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Chapter the tenth.

Of ESTATES upon CONDITION.

BESIDES the feveral divifions of eftates, in point of intereft, which we have confidered in the three preceding chapters, there is alfo another fpecies ftill remaining, which is called an eftate upon condition ; being fuch whofe exiftence depends upon the happening or not happening of fome uncertain event, whereby the eftate may be either originally created, or enlarged, or finally defeated ^a . And thefe conditional eftates I have chofen to referve till laft, becaufe they are indeed more properly qualifications of other eftates, than a diftinct fpecies of them felves ; feeing that any quantity of intereft, a fee, a freehold, or a term of years, may depend upon thefe provifional reftrictions. Eftates then upon condition, thus underftood, are of two forts : 1. Eftates upon condition implied : 2. Eftates upon condition expreffed : under which laft may be included, 3. Eftates held in vadio, gage, or pledge : 4. Eftates by ftatute merchant or ftatute ftaple : 5. Eftates held by elegit.

1.        Estates upon condition implied in law, are where a grant of an eftate has a condition annexed to it infeparably, from it's effence and conftitution, although no condition be expreffed 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 fecret condition, that the grantee fhall duly execute his office ^b,

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^a Co. Litt. 201
^b Litt. §. 378.
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on breach of which condition it is lawful for the grantor, or his heirs, to ouft him, and grant it to another perfon ^c. For an office, either public or private, may be forfeited by mif-ufer or non-ufer ; both of which are breaches of this implied condition. 1. By mif-ufer, or abufe ; as if a judge takes a bribe, or a park-keeper kills deer without authority. 2. By non-ufer, or neglect ; which in public offices, that concern the adminiftration of juftice, or the commonwealth, is of itfelf a direct and immediate caufe of forfeiture : but non-ufer of a private office is no caufe of forfeiture, unlefs fome fpecial damage is proved to be occafioned thereby ^d. For in the one café delay muft neceffarily be occafioned in the affairs of the public, which require a conftant attention ; but, private offices not requiring fo regular and unremitted a fervice, the temporary neglect of them is not neceffarily productive of mifchief ; upon which account fome fpecial lofs muft be proved, in order to vacate thefe. Franchifes alfo, being regal privileges in the hands of a fubject, are held to be granted on the fame condition of making a proper ufe of them ; and therefore they may be loft and forfeited, like offices, either by abufe or by neglect ^c.

U pon the fame principle proceed all the forfeitures which are given by law of life eftates and others ; for any acts done by the tenant himfelf, that are incompatible with the eftate which he holds. As if tenants for life or years enfeoff a ftranger in feefimple : this is, by the common law, a forfeiture of their feveral eftates ; being a breach of the condition which the law annexes thereto, viz. that they fhall not attempt to create a greater eftate then they themfelves 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, becaufe their eftate is determined by the breach of the condition, “ that they fhall not “ commit felony,” which the law tacitly annexes to every feodal donation.

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^c Litt. §. 379.
^d Co. Litt. 233.
^e 9 Rep. 50.
^f Co. Litt. 215.
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II. A n eftate on condition expreffed in the grant itfelf, is where an eftate is granted, either in fee-fimple or otherwife, with an exprefs qualification annexed, whereby the eftate granted fhall either commence, be enlarged, or be defeated, upon performance or breach of fuch qualification or condition ^g. Thefe conditions are therefore either precedent, or fubfequent. Precedent are fuch as muft happen or be performed before the eftate can veft or be enlarged ; fubfequent are fuch, by the failure or nonperformance of which an eftate already vefted may be defeated. Thus, if an eftate for life be limited to A upon his marriage with B, the marriage is a precedent condition, and till that happens no eftate ^h is vefted in A. Or, if a man grant to his leffee for years, that upon payment of a hundred marks within the term he fhall have the fee, this alfo is a condition precedent, and the fee-fimple paffeth not till the hundred marks be paid ⁱ. But if a man grant an eftate in fee-fimple referving to himfelf and his heirs a certain rent ; and that, if fuch rent be not paid at the times limited, it fhall be lawful for him and his heirs to re-enter, and avoid the eftate ; in this café the grantee and his heirs haveand eftate upon condition fubfequent, which is defeafible if the condition be not ftrictly performed ^k. To this clafs may alfo be referred all bafe fees, and fee-fimples conditional at the common law ^l. Thus an eftate to a man and his heirs, tenants of the manor of Dale, is an eftate on condition that he and his heirs continue tenants of that manor. And fo, if a perfonal annuity be granted at this day to a man and the heirs of his body ; as this is no tenement within the ftatute of Wftminfter the fecond, it remains, as at common law, a fee-fimple on c condition that the grantee has heirs of his body. Upon the fame principle depend all the determinable eftates of freehold, which we mentioned in the eighth chapter ; as durante viduitate, &c : thefe are eftates upon condition that the grantees do not marry, and the like. And, on the breach of any

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^g Co. Litt. 201.
^h Show. Parl. Caf. 83. &c.
^I Co. Litt. 217.
^k Litt. §. 325.
^l See pag. 109. 110. 111.
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of thefe fubfequent conditions by the failure of thefe contingences ; by the grantee's not continuing tenant of the manor of Dale, by not having heirs of his body, or by not continuing fole ; the eftates which were refpectively vefted in each grantee are wholly determined and void.

