[*150] *However, in common cases, copyhold estates are still ranked (for the reasons above-mentioned) among tenancies at will; though custom, which is the life of the common law, has established a permanent property in the copyholders who were formerly nothing better than bondmen, equal to that of the lord himself, in the tenements holden of the manor; nay sometimes even superior; for we may now look upon a copyholder of inhertance, with a fine certain, to be little inferior to an absolute freeholder in point of interest, and in other respects, particularly in the clearness and security of his title, to be frequently in a better situation.

III. An estate at sufferance, is where one comes into possession of land by lawful title, but keeps it afterwards without any title at all. As if a man takes a lease for a year, and after a year is expired continues to hold the premises without any fresh leave from the owner of the estate. Or if a man maketh a lease at will and dies, the estate at will is thereby determined: but if the tenant continueth possession, he is tenant at sufferance. (w) (15) But no man can be tenant at sufferance against the king, to whom no laches, or neglect in not entering and ousting the tenant is ever imputed by law; but his tenant, so holding over, is considered as an absolute intruder. (x) But, in the case of a subject, this estate may be destroyed whenever the true owner shall make an actual entry on the lands and oust the tenant: for, before entry, he cannot maintain an action of trespass against the tenant by sufferance, as he might against a stranger: (y) and the reason is, because the tenant being once in by a lawful title, the law (which presumes no wrong in any man) will suppose him to continue upon a title equally lawful; unless the owner of the land, by some public and avowed act, such as entry is, will declare his continuance to be tortious, or, in common language, wrongful. (16)

*Thus stands the law with regard to tenants by sufferance, and land[*151] lords are obliged in these cases to make formal entries upon their lands, (2) and recover possession by the legal process of ejectment; (17) and at the utmost, by the common law, the tenant was bound to account for the profits of the land so by him detained. (18) But now, by statute 4 Geo. II, c. 28, in case any tenant for life or years, or other person claiming under or by collusion with such tenant, shall wilfully hold over after the determination of the term, and demand made and notice in writing given by him, to whom the remainder or reversion of the premises shall belong, for delivering the possession thereof; such person, so holding over or keeping the other out of possession, shall pay for the time he detains the lands, at the rate of double their yearly value. And,

(15) [At the common law, in the absence of any special agreement, after the execution of legal mortgage, the mortgagor, so long as he retains possession, is tenant at sufferance of the mortgagee; but if there is a general agreement, either verbal or by writing, that he shall retain the possession, and no term is specified, he is tenant at will. See 1 Salk. 209; 3 Scott, 271; 1 T. R. 378; 3 Man. and R. 107; 2 B. and Ad. 473.]

(16) Jackson v. Parkhurst, 5 Johns. 128; Rising v. Stannard, 17 Mass. 282. After entry made, the owner may maintain trespass against the tenant; Dorrell v. Johnson, 17 Pick, 266; unless the statute requires notice to terminate the tenancy, in which case the tenant will not be liable to trespass before such notice.

(17) [It has been a generally received notion, that if a tenant for a term, from year to year, at will or at sufferance, hold over, and do not quit on request, the landlord is put to his action of ejectment, and cannot take possession; but see 7 T. R. 431; 1 Price Rep. 53; 1 Bing. Rep. 158; 6 Taunt. 202-7; from which it appears, that if the landlord can get possession, without committing a breach of the peace, he may do so; and indeed if he were to occasion a breach of the peace, and be liable to be indicted for a forcible entry, still he would have a defence to any action at the suit of the party wrongfully holding over, because the plea of liberum tenementum, or other title in the lessor, would necessarily be pleadable in bar.] See Jones v. Chapman, 2 Exch. 803; Harvey v. Brydges, 14 M. and W. 437 ; Davis v. Burrell, 10 C. B. 821; Pollen r. Brewer, 7 C. B., N. S. 371.

(18) Where the tenancy, by the statute, is to be determined by notice, the tenant holding over after notice is liable to pay rent. Hogsett r. Ellis, 17 Mich. 357.

by statute 11 Geo. II, c. 19, in case any tenant, having power to determine his lease, shall give notice of his intention to quit the premises, and shall not deliver up the possession at the time contained in such notice, he shall thenceforth pay 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. (19)

CHAPTER X.

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; (1) 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, (2) or finally defeated. (a) (3) 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.

(a) Co. Litt. 201.

