Estates, then, upon condition thus understood, are of two sorts: 1. Estates upon condition implied: 2. Estates upon condition expressed: under which last may be included, 3. Estates held in vadio, gage, or pledge: 4. Estates by statute merchant, or statute staple: 5. Estates held by elegit. I. 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,(b) on breach of which condition *it is lawful for the grantor, or his heirs, to oust him and grant it to [*153 ] another person.(c) For an office, either public or private, may be forfeited by mis-user or non-user, both of which are breaches of this implied condition. 1. By mis-user, or abuse; as if a judge takes a bribe, or a park-keeper kills deer without authority. 2. By non-user, or neglect; which in public offices, that concern the administration of justice, or the commonwealth, is of itself a direct and immediate cause of forfeiture; but non-user of a private office is no cause of forfeiture, unless some special damage is proved to be occasioned thereby. (d) For in the one case delay must necessarily be occasioned in the affairs of the public, which require a constant attention: but, private offices not requiring so regular and unremitted a service, the temporary neglect of them is not necessarily productive of mischief: upon which account some special loss must be proved, in order to vacate these. Franchises also, being regal privileges in the hands of a subject, are held to be granted on the same condition of making a proper use of them; and therefore they may be lost and forfeited, like offices, either by abuse or by neglect. (e) (4) 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 tenants for life or years enfeoff a stranger in fee-simple: this is, by the common law, 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. (f) So if any tenants 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. *II. An estate on condition expressed in the grant itself is where an estate [ *154 ] is granted, either in fee-simple or otherwise, with an express qualification (b) Litt. § 378. (c) Ibid. § 379. (d) Co. Litt. 233. (e) 9 Rep. 50. (f) Co. Litt. 215. (4) The grant of a franchise to be a corporation is always upon the implied condition that the grantees shall act up to the end or design for which they are incorporated, and any misuser of the corporate privileges will render them liable to forfeiture as for condition broken. Ang. and A. on Corp. 774-776; People v. Bank of Niagara, 6 Cow. 196; Lehigh Bridge Co. v. Lehigh Coal Co., 4 Rawle, 9; McIntyre School v. Zanesville Canal Co., 9 Ohio, 203; People v. River Raisin and Lake Erie R. R. Co., 12 Mich. 389. So corporate franchises may be lost by non-user; but what length of non-user shall be requisite for that purpose must depend very much upon the circumstances and the character of the franchise and consequent interest the public may have in its exercise. See State v. Commercial Bank, 10 Ohio, 535; People v. Bank of Pontiac, 12 Mich. 537; Matter of Jackson Marine Ins. Co., 4 Sandf. Ch. 559; Ward v. Sea Ins. Co., 7 Paige, 294. The state alone can take advantage of a breach of the condition, and it must be done by a proceeding instituted directly for that purpose, and not in any collateral or incidental proceeding. Commonwealth v. Union Ins. Co., 5 Mass. 230; Enfield Toll Bridge Co. v. Connecticut R. R. Co., 7 Conn. 46; Crump v. U. S. Mining Co., 7 Gratt. 352; Planter's Bank v. Bank of Alexandria, 10 Gill and J. 346; Myers v. Manhattan Bank, 20 Ohio, 283; Bank of Gallipolis v. Trimble, 6 B. Monr. 599; Smith v. Mississippi R. R. Co., 6 S. and M. 179; Cahill v. Kalamazoo M. Ins. Co., 2 Doug. Mich. 141; Vermont and Canada R. R. Co. v. Vermont Central R. R. Co., 34 Vt. 57; State v. Mississippi R. R. Co., 20 Ark. 495; Brookville T. Co. v. McCarty, 8 Ind. 392; Wood v. Coosa, &c., R. R. Co., 32 Ga. 273. And the state may waive the broken condition as an individual might. Ang. and A. on Corp. 777. As to what shall be deemed a waiver, see Commercial Bank v. State, 6 S. and M. 622; State v. Bank of Charleston, 2 McMullan, 439; People v. Kingston T. Co., 23 Wend. 193; People v. Phoenix Bank, 24 id. 431; People v. Bank of Pontiac, 12 Mich. 527. annexed, whereby the estate granted shall either commence, be enlarged or be defeated, upon performance or breach of such qualification or condition.