double the former rent, for such time as he continues in possession. These statutes have almost put an end to the practice of tenancy by sufferance, unless with the tacit consent of the owner of the tenement. (6)

(6) The student will not fail to perceive the distinction between the two statutes; in the first the landlord has determined the tenancy, and therefore recovers double value; in the latter the tenancy being only determinable, and the tenant having waived his determination of it, while the landlord has done nothing on his part to put an end to it, the penalty is the payment of double rent. The statute enables him to distrain, or to bring his action for the double rent; whichever of these two remedies he pursues, he treats the defendant as still his tenant, and therefore cannot concurrently bring an action of ejectment, in which he is to treat him as a trespasser for the same period of time.

CHAPTER THE TENTH:

OF ESTATES UPON CONDITION.

BESIDES the several divisions of estates in point of interest, which we have considered in the three preceding chapters, there is also another species still remaining, which is called an estate upon condition; being such whose existence depends upon the happening or not happening of some uncertain event, whereby the estate may be either originally created, or enlarged, or finally defeated. And these conditional estates I have chosen to reserve till last, because they are, indeed, more properly qualifications of other estates, than a distinct species of themselves; seeing that any quantity of interest, a fee, a freehold, or a term of years, may depend upon these provisional restrictions. 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.

1. 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, on breach of which condition it is lawful [153] for the grantor, or his heirs, to oust him, and grant it to another person. For an office, either public or private, may

[154]

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. 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.

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. 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 feodal donation. (1)

66

II. AN estate on condition expressed in the grant itself is where an estate is granted, either in fee-simple or otherwise,

d Co. Litt. 233.

* 9 Rep. 50.

f Co. Litt. 215.

(1) As to tenant for years, if he be convicted of felony, his term being a chattel interest, will be forfeited to the crown, not in any feudal right, or as for a breach of any condition implied in the creation of his estate.

with an express qualification annexed, whereby the estate granted shall either commence, be enlarged, or be defeated, upon performance or breach of such qualification or conditions. These conditions, are, therefore either precedent or subsequent. Precedent are such as must happen or be per formed 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 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 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 feesimple 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 time 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. To this class may also be referred all base fees, and fee-simples conditional at the common-law'. 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 cominon 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 contingencies: [ 155 ] 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.

& Co. Litt. 201,

h Show. Parl. Cas. 83, &c. iCo. Litt. 217.

* Litt. § 325.

See pag. 109, 110, 111.

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 it's 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". 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 or assigns take advantage of the breach of the condition, and make either an entry or a claim in order to avoid the estate". 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 limitation and [156] not a condition: 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: (2) but when it is a limitation,

§ 380. 1 Inst. 234. n 10 Rep. 41.

• Ibid. 42.

Co. Litt. 214. b. Stat. 32 Hen. VIII.

c. 34.
91 Ventr. 202.

(2) D's remainder would be equally defeated by the entry of A, or his representatives, for that would defeat the livery made on the creation of the estates, and, of course, annul every estate then created. Litt. s. 347. Fearne, Con. Rem. 261. 6th Ed.