[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 (¿). 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 (k). But secondly, estates on condition expressed in the grant may be created not only by a condition in deed, but by a conditional limitation(1), 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 (m). 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 heirs of his body. Upon the same principle depend all the determinable estates of freehold, which we mentioned in the fourth chapter: as durante viduitate, &c.: these are estates upon condition that the grantees do not marry, and the like.]

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

(m) See pp. 225, 226.

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 £500 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 £500,) 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 £40 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 (n).] 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. 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 (o); but if the lease had been for life, an entry would have been necessary before it could have been defeated (p).

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 when they enter, the

(n) 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.

(0) But the lessor has an option whether he will consider it as void or

not.

Roberts v. Davey, 4 Barn. &

Adol. 664.

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

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 (q). It was also the rule of the common law that the right of entry could not be assigned in any case to a stranger(r). So that if a man had made a lease for life, reserving a rent, with proviso for reentry in case of non-payment, and the lessor granted over his reversionary estate to another, the latter could take no benefit from the condition (s). But by statute 32 Hen. VIII. c. 34(t), 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 it relate to the payment of rent, the restriction from waste, or other like object tending to the benefit of the reversionary interest (u). And with respect to conditional limitations, a stranger may in all cases take advantage of these, by the common law. For if a man make a lease until J. S. shall return from Rome, and afterwards grant the reversion over to another, then, on the return of J. S. from Rome, the grantee shall be entitled to enter, the interest of the lessee being by the terms of the limitation itself determined (v).

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.

(9) Fearne, by Butler, 381, n. (a), 9th ed. And upon such entry the grantor is entitled to the emblements. Davis v. Eyton, 7 Bing. 154.

(r) Litt. s. 347.

(s) Co. Litt. 215 a.

() As to this statute, vide Thursby

v. Plant, 1 Saund. by Wms. 237, and

the notes thereto. The statute extends only to leases by indenture. Per Parke, B.; Buckworth v. Simpson, 5 Tyrw. 354.

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

(v) Co. Litt. 214 b; Mary Portington's case, 10 Rep. 42.

[For the breach of these conditions being contingent and uncertain, this uncertainty preserves the freehold (x); 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 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, 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 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 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 (y). 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 (z).]

On the other hand, even where the condition is valid and capable of being enforced, it is also capable of being waived by the grantor at his pleasure (a); and as the law always leans against forfeitures, it will consider him as having waived his right to enter for breach of a condition subsequent, if, after notice of the breach committed, he does any act inconsistent with an intention to avail himself of the forfeiture. Thus, if a lease be made with a proviso that, in the event of the lessee's assigning his interest, the lessor shall be at liberty to enter on the land demised, as of his former estate, he will nevertheless not be entitled to enter, if, after an assignment made, he accepts rent from the assignee (b).

[There are some estates defeasible upon condition subsequent, that require a more particular 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 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 (c). 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. 2007.), and grants him an estate,] usually an estate [in fee, on condition that if he, the mortgagor, shall repay the

(a) Co. Litt. 218 a.

(b) Whitchcot v. Fox, Cro. Jac. 398; Co. Litt. 211 b; Green's case, Cro. Eliz. 3; Pennant's case, 3 Rep. 64 a; Fenn v. Smart, 12 East, 444;

Doe v. Lewis, 5 Ad. & El. 277; Doe v. Rees, 4 Bing. N. C. 384.

(c) Co. Litt. 205 a; vide Fenwick v. Reed, 1 Meriv. 119.