(g) (5) These conditions are therefore either precedent or subsequent. (6) Precedent are such as must happen or be performed before the estate can vest or be enlarged: subsequent are such, by the failure or non-performance of which an estate already vested may be defeated. (7) Thus, if an estate for life be limited to A upon his marriage with B, the marriage is a precedent condition, and till that happens no estate (h) is vested in A. Or, if a man grant to his lessee for years, that upon payment of a hundred marks within the term he shall have the fee, this also is a condition precedent, and the fee-simple passeth not till the hundred marks be paid. (i) But if a man grants an estate in fee-simple, reserving to hmself and his heirs a certain rent; and that if such rent be not paid at the times limited, it thall be lawful for him and his heirs to re-enter, and avoid the estate: in this case the grantee and his heirs have an estate upon condition subsequent, which is defeasible if the condition be not strictly performed. (k) (8) To this class may also be referred all base fees, and fee-simples conditional at the common law. (1) Thus an estate to a man and his heirs, tenants of the manor of Dale, is an estate on condition that he and his heirs continue tenants of that manor. And so, if a personal annuity be granted at this day to a man and the heirs of his body, as (g) Ibid. 201. Litt. § 325. (h) Show. Parl. Cas. 83, &c. (i) Co. Litt. 217. (5) The instances of conditions which now most frequently arise in practice are those contained in leases or agreements between lessor and lessee, and are principally conditions subsequent, provided for in the usual clauses of re-entry in case of a breach of a particular, or any covenant in the lease, as non-payment of rent, not repairing, not insuring, not residing on the premises, or in case of an assignment, or parting with the possession, or of bankruptcy, or insolvency, &c. See the cases upon this subject, 2 Cruise Dig. 10, 11, 13; 4 Cruise, 506; Adams, Ejectm. index, Covenant; 2 Saunders, by Patteson and Williams, index, Forfeiture.] (6) [Equity will not allow any one to take advantage of a bequest over, who has himself been instrumental in causing the breach of a condition. Garrett v. Pretty, stated from Reg. Lib. in 3 Meriv. 120; Clark v. Parker, 19 Ves. 12; D'Aguilar v. Drinkwater, 2 Ves. and Bea. 225. But, it is a general rule, that where a condition is annexed by will to a devise or bequest, and no one is bound to give notice of such condition, the parties must themselves take notice and perform the condition in order to avoid a forfeiture. Chauncy v. Graydon, 2 Atk. 619; Fry v. Porter, 1 Mod. 314; Burgess v. Robinson, 3 Meriv. 9; Phillips v. Bury, Show. P. C. 50. Infancy will be no excuse, in such case, for non-performance of the condition. Bertie v. Lord Falkland, 2 Freem. 221; Lady Ann Fry's Case, 1 Ventr. 200. The application of this general rule, however, is subject to one restriction: where a condition is annexed to a devisc of real estate to the testator's heir at law, there notice of the condition is necessary before he can incur a forfeiture; for, an heir at law, will be supposed to have entered and made claim by descent, not under the will. Burleton v Homfray, Ambl. 250.] (7) There are no technical words to distinguish conditions precedent and subsequent, but whether they be the one or the other is matter of construction, and depends upon the intention of the party creating the estate. 4 Kent, 125; Rogan v. Walker, 1 Wis. 555; Burnett v. Strong, 26 Miss. 116; Finlay v. King's Lessee, 3 Pet. 346; Hotham v. East India Co., 1 T. R. 645. (8) Van Rensselaer v. Ball, 19 N. Y. 100. So a condition that a conveyance shall be void unless within a specified time a certain sum of money is paid. Brannan v. Mesick, 10 Cal. 108. So a condition in a conveyance of land to a child that the grantee shall support the grantor in a particular manner. Willard v. Henry, 2 N. H. 120. But the condition must be something substantial; if it be merely nominal, as to pay an ear of Indian corn for a grant of land, for the first ten years if lawfully demanded, a failure to perform will be no ground of forfeiture, People v. Society, &c., 1 Paine, C. C. 652; King's Chapel v. Pelham, 9 Mass. 501. And in any case a mere stipulation in a deed that the grantee shall do or abstain from doing a particular act is not to be regarded as a condition; the law presuming that the grantor relied upon the personal responsibility of the grantee instead of any security which a condition would afford. The construction is therefore always against conditions where the language will admit of it, and the grantee will have the benefit of all doubts. Merrifield v. Cobleigh, 4 Cush. 178. And if held to be conditions, they will be strictly construed. grant, upon condition that the land shall be used for a raceway, is not forfeited, if it is used for that purpose, because of being used for other purposes also. McKelway v. Seymour, 5 Dutch. 322. And a condition that a grantee shall maintain a fence, not naming his heirs or assigns, will not be broken by the neglect of his heirs after his death to maintain it. Emerson v. Simpson, 43 N. H. 475; see Gadberry v. Sheppard, 27 Miss. 202; Bradstreet v. Clark, 21 Pick. 389; Mead v. Ballard, 7 Wal. 290. VOL. I.