, under the circumstances, the plaintiff is not entitled to have the agreement specifically performed. S. C. 7 Ves. 219. Clarke v. Grant, 14 Ves. 524. Ramsbottom v. Gosden, 1 Ves, & B. 165. Winch v. Winchester, 1 Ves. & B. 375.-[Ed.] (F) As to conditions precedent and subsequent, see antę, n. (A.) p. 1. and infra, n. (K) p. 19.—[Ed.] by parol without deed (G). Thirdly, that livery of seisin in this case must be made before the lessee enter, (as Littleton here saith at the beginning), for, after his entry, livery made to him that is in possession is void (H). Fourthly, that if no livery of seisin be made, that no fee-simple doth pass, although the money be paid. Fifthly, that it is inconvenient that the fee-simple should pass in this case without livery of seisin. Sixthly, that argumentum ab inconvenienti is forcible in law, as often hath been and shall be observed. See more of this kind of condition in the section next following (*). Vid. sect. 60. (Post, 48 a.) ALSO, if land be granted to a man for term of five LITTLETON. years, upon condition, that if he pay to the grantor within [Sect. 350. 216 b.] the two first years forty marks, that then he shall have fee, or otherwise but for term of the five years, and livery of seisin is made to him by force of the grant, now he hath a fee-simple conditional, &c. And if in this case the grantee do not pay to the grantor the forty marks within the first two years, then, immediately after the said two years past, the fee and the freehold is and shall be adjudged in the grantor, because that the grantor cannot after the said two years presently enter upon the grantee, for that the grantee hath yet title by three years, to have and occupy the land by force of the same grant. (By this it appeareth, that albeit the lessee had [COKE, 218b.] pro tempore a fee-simple, yet after that fee-simple is divested out of him, and vested in the lessor, he shall hold the land for three years by the express limitation of the parties). And so, because that the condition of the part of the grantee is broken, and the grantor cannot enter, the law will put the fee and the freehold in the grantor. For if the grantee in this case makes waste, then after the breach of the condition, &c. and after the two years, the grantor shall have his writ of waste. And this is a good proof then, that the reversion is in him, &c. "Then he hath a fee-simple conditional, &c." The like is of an estate in tail, or for life. Many are of opinion against Littleton in this case, and their reason is, because the fee-simple is to commence upon (*) See the next note. (G) That is, at common law, before the statute of Cha. 2. c. 3,-[Ed.] (H) Vide 48 a. post, Chap. 36. Of Feoffients.-[Ed.} *217 a. 261 b. (5 Rep. 98.) On lease for years, conditioned to have fee, and livery thereupon, whether a fee conditional passes? |