(19) For still more summary remedies, see the statutes 1 and 2 Vic. c. 74, and 9 and 10 Vic. c. 94, s. 122. Some of the American statutes entitle a tenant at sufferance to notice before proceedings are taken to dispossess him. It is not quite clear what these mean, but it is assumed that the mere holding over does not entitle the occupant to notice, unless the holding is continued under circumstances from which an implication of assent on the part of the owner can arise. See Rowan v. Lytle, 11 Wend. 616; Livingston v. Tanner, 12 Barb. 481, and 14 N. Y. 64; Allen v. Carpenter, 15 Mich. 25.

(1) [As to things executed (a conveyance of lands, for instance), a condition, to be valid, must be created and annexed to the estate at the time that it is made, not subsequently; the condition may, indeed, be contained in a separate instrument, but then, that must be sealed and delivered at the same time with the principal deed. Co. Litt. 236, b; Touch. 126. As to things executory (such as rents, annuities, &c.), a grant of them may be restrained by a condition created after the execution of such grant. Co. Litt. 237, a. Littleton (in his 328th and three following sections) says, divers words there be, which, by virtue of themselves, make estates upon condition. Not only the express words, "upon condition," but also the words "provided always," or "so that," will make a feoffinent, or deed, conditional. And again (in his 331st section) he says, the words "if it happen" will make a condition in a deed, provided a power of entry is added. Without the reservation of such a power, the words "if it happen" will not, alone, and by their own force, make a good condition. This distinction is also noticed in Sheph. Touch. 122, where it is also laid down, that although the words " proviso," ," "so that," and "on condition," are the most proper words to make a condition; yet they have not always that effect, but frequently serve for other purposes; sometimes they operate as a qualification or limitation, sometimes as a covenant. And when inserted among the covenants in a deed, they operate as a condition, only when attended with the following circumstances: 1st. When the clause wherein they are found is a substantive one, having no dependence upon any other sentence in the deed, or rather, perhaps, not being used merely in qualification of such other sentence, but standing by itself. 2d. When it is compulsory upon the feoffee, donee, or lessee. 3d. When it proceeds from the part of the feoffor, donor, or lessor, and declares his intention, (but as to this point, see Whichcote v. Fox, Cro. Jac. 398; Cromwell's Case, 2 Rep. 72, and infra). 4th. When it is applied to the estate, or other subject matter. As to what words will constitute a condition, see Whichcote v. Fox, Cro, Jac. 398; Co. Litt. 203, b.; Englefield's Case, Moor, 307; S. C., 7 Rep. 78; Berkley v. The Earl of Pem broke, Moor, 707; S. C., Cro. Eliz. 306, 560; Browning v. Beeston, Plowd. 131.]

(2) [ A particular estate may be limited, with a condition, that, after the happening of a certain event, the person to whom the first estate is limited shall have a larger estate. Such a condition may be good and effectual, as well in relation to things which lie in grant as to things which lie in livery, and may be annexed as well to an estate-tail, which cannot be drowned, as to an estate for life or years, which may be merged by the access of a greater estate.]

(3) [It is a rule of law, that a condition, the effect of which is to defeat or determine an estate to which it is annexed, must defeat the whole of such estate; not determine it in part only, leaving it good for the residue. Jermin v. Arscot, stated by Chief Justice Anderson, in Corbet's Case, 1 Rep. 85, b., and see ibid. 86, b.; Chudleigh's Case, 1 Rep. 138, b.]

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..

I. 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, (b) on breach of which condition *it is lawful for the grantor, or his heirs, to oust him and grant it to [*153 ] another person.(c) For an office, either public or private, may 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. (d) 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. (e) (4)

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 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. (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, because their estate is determined by the breach of the condition, "that they shall not commit felony," which the law tacitly annexes to every feudal donation.

[ *154 ]

*II. An estate on condition expressed in the grant itself is where an estate is granted, either in fee-simple or otherwise, with an express qualification

(b) Litt. § 378.

(c) Ibid. § 379.

(d) Co. Litt. 233.

(e) 9 Rep. 50. (f) Co. Litt. 215.