-55 433 A this is no tenement within the statute of Westminister the second, it remains as at common law, a fee-simple on condition that the grantee has heirs of his body. Upon the same principle depend all the determinable estates of freehold, which we mentioned in the eighth chapter: as durante viduitate, &c.; these are estates upon condition that the grantees do not marry, and the like. And, on the breach of any of these *subsequent conditions, by the failure of these contin[*155] gencies; by the grantee's not continuing tenant of the manor of Dale, by not having heirs of his body, or by not continuing sole; the estates which were respectively vested in each grantee are wholly determined and void. (9) A distinction is however, made between a condition in deed and a limitation, which Littleton (m) denominates also a condition in law. For when an estate is so expressly confined and limited by the words of its creation, that it cannot endure for any longer time than till the contingency happens upon which the estate is to fail, this is denominated a limitation: as when land is granted to a man so long as he is parson of Dale, or while he continues unmarried, or until out of the rents and profits he shall have made 500l., and the like. (n) In such case the estate determines as soon as the contingency happens (when he ceases to be parson, marries a wife, or has received the 5001.) and the next subsequent estate, which depends upon such determination, becomes immediately vested, without any act to be done by him who is next in expectancy. But when an estate is, strictly speaking, upon condition in deed (as if granted expressly upon condition to be void upon the payment of 401. by the grantor, or so that the grantee continues unmarried, or provided he goes to York, &c.), (0) the law permits it to endure beyond the time when such contingency happens, unless the grantor or his heirs or assigns take advantage of the breach of the condition, and make either an entry or a claim in order to avoid the estate. (p) (10) Yet, though strict words of condition be used in the creation of the estate, if on breach of the condition the estate be limited over to a third person, and does not immediately revert to the grantor or his representatives (as if an estate be granted by A to B, on condition that within two years B intermarry with C, and on failure thereof then to D and his heirs), this the law construes to be a [*156] limitation and not a *condition: (q) because if it were a condition, then, upon the breach thereof, only A or his representatives could avoid the estate by entry, and so D's remainder might be defeated by their neglecting to enter; but, when it is a limitation, the estate of B determines, and that of D commences, and he may enter on the lands the instant that the failure happens. So also, if a man by his will devises land to his heir at law, on condition that he (9) But a condition subsequent in general restraint of marriage is void: Morley v. Rennoldson, 2 Hare, 570; Williams v. Cowden, 13 Mo. 211; though one imposing reasonable restraints, as that the grantee shall not marry without consent of parent, guardian or trustee, or not to a person or persons named, or not to a native of a particular country, and the like will be sustained. See Perrin v. Lyon, 9 East, 170; Daley v. Desbouverie, 2 Atk. 261. And a husband has such an interest in his wife remaining single after his death that he may make that a valid condition of a grant or devise. Lloyd v. Lloyd, 16 Jurist, 306; Dumey v. Schoffler, 24 Mo. 170; Vaughn v. Lovejoy, 34 Ala. 437; Pringle v. Dunkley, 14 Sm. and M. 16; Commonwealth v. Stauffer, 10 Penn. St. 385. (10) The material distinction between a condition and a limitation is, that a condition does not defeat the estate, though it be broken, until entry by the grantor or his heirs, while a limitation actually determines the estate without any act or ceremony whatsoever. 4 Kent, 426, 427: Proprietors, &c., v. Grant, 3 Gray, 147; Tallman v. Snow, 35 Me. 342; Lockyer v. Savage, 2 Strange, 947; 1 Washb. Real Prop. 457, 458. The right to make entry for breach of condition is not assignable separate from any reversion in the land to which the condition relates. Nicoll v. N. Y. and E. R. R. Co., 12 N. Y. 121. The person entitled to make entry for breach of condition may waive the right to do so, and will be regarded as having done so by any act inconsistent with an intent to rely upon the forfeiture. As where a leasehold estate has become forfeited for non-payment of rent, and the lessor accepts from the tenant rent which has accrued subsequent to the breach. See Chalker v. Chalker, 1 Conn. 79; Coon v. Brickett, 2 N. H. 163; Jackson v. Allen, 3 Cow. 220; Gray v. Blanchard, 8 Pick. 284; Sharon Iron Co. v. Erie, 41 Penn. St. 349. Chap. 10.] ESTATES IN MORTGAGE. pays a sum of money, and for non-payment