A distinction is however made between a condition in deed and a limitation, which Littleton ^m denominates alfo a condition in law. For when an eftate is fo expreffly confined and limited by the words of it's creation, that it cannot endure for any longer time than till the contingency happens upon which the eftate is to fail, this is denominated a limitation : as when land is granted to a man, fo long as he is parfon of Bale, or while he continues unmarried, or until out of the rents and profits he fhall have made 500 l .and the like ⁿ. In fuch cafes the eftate determines as foon as the contingency happens, ( when he ceafes to be parfon, marries a wife, or has received the 500 l.) and the next fubfequent eftate, which depends upon fuch determination, becomes immediately vefted, without any act to be done by him who is next in expectancy. But when an eftate is, ftrictly fpeaking, upon condition in deed (as if granted expreffly upon condition to be void upon the payment of 40 l. by the grantor, or fo that the grantee continues unmarried, or provided he goes to York, &c. ^o) the law permits it to endure beyond the time when fuch contingency happens, unlefs the grantor or his heirs or affigns take advantage of the breach of the condition, and make either an entry or a claim in order to avoid the eftate ^p. But, though ftrict words of condition be ufed in the creation of the eftate, yet if on breach of the condition the eftate be limited over to a third perfon, and does not immediately revert to the grantor or his reprefentatives, (as if an eftate be granted by granted by A to B, on condition that within tow years B intermarry with C, and on failure thereof then to D and his heirs) this the law conftrues to be a limitation

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^m §. 380. 1. Inft. 234.
ⁿ 10 Rep. 41.
^o Ibid. 42.
^p Litt. §. 347. Stat. 32 Hen. VIII. c. 34.
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and not a condition ^q : becaufe, if it were a condition, then, upon the breach thereof, only A or his reprefentatives could avoid the eftate by entry, and fo D's remainder might be defeated by their neglecting to enter ; but, when it is a limitation, the eftate of B determines, and that of D commences, the inftant that the failure happens. So alfo, if a man by his will devifes land to his heir at law, on condition that he pays a fum of money, and for non-payment devifes it over, this fhall be confidered as a limitation ; otherwife no advantage could be taken of the non-payment, for none but the heir himfelf could have entered for a breach of condition ^r.

I n all thefe inftances, of limitations or conditions fubfequent, it is to be obferved, that fo long as the condition, either exprefs or implied, either in deed or in law, remains unbroken, the grantee may have an eftate of freehold, provided the eftate upon which fuch condition is annexed be in itfelf of a freehold nature ; as if the original grant exprefs either an eftate of inheritance, or for life, or no eftate at all, which is conftructively an eftate for life. For the breach of thefe conditions being contingent and uneertain, this uncertainty preferves the freehold ^s ; becaufe the eftate is capable to laft for ever, or at leaft for the life of the tenant, fuppofing the condition to remain unbroken. But where the eftate is at the utmoft a chattel intereft, which muft determine at a time certain, and may determine fooner, (as a grant for ninety nine years, provided A, B, and C, and the furvivor of them, fhall fo long live) this ftill continues a mere chattel, and is not, by it's uncertainty, ranked among eftates of freehold.

These exprefs conditions, if they be impoffible at the time of their creation, or afterwards become impoffible by the act of God or the act of the feoffor himfelf, or if they be contrary to law, or repugnant to the nature of the eftate, are void. In any ofwhich cafes, if they be conditions fubfequent, that is, to be per-

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^q Ventr. 202.
^r Cro. Eliz. 205. 1 Roll. Abr. 411.
^s Co. Litt. 42.
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formed after the eftate is vefted, the eftate fhall become abfolute in the tenant. As, if a feoffment be made to a man in fee-fimple, on condition that unlefs he goes to Rome in twenty four hours ; or unlefs the marries with Jane S. by fuch a day ; ( within which time the woman dies, or the feoffor marries her himfelf) or unlefs the kills another ; or in café he alienes in fee ; then and in any of fuch cafes the eftate fhall be vacated and determine : here the condition is void, and the eftate made abfolute in the feoffee. For he hath by the grant the eftate vefted in him, which fhall not be defeated afterwards by a condition either impoffible, illegal, or repugnant ^t. But if the condition be precedent, or to be performed before the eftate vefts, as a grant to a man that, if he kills another or goes to Rome in a day, he fhall have an eftate in fee ; here, the void condition being precedent, the eftate which depends thereon is alfo void, and the grantee fhall take nothing by the grant : for he hath no eftate until the condition be performed ^u.