(4) The grant of a franchise to be a corporation is always upon the implied condition that the grantees shall act up to the end or design for which they are incorporated, and any misuser of the corporate privileges will render them liable to forfeiture as for condition broken. Ang. and A. on Corp. § 774-776; People v. Bank of Niagara, 6 Cow. 196; Lehigh Bridge Co. v. Lehigh Coal Co., 4 Rawle, 9; McIntyre School v. Zanesville Canal Co., 9 Ohio, 203; People v. River Raisin and Lake Erie R. R. Co., 12 Mich. 389. So corporate franchises may be lost by non-user; but what length of non-user shall be requisite for that purpose must depend very much upon the circumstances and the character of the franchise and consequent interest the public may have in its exercise. See State v. Commercial Bauk, 10 Ohio, 535; People v. Bank of Pontiac, 12 Mich. 537; Matter of Jackson Marine Ins. Co., 4 Sandf. Ch. 559; Ward v. Sea Ins. Co., 7 Paige, 294. The state alone can take advantage of a breach of the condition, and it must be done by a proceeding instituted directly for that purpose, and not in any collateral or incidental proceeding. Commonwealth v. Union Ins. Co., 5 Mass. 230; Enfield Toll Bridge Co. v. Connecticut R. R. Co., 7 Conn. 46; Crump v. U. S. Mining Co., 7 Gratt. 352; Planter's Bank v. Bank of Alexandria, 10 Gill and J. 346; Myers v. Manhattan Bank, 20 Ohio, 283; Bank of Gallipolis v. Trimble, 6 B. Monr. 599; Smith v. Mississippi R. R. Co., 6 S. and M. 179; Cahill v. Kalamazoo M. Ins. Co., 2 Doug. Mich. 141; Vermont and Canada R. R. Co. v. Vermont Central R. R. Co., 34 Vt. 57; State v. Mississippi R. R. Co., 20 Ark. 495; Brookville T. Co v. McCarty, 8 Ind. 392; Wood v. Coosa, &c., R. R. Co., 32 Ga. 273. And the state may waive the broken condition as an individual might. Ang. and A. on Corp. § 777. As to what shall be deemed a waiver, see Commercial Bank v. State, 6 S. and M. 622; State v. Bank of Charleston, 2 McMullan, 439; People v. Kingston T. Co., 23 Wend. 193; People v. Phoenix Bank, 24 id. 431; People v. Bank of Pontiac, 12 Mich. 527.

annexed, whereby the estate granted shall either commence, be enlarged or be defeated, upon performance or breach of such qualification or condition.(g) (5) These conditions are therefore either precedent or subsequent. (6) 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. (7) 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 (h) 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 fee-simple passeth not till the hundred marks be paid. (i) But if a man grants an estate in fee-simple, reserving to hmself and his heirs a certain rent; and that if such rent be not paid at the times limited, it thall 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) (8) To this class may also be referred all base fees, and fee-simples conditional at the common law. (1) 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 (i) Co. Litt. 217.

(g) Ibid. 201. (k) Litt. § 325.

(h) Show. Parl. Cas. 83, &c.

(1) See pages 109, 110, 111.

(5) The instances of conditions which now most frequently arise in practice are those con tained in leases or agreements between lessor and lessee, and are principally conditions sub sequent, provided for in the usual clauses of re-entry in case of a breach of a particular, or any covenant in the lease, as non-payment of rent, not repairing, not insuring, not residing on the premises, or in case of an assignment, or parting with the possession, or of bankruptcy, or insolvency, &c. See the cases upon this subject, 2 Cruise Dig. 10, 11, 13; 4 Cruise, 506; Adams, Ejectm. index, Covenant; 2 Saunders, by Patteson and Williams, index, Forfeiture.] (6) [Equity will not allow any one to take advantage of a bequest over, who has himself been instrumental in causing the breach of a condition. Garrett v. Pretty, stated from Reg. Lib. in 3 Meriv. 120; Clark v. Parker, 19 Ves. 12; D'Aguilar v. Drinkwater, 2 Ves. and Bea. 225. But, it is a general rule, that where a condition is annexed by will to a devise or bequest, and no one is bound to give notice of such condition, the parties must themselves take notice and perform the condition in order to avoid a forfeiture. Chauncy v. Graydon, 2 Atk. 619; Fry v. Porter, 1 Mod. 314; Burgess v. Robinson, 3 Meriv. 9; Phillips v. Bury, Show. P. C. 50. Infancy will be no excuse, in such case, for non-performance of the condition. Bertie v. Lord Falkland, 2 Freem. 221; Lady Ann Fry's Case, 1 Ventr. 200. The application of this general rule, however, is subject to one restriction: where a condition is annexed to a devise of real estate to the testator's heir at law, there notice of the condition is necessary before he can incur a forfeiture; for, an heir at law, will be supposed to have entered and made claim by descent. not under the will. Burleton v Homfray, Ambl. 250.]

