[tacitly annexes hereto a secret condition, that the grantee shall duly execute his office (d); on breach of which condition it is lawful for the grantor, or his heirs, to oust him, and grant it to another person (e). "Franchises" also, or 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(ƒ).

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 tenant for life or years enfeoff a stranger in fee simple]: this, by the common law, as we shall see hereafter (g), [was a forfeiture of their several estates; being a breach of the condition which the law annexes thereto, viz. that the tenants shall not attempt to create a greater estate than they themselves are entitled to (h).

II. An estate on condition expressed in the grant itself] is of two kinds. The first is [where an estate is granted -either in fee simple or otherwise-with an expressed qualification annexed, whereby the estate granted shall either commence, be enlarged, or be defeated, upon performance or breach of such qualification or condition (i),] which is described in the books as a condition in deed (j). [These conditions are therefore either precedent or subsequent. "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.] Thus, [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 is a condition precedent, and the fee simple passeth not till the hundred marks be paid (k). But if a man grant an estate in fee simple, reserving to himself and his heirs a certain rent, and that, if such rent be not paid at the times limited, it shall 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 (1).] But secondly, estates on condition expressed in the grant may be created not only by a condition in deed, but by a conditional limitation (m); which is, where an estate is so expressly defined 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. To this class may be referred all base fees, and fees simple conditional at the common law (n). 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 this is no tenement within the statute of Westminster the Second, it remains, as at common law, a fee-simple on condition that the grantee has

(k) Co. Litt. 217 b; Lord Stafford's case, 8 Rep. 73 b.

(1) Litt. s. 325.

(m) Co. Litt. 234 b; see Mary Portington's case, 10 Rep. 40 b; 41 b. The term used by Lord Coke is simply "a limitation." But as "limitation" is ordinarily used to express a more general idea (viz. the definition or circumscription in any conveyance, of the interest which the grantee is intended to take), the term

VOL. I.

"conditional limitation" better expresses the idea in the text, and is frequently adopted for that purpose (as in 1 Sand. Us. 149, 2nd ed.) It is right, however, to apprise the student that this term is used by different writers in different senses; see 1 Sand. Uses, 149, 2nd ed.; Fearne, by Butler, 10, n. (h), 9th ed.; Gilb. Us. by Sugd. 178.

(n) Vide sup. p. 243.

X

[heirs of his body. Upon the same principle depend all the determinable estates of freehold, mentioned in the fourth chapter: as durante viduitate, &c.: these are estates upon condition that the grantees do not marry, and the like (o).]

Between conditional limitations and estates depending on condition subsequent, (though bearing, on the whole, considerable resemblance to each other,) there is this difference that [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; 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 500l.,) 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.) the law permits it to endure beyond the time when such contingency happens, unless the grantor or his heirs take advantage of the breach of the condition, and make an entry in order to avoid the estate (p).] As to the necessity of entry, however, there is a diversity (says Lord Coke) between a condition annexed to a freehold and a condition annexed to a lease for years (q). Thus, if a lease for years be made on condition that, if the lessee goes not to Rome before such a day, the lease shall be void, the lease is ipso facto void upon the breach of the condition, without any entry by the lessor; but if the

(0) Vide sup. p. 261.

(p) Litt. s. 347, 331; stat. 32 Hen. 8, c. 34; Mary Portington's case, 10 Rep. 40 b, 41 b; Avelyn v. Ward, 1 Ves. sen. 420. As to the party on whom lies the onus probandi with respect to the breach of

the condition, see Brooke v. Spong. 15 Mee. & W. 153.

(9) As to re-entry by a lessor on breach of condition, see Roberts v. Davey, 4 Barn. & Adol. 664; Hill v. Kempshall, 7 C. B. 975.

lease had been for life, an entry would have been necessary before it could have been defeated (r).

The right of entry on breach of a condition subsequent, cannot be reserved in favour of a stranger, but only of the grantor or his heirs; and on entry by him or them, after breach, the effect is to defeat altogether the estate which had before passed to the grantee; so that the grantor or his heirs are in as of their former seisin (s). It was also the rule of the common law, that the right of entry could not be assigned in any case to a stranger (t). So that if a man had made a lease for life, reserving a rent, with proviso for re-entry in case of non-payment, and the lessor granted over his reversionary estate to another, the latter could take no benefit from the condition (u). But by statute 32 Hen. VIII. c. 34 (v), the law in this respect is altered, and the grantee of the reversion, upon a lease for life or years, shall have the same benefit of a condition, in case of a subsequent breach, as the grantor himself would have had,-provided that such condition relates to the payment of rent, the restriction from waste, or other like object tending to the benefit of the reversionary interest (x). And with respect to conditional limitations, a stranger may in all cases take advantage of these, even by the common law. Thus, if a man make a lease until J. S. shall return from Rome, and afterwards grant the reversion over to

(r) Co. Litt. 214 b. As to the nature of the entry required, see Doe v. Pritchard, 5 Barn. & Adol. 765.

(s) Fearne, by Butler, 381, n. (a), 9th ed. As to the rights of the grantor or his heirs on re-entry, in respect of the emblements, see Davis v. Eyton, 7 Bing. 154.

(t) Litt. s. 347.

(u) Co. Litt. 215 a.

(v) As to this statute, see Thursby v. Plant, 1 Saund. by Wms. 237, and the notes thereto; Buckworth v.

Simpson, 5 Tyrw. 354; Standen v. Chrismas and another, 10 Q. B. 135 ; Wright v. Burroughes, 3 C. B. 685. It may be observed here, that a right of entry which has actually accrued to the lessor, &c., for a condition broken, seems not to be assignable under 8 & 9 Vict. c. 106, s. 6, so as to allow the assignee of the reversion to recover possession of the premises by reason thereof. (See Hunt v. Remnant, 9 Exch. 635.)

(a) Co. Litt. 205 b; 1 Saund. by Wms. 287, n. (16).

another, such grantee, on the return of J. S. from Rome, shall be entitled to enter, the interest of the lessee being then determined by the terms of the limitation itself (y).

In all instances of estates upon express condition, it is to be observed, that so long as the condition [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 (z); because the estate is capable to last for ever, 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 reason of such its uncertainty ranked among estates of freehold.

These express conditions are void, if they be impossibl at the time of their creation, or afterwards become impossible by the act of God or the act of the feoffor himself; or if they be contrary to law, or repugnant to the nature of the estate. In any of which cases, if they be conditions subsequent, that 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 fee-simple, 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 determined: here the condition is void, and the estate made absolute in the feoffee. For he hath

(y) Co. Litt. 214 b; Mary Por- (z) Co. Litt. 42 a. tington's case, 10 Rep. 42.