There are fome eftates defeafible upon condition fubfequent, 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.

Vivum vadium, or living pledge, is when a man borrows a fum (fuppofe 200l.) of another ; and grants him an eftate, as, of 20 l. per annum, to hold till the rents and profits fhall repay the fum fo borrowed. This is an eftate conditioned to be void, as foon as fuch fum is raifed. And in this café the land or pledge is faid to be living : it fubfifts, and furvives the debt ; and, immediately on the difcharge of that, refults 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

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^t Co. Litt. 206.
^u Ibid.
^w Ibid. 205.
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a fpecific
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a fpecific (e.g. 200l.) and grants him an eftate in fee, on condition that if he, the mortgagor, fhall repay the mortgagee the faid fum of 200l. on a certain day mentioned in the deed, that then the mortgagor may re-enter on the eftate fo granted in pledge ; or, as is now the more ufual way, that the mortgagee fhall re-convey the eftate to the mortgagor : in this café the land, which is fo put in pledge, is by law, in café of non-payment at the time limited, for ever dead and gone from the mortgagor ; and the mortgagee's eftate in the lands is then no longer conditional, but abfolute. But, fo 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 fuch eftate 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 over-ruled by our courts of equity ^z) it therefore became ufual 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 courfe has been fince continued, principally becaufe on the death of the mortgagee fuch term becomes vefted in his perfonal reprefentatives, who alone are intitled in equity to receive the money lent, of whatever nature the mortgage may happen to be.

As foon as the eftate is created, the mortgagee may immediately enter on the lands ; but is liable to be difpoffeffed, upon performance of the condition by payment of the mortgage-money at the day limited. And therefore the ufual way is to agree that the mortgagor fhall hold the land till the day affigned for payment ; when in café of failure, whereby the eftate becomes abfolute, the mortgagee may enter upon it and take poffeffion, without any poffibility at law of being afterwards evicted by the mortgagor, to whom the land is now for ever dead. But here again the courts of equity interpofe ; and, though a mortgage

.{FS}
^x Litt. §. 332.
^y Ibid. §. 357. Cro. Car. 191.
^z Hardr. 466.
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be thus forfeited, and the eftate abfolutely vefted in the mortgagee at the common law, yet they will confider the real value of the tenements compared with the fum borrowed. And, if the eftate be of greater value than the fum lent thereon, they will allow the mortgagor at any reafonable time to re-call or redeem his eftate ; paying to the mortgagee his principal, intereft, and expenfes : for otherwife, in ftrictnefs of law, an eftate worth 1000l. might be forfeited for non-payment of 100l. or a lefs fum. This reafonable advantage, allowed to mortgagors, is called the equity of redemption : and this enables a mortgagor to call on the mortgagee, who has poffeffion of his eftate, to deliver it back and account for the rents and profits received, on payment of his whole debt and intereft ; thereby turning the mortuum into a kind of vivum vadium. But, on the other hand, the mortgagee may either compel the fale of the eftate, in order to get the whole of his eftate prefently, or, in default thereof, to be for ever foreclofed from redeeming the fame ; that is, to lofe his equity of redemption without poffibility of re-call. And alfo, in fome cafes of fraudulent mortgages ^a, the fraudulent mortgagor forfeits all equity of redemption whatfoever. It is not therefore ufual for mortgagees to take poffeffion of the mortgaged eftate, unlefs where the fecurity is precarious, or fmall ; or where the mortgagor neglects even the payment of intereft : when the mortgagee is frequently obliged to bring an ejectment, and take the land into his own hands, in the nature of a pledge, or the pignus of the Roman law : whereas, while it remains in the hands of the mortgagor, it more refembles their hypotheca, which was where the poffeffion of the thing pledged remained with the debtor ^b. But, by ftatute 7 Geo. II. c. 20. after payment or tender by the mortgagor of principal, intereft, and cofts, the mortgagee can maintain no ejectment ; but may be compelled to reaffign his fecurities. In Glanvil's time, when the univerfal me-

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^a Pigncris appellatione cam proprie rem con** dicimus, quat fimul etiam traditur creditori. At cam, quae fine traditione nuda conventione tenetur, proprie hypotheeae pooellat** contineri dicimaus. Inft. 1. 4. 1. 6. §. 7.
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thod
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thod of conveyance was by livery of feifin or corporal tradition of the lands, no gage or pledge of lands was good unlefs poffeffion was alfo delivered to the creditor ; “ fi non fequatur ipfius va- “ dii traditio, curia domini regis hujufmodi privates conventions tueri “non folet :” for which the reafon given is, to prevent fubfequent and fraudulent pledges of the fame land ; “ cum in tali cafu “ poffit eadem res pluribus aliis creditoribus tum prius tum pofterius “ invadiari ^c. And the frauds which have arifen, fince the exchange of thefe public and notorious conveyances for more private and fecret bargains, have well evinced the wifdom of our antient law.