devises it over, this shall be considered as a limitation; otherwise no advantage could be taken of the non-payment, for none but the heir himself could have entered for a breach of condition. (r) In all these instances, of limitations or conditions subsequent, it is to be observed, that so long as the condition, either express or implied, either in deed or in law, remains unbroken, the grantee may have an estate of freehold, provided the estate upon which such condition is annexed be in itself of a freehold nature; as if the original grant express either an estate of inheritance, or for life; or no estate at all, which is constructively an estate for life. For, the breach of these conditions being contingent and uncertain, this uncertainty preserves the freehold; (s) because the estate is capable to last forever, or at least for the life of the tenant, supposing the condition to remain unbroken. But where the estate is at the utmost a chattel interest, which must determine at a time certain, and may determine sooner (as a grant for ninety-nine years, provided A, B and C, or the survivor of them, shall so long live), this still continues a mere chattel, and is not, by such its uncertainty, ranked among estates of freehold. These express conditions, if they be impossible at the time of their creation, or afterwards become impossible by the act of God or the act of the feoffor himself, (11) or if they be contrary to law or repugnant to the nature of the estate, are void. In any of which cases, if they be conditions subsequent, that [ *157 ] *is, to be performed after the estate is vested, the estate shall become absolute in the tenant. As, if a feoffment be made to a man in feesimple, on condition that unless he goes to Rome in twenty-four hours; or unless he marries with Jane S. by such a day (within which time the woman dies, or the feoffor marries her himself); or unless he kills another; or in case he alienes in fee; that then and in any of such cases the estate shall be vacated and determine: here the condition is void, and the estate made absolute in the feoffee. For he hath by the grant the estate vested in him, which shall not be defeated afterwards by a condition either impossible, illegal, or repugnant.(t) (12) But if the condition be precedent, or to be performed before the estate vests, as a grant to a man that, if he kills another or goes to Rome in a day, he shall have an estate in fee; here, the void condition being precedent, the estate which depends thereon is also void, and the grantee shall take nothing by the grant: for he hath no estate until the condition be performed. (u) There are some estates defeasible upon condition subsequent, that require a more peculiar notice. Such are, III. Estates held in vadio, in gage, or pledge; which are of two kinds, vivum vadium, or living pledge; and mortuum vadium, dead pledge, or mortgage. (r) Cro. Eliz, 205. 1 Roll. Abr. 411. 1 (8) Co. Litt. 42. (t) Co. Litt. 206. (u) Ibid. (11) See Merrill v. Emery, 10 Pick. 507. Or by the course of public events, as where a grant is made on condition that certain settlements be made upon it, and a change of jurisdiction, or the disturbed state of the country render it impracticable. U.S.v. Arredondo, 6 Pet. 691; U. S. v. Fremont, 17 How. 560; U. S. v. Reading, 18 How. 1. And so where a condition is designed for the benefit of a third person, who by his own act renders performance impossible. Jones v. Doe, 1 Scam. 276; see Jones v. Walker, 13 B. Monr. 163. (12) A condition in general restraint of alienation, either by the grantee himself or on legal proceedings against him, is void in a conveyance in fee, as repugnant to the estate conveyed. Blackstone Bank v. Davis, 21 Pick. 42; Taylor v. Sutton, 15 Geo. 103; see Newkerk v. Newkerk, 2 Caines, 345. But reasonable restraints upon the mode in which premises are to be used, may be made conditions even in grants of the fee. See Gillis v. Bailey, 1 Fost. 149; Gray v. Blanchard, 8 Pick. 253; Wheeler v. Earle, 5 Cush. 31; Verplank v. Wright, 23 Wend. 506. A condition that land granted for a church and a school shall be used only for a church is void for repugnancy. Canal Bridge Co. v. Methodist Society, 13 Metc. 335. If the act of the law renders performance impossible, the party is excused. Anglesea v. Church Wardens, 6 Q. B. 114. Although equity will sometimes relieve against conditions where the act to be done was such that the injury from failure to perform it is capable of a certain compensation in damages, it will not assist in enforcing them by forfeiture, but will leave parties to their remedy at law, Warner v. Bennett, 31 Conn. 478; Crane v, Dwyer, 9 Mich. 350. 