(7) There are no technical words to distinguish conditions precedent and subsequent, but whether they be the one or the other is matter of construction, and depends upon the intention of the party creating the estate. 4 Kent, 125; Rogan v. Walker, 1 Wis. 555; Burnett v. Strong, 26 Miss. 116; Finlay v. King's Lessee, 3 Pet. 346; Hotham v. East India Co., 1 T. R. 645.

(8) Van Rensselaer v. Ball, 19 N. Y. 100. So a condition that a conveyance shall be void unless within a specified time a certain sum of money is paid. Brannan v. Mesick, 10 Cal. 108. So a condition in a conveyance of land to a child that the grantee shall support the grantor in a particular manner. Willard v. Henry, 2 N. H. 120. But the condition must be something substantial; if it be merely nominal, as to pay an ear of Indian corn for a grant of land, for the first ten years if lawfully demanded, a failure to perform will be no ground of forfeiture, People v. Society, &c., 1 Paine, C. C. 652; King's Chapel v. Pelham, 9 Mass. 501. And in any case a mere stipulation in a deed that the grantee shall do or abstain from doing a particular act is not to be regarded as a condition; the law presuming that the grantor relied upon the personal responsibility of the grantee instead of any security which a condition would afford. The construction is therefore always against conditions where the language will admit of it, and the grantee will have the benefit of all doubts. Merrifield v. Cobleigh, 4 Cush. 178. And if held to be conditions, they will be strictly construed. A grant, upon condition that the land shall be used for a raceway, is not forfeited, if it is used for that purpose, because of being used for other purposes also. McKelway Seymour, 5 Dutch. 322. And a condition that a grantee shall maintain a fence, not naming his heirs or assigns, will not be broken by the neglect of his heirs after his death to maintain it. Emerson v. Simpson, 43 N. H. 475; see Gadberry v. Sheppard, 27 Miss. 202; Bradstreet v. Clark, 21 Pick. 389; Mead v. Ballard, 7 Wal. 290.

VOL. I.-55

433

this is no tenement within the statute of Westminister 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 eighth chapter: as durante viduitate, &c.; these are estates upon condition that the grantees do not marry, and the like. And, on the breach

[*155] of any of these *subsequent conditions, by the failure of these contin

gencies; 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. (9)

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 its 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 5007., and the like. (n) 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 5007.) 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 407. by the grantor, or so that the grantee continues unmarried, or provided he goes to York, &c.), (o) 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. (p) (10) 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 not a *condition: (7) because if it were a condition, then, [*156] 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; but, when it is a limitation, the estate of B determines, and that of D commences, and he may enter on the lands the instant that the failure happens. So also, if a man by his will devises land to his heir at law, on condition that ho

(9) But a condition subsequent in general restraint of marriage is void: Morley v. Rennold son, 2 Hare, 570; Williams . Cowden, 13 Mo. 211; though one imposing reasonable restraints, as that the grantee shall not marry without consent of parent, guardian or trustee, or not to a person or persons named, or not to a native of a particular country, and the like will be sustained. See Perrin v. Lyon, 9 East, 170; Daley v. Desbouverie, 2 Atk. 261. And a husband has such an interest in his wife remaining single after his death that he may make that a valid condition of a grant or devise. Lloyd v. Lloyd, 16 Jurist, 306; Dumey v. Schoffler, 24 Mo. 170; Vaughn . Lovejoy, 34 Ala. 437; Pringle v. Dunkley, 14 Sm. and M. 16; Commonwealth v. Stauffer, 10 Penn. St. 385.

(10) The material distinction between a condition and a limitation is, that a condition does not defeat the estate, though it be broken, until entry by the grantor or his heirs, while a limitation actually determines the estate without any act or ceremony whatsoever. 4 Kent, 426, 427: Proprietors, &c., v. Grant, 3 Gray, 147; Tallman v. Snow, 35 Me. 342; Lockyer v. Savage, 2 Strange, 947; 1 Washb. Real Prop. 457, 458. The right to make entry for breach of condition is not assignable separate from any reversion in the land to which the condition relates. Nicoll v. N. Y. and E. R. R. Co., 12 N. Y. 121.

The person entitled to make entry for breach of condition may waive the right to do so, and will be regarded as having done so by any act inconsistent with an intent to rely upon the forfeiture. As where a leasehold estate has become forfeited for non-payment of rent, and the lessor accepts from the tenant rent which has accrued subsequent to the breach. See Chalker v. Chalker, 1 Conn. 79; Coon v. Brickett, 2 N. H. 163; Jackson v. Allen, 3 Cow. 220; Gray v. Blanchard, 8 Pick. 284; Sharon Iron Co. v. Erie, 41 Penn. St. 349.