IV. A fourth fpecies of eftates, defeafible on condition fubfequent, are thofe held by ftatute merchant, and ftatute ftaple ; which are very nearly related to the vivum vadium before-mentioned, or eftate held till the profits thereof fhall difcharge a debt liquidated or afcertained. For both the ftatute merchant and ftatute ftaple are fecurities for money ; the one entered into purfuant to the ftatute 13 Edw. I. de mercatoribus, and thence called a ftatute merchant ; the other purfuant to the ftatute 27 Edw. III. c. 9. before the mayor of the ftaple, that is to fay, the grand mart for the principal commodities or manufactures of the kingdom, formerly held by act of parliament in certain trading towns ^d, and thence this fecurity is called a ftatute ftaple. They are both, I fay, fecurities for debts, originally permitted only among traders, for the benefit of commerce ; whereby the lands of the debtor are conveyed to the creditor, till out of the rents and profits of them his debt may be fatisfied : and during fuch time as the creditor fo holds the lands, he is tenant by ftatute merchant or ftatute ftaple. There is alfo a fimilar fecurity, the recognizance in the nature of a ftatute ftaple, which extends the benefit of this mercantile tranfaction to all the king's fubjects in general, by virtue of the ftatute 23 Hen. VIII. c. 6.

V. A notherfimilar conditional eftate, created by operation of law, for fecurity and fatisfaction of debts, is called an eftate

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^c 1. 10. c. 8.
^d See Book I. ch. 8.
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by elegit. What an elegit is, an why fo called, will be explained in the third part of thefe commentaries. At prefent I need only mention, that it is the name of a writ, founded on the ftatute ^e of Weftm. 2. by which, after a plaintiff has obtained judgment for his debt at law, the fheriff gives him poffeffion of one half of the defendant's lands and tenements, to be held, occupied, and enjoyed, until his debt and damages are fully paid : and, during the time he fo holds them, he is called tenant by elegit. It is eafy to obferve, that this is alfo a mere conditional eftate, defeafible as foon as the debt is levied. But it is remarkable, that the feodal reftraints of alienating lands, and charging them with the debts of the owner, were foftened much earlier and much more effectually for the benefit of trade and commerce, than for any other confideration. Before the ftatute of quia emptores ^f, it is generally thought that the proprietor of lands was enabled to alienate no more than a moiety of them : the ftatute therefore of Weftm. 2. permits only fo much of them to be affected by the procefs of law, as a man was capable of alienating by his own deed. But by the ftatute de mercatoribus ( paffed in the fame year ^g) the whole of a man's lands was liable to be pledged in a ftatute merchant, for a debt contracted in trade ; though only half of them was liable to be taken in execution for any other debt of the owner.

I shall conclude what I had to remark of thefe eftates, by ftatute merchant, ftatute ftaple, and elegit, with the obfervation of fir Edward Coke ^h. “ Thefe tenants have uncertain interefts “ in lands and tenements, and yet they have but chattels and no “ freeholds;” (which makes them an exception to the general rule) “ becaufe though they may hold an eftate of inheritance, “ or for life, ut liberum tenementum, until their debt be paid ; yet “ it fhall go to their executors : for ut is fimilitudinary ; and “ though, to recover their eftates, they fhall have the fame remedy “ (by affife) as a tenant of the freehold fhall have, yet it is but

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^e 13 Edw. I. c. 18.
^f 18 Edw. I.
^g 13 Edw. I.
^h 1 Inft. 42. 43.
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“ the fimilitude of a freehold, and nullum fimile eft idem.” This indeed only proves them to be chattel interefts, becaufe they go to the executors, which is inconfiftent with the nature of a freehold : but it does not affign the reafon why thefe eftates, in contradiftinction to other uncertain interefts, fhall veft in the executors of the tenant and not the heir ; which is probably owing to this : that, being a fecurity and remedy provide for perfonal debts owing to the deceafed, to which debts the executor is intitled, the law has therefore thus directed their fucceffion ; as judging it reafonable, from a principle of natural equity, that the fecurity and remedy fhould be vefted in them, to whom the debts if recovered would belong. And, upon the fame principle, if lands be devifed to a man's executor, until out of their profits the debts due from the teftator be difcharged, this intereft in the lands fhall be a chattel intereft, and on the death of fuch executor fhall go to his executors ^I: becaufe they, being liable to pay the original teftator's debts, fo far as his affets will extend, are in reafon intitled to poffefs that fund, out of which he has directed them to be paid.

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