435 Vivum vadium, or living pledge, is when a man borrows a sum (suppose 2007.) of another; and grants him an estate, as of 201. per annum, to hold till the rents and profits shall repay the sum so borrowed. This is an estate conditioned to be void, as soon as such sum is raised. And in this case the land or pledge is said to be living; it subsists, and survives the debt; and immediately on the discharge of that, results back to the borrower. (w) But mortuum vadium, a dead pledge, or mortgage (which is much more common than the other), is where a man borrows of another a specific sum (e. g. 2001.) *and grants him [*158] an estate in fee, on condition that if he, the mortgagor, shall repay the mortgagee the said sum of 2007. on a certain day mentioned in the deed, that then the mortgagor may re-enter on the estate so granted in pledge; or, as is now the more usual way, that then the mortgagee shall re-convey the estate to the mortgagor: in this case, the land, which is so put in pledge, is by law, in case of non-payment at the time limited, forever dead and gone from the mortgagor; and the mortgagee's estate in the lands is then no longer conditional, but absolute. But, so long as it continues conditional, that is, between the time of lending the money, and the time allotted for payment, the mortgagee is called tenant in mortgage. (x) But as it was formerly a doubt, (y) whether, by taking such estate in fee, it did not become liable to the wife's dower, and other incumbrances, of the mortgagee (though that doubt has been long ago overruled by our courts of equity), (z) it therefore became usual to grant only a long term of years by way of mortgage; with condition to be void on re-payment of the mortgage-money; which course has been since pretty generally continued, principally because on the death of the mortgagee such term becomes vested in his personal representatives, who alone are entitled in equity to receive the money lent, of whatever nature the mortgage may happen to be. (13) As soon as the estate is created, the mortgagee may immediately enter on the lands; but is liable to be dispossessed, upon performance of the condition by payment of the mortgage-money at the day limited. And therefore the usual way is to agree that the mortgagor shall hold the land till the day assigned for payment; when, in case of failure, whereby the estate becomes absolute, the mortgagee may enter upon it and take possession, without any possibility at law of being afterwards evicted by the mortgagor, to whom the land is now forever dead. But here again the courts of equity interpose; and though a mortgage [*159] be thus forfeited, and the *estate absolutely vested in the mortgagee at the common law, yet they will consider the real value of the tenements compared with the sum borrowed. And, if the estate be of greater value than (w) 1bid. 205. (x) Litt. § 332. (y) Ibid, í 357. Cro. Car. 191. (*) Hardr. 466. (13) There are two parts to a mortgage, the conveyance and the defeasance. These are usually embraced in the same instrument, which is executed by the mortgagor alone, and conveys the land at the same time that it specifies the condition on which the conveyance shall be defeated. But sometimes they are executed separately, in which case the mortgagor executes the conveyance, and the mortgagee executes and delivers to the mortgagor an instrument of defeasance. A deed absolute in form without any written defeasance is nevertheless a mortgage if given to secure a pre-existing debt, and resort may be had to the surrounding circumstances to determine whether that was the real purpose or not. And in some of the states it is held that a parol agreement cotemporaneous with the giving of a deed may be shown in order to establish that a deed was to be a mortgage only. See authorities collected in Emerson v. Atwater, 7 Mich. 12. And see Hodges v. Ins. Co., 8 N. Y. 416; Despard v. Walbridge, 15 id. 374. The vendor of real estate who has not been fully paid the purchase money has a lien upon the land for the payment, in the absence of any express contract on the subject, unless he has received security for the payment, or the circumstances are such as to preclude the idea that the parties expected such a lien to exist. White v. Williams, 1 Paige, 502; Sears v. Smith, 2 Mich. 243; Chilton v. Braiden's Admr., 2 Black, 458; Tobey v. McAlister 9 Wis. 463; Neil v. Kinney, 11 Ohio, N. S. 58; Boos v. Ewing, 17 Ohio, 500; Manly v. Slason, 21 Vt. 277; Lusk v. Hopper, 3 Bush. 179; Piedmont, &c. Co. v. Green, 3 W. Va. 54; Boynton v. Champlin, 42 Ill, 57. This lien continues so long as the land remains in the hands of the purchaser, and would also follow it in the hands of one who received a conveyance with knowledge of the lien or without consideration. See Mackreth v. Symmons, 15 Ves. 329, and notes thereto in 1 Lead. Cas. in Equity. The lien is enforced in equity as an equitable mortgage. This lien does not appear to exist in Kansas. Simpson v. Mundee, 3 Kansas, 172, |