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the said act, should thereafter alien, give, grant, bargain and sell, or otherwise convey away the same, or any part thereof, or any other thing do, which should or might be to the disherison of the heirs inheritable by force of the said act, or whereby any of them should be barred, or put from entry into the premises.

38. By the stat. 5 Ann. c. 3. it is enacted, that the Duke of Marlborough shall stand and be seised of the honour, manor, and park of Woodstock, for and during the term of his natural life, remainder to the heirs male of his body, remainder to all his daughters, and the heirs male of their respective bodies, severally and successively, according to the priority of their birth; with a proviso, that neither the duke or the heirs male of his body, nor any of his daughters or the heirs male of their bodies, shall have any power, by fine or recovery, or any other act, to hinder, bar, or disinherit any the person or persons to or upon whom the said manors, &c. were thereby limited, from holding or enjoying the same, according to the limitations in the act mentioned.

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2. Condition. By what Words 36. Statute De Donis.

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28. Only binds the Heir where he 46. Stat. 4 Ann. c. 16.

has Assets.

30. Collateral Warranty.

47. How Warranties may be destroyed.

Of the Reddendum.

1 Inst. 47 a. Touch. 80.

W

SECTION 1.

ITH respect to the reddendum, or reservation in a deed, the following circumstances are necessary to make it good: 1°. It must be by apt words. 2°. It must be of some other thing, issuing or coming out of the thing granted; and not a part of the thing itself, nor of something issuing out of another thing. 3o. It must be of such thing whereunto the grantor Tit. 28. c. 1. may resort, to distrain. 4°. It must be made to one of the grantors, and not to a stranger to the deed.

Condition. By what Words created. $328.

2. The nature of conditions having been explained in Title XIII., it will here only be necessary to inquire by what words a condition in deed may be created.

3. Littleton says-" Divers words there be, which by virtue of themselves make estates upon condition.

One is the word, sub conditione. As if A. enfeoff B.
of certain lands, to have and to hold to the said B.
and his heirs, upon condition that the said B. and his
heirs do pay, or cause to be paid, to the aforesaid A.
and his heirs yearly such a rent, &c. : in this case, with-
out any more saying, the feoffee hath an estate upon
condition. Also if the words were such; provided § 329.
always, that the aforesaid B. do pay, or cause to be
paid, to the aforesaid A. such a rent, &c. ; or these so
that the said B. do pay, or cause to be paid to the
said A. such a rent, &c. ; in these cases, without more
saying, the feoffee hath but an estate on condition.
Also there be other words in a deed, which cause § 330.
the tenements to be conditional. As if upon such
feoffment a rent be reserved to the feoffor, &c., and
afterwards this word is put into the deed; that if it
happen the aforesaid rent to be behind in part or in
all, that then it shall be lawful for the feoffor and
his heirs to enter, &c. this is a deed upon condi-
tion."

4. There are other words that make a condition

in a deed, provided a power of entry is added to
them. Thus Littleton says, the words si contingat § 331.
will create a condition, if a power of entry is added;

and therefore, if A. grants lands to B., to have and Touch. 122. to hold to him and his heirs; and if, or, but if it happen, that the said B. do not pay to A. 10%. at Easter, without more words, this is not a good condition. But if these words be added, that then it shall be lawful for A. to re-enter, it will be a good condition.

5. It is said in the Touchstone, that although the words proviso, ita quod, and sub conditione, are the most proper words to make a condition, yet they had not always that effect, but frequently served for

Idem.

Idem.

other purposes: for sometimes they operated as a qualification or limitation, and sometimes as a covenant. And when inserted among the covenants in a deed, they operated as a condition only when attended with the following circumstances: 1". Where the clause wherein they were, had no dependance upon any other sentence in the deed, but stood by itself. 2o. Where it was compulsory to the feoffee, donee, &c. 3°. Where it came on the part, and by the words of the feoffor, donor, or lessor, &c. 4°. Where it was applied to the estate, and to some other

matter.

6. Thus, if a person grants a manor, with an advowson appendant, and after the habendum and reservation of the rent, amongst the covenants, there is this clause inserted: provided that the grantee shall regrant the advowson for the life of the grantor: this is a good condition.

7. The word provided may operate as a condition 1 Inst. 203 b. and a covenant; as if the words are, provided always,

Idem.

and the feoffee doth covenant, that neither he nor his heirs shall do such an act: this is both a condition and a covenant. But if the clause have dependance on another clause of the deed; or be the words of the feoffee to compel the feoffor to do something; then it is not a condition, but a covenant only: as if there be in a deed a covenant that the lessee shall scower the ditches, and then these words follow, provided that the lessor shall carry away the earth: or if there is a covenant that the lessee shall repair the houses, and then these words follow; provided that the lessor do provide timber: there it is only a covenant.

8. So if this clause be applied to some other thing, and not to the thing granted, then it is no condition. As if a lease of land be made, rendering rent

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at B.; provided that if such a thing happen, it shall be paid at C. this does not make the estate conditional. Or a lease is made for years, without impeachment of waste; provided that the lessee shall not pull down the houses: this does not make the estate conditional. Or a lease is made for years, rendering rent; provided that the lessor shall not distrain for the rent: this is a good condition, but not annexed to the

estate.

214 b.

9. Lord Coke says, the word si, if, frequently 1 Inst. 204 a. creates a condition, but not always; for sometimes Touch. 123. it makes a limitation; as where a lease is made for years, if J. S. shall so long live.

204 a.

10. Conditions may be annexed to demises for Id. 1 Inst. years, without any of these formal words, where the apparent intent of the lessor is to make the estate conditional; although the words be not used as the words of the lessor, but as those of the lessee, or indefinitely of neither. Thus if a lessee for years covenants in his lease, that if he his, executors or assigns, shall alien, it shall be lawful for the lessor to re-enter; it seems this is a good condition, and not Whichcot a covenant only and the lessor may take it as a covenant or condition; but not as both.

Tit. 13. c. 1.

v. Fox,

$39.

1 Term R.

Willes Rep.

11. It was laid down in a modern case, by the Court of King's Bench, that no precise technical 645. words are required in a deed, to make a stipulation 156. a condition precedent or subsequent: neither did it depend on the circumstance, whether the clause was placed prior or posterior in the deed, so that it operated as a proviso or a covenant; for the same words had been construed to operate as either the one or the other, according to the nature of the transaction.

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