PART II. T. 1, CH. 7. To whom a condition may be granted. CHAPTER VII. OF CONDITIONS GENERALLY. AT the common law, a condition, or the benefit of a condition, can only be reserved to the grantor, lessor, or assignor, and his real or personal representatives, according reserved or to the nature of his estate, and not to a stranger (a). But by the stat. 8 & 9 Vict. c. 106, s. 5, "under an indenture executed after the 1st of October, 1845," "the benefit of a condition respecting any lands or tenements may be taken, although the taker thereof be not named a party to the same indenture." 278. Whether a condition may be In the case of an estate of freehold in land, a condition must be created and annexed to the estate at the time of subsequent the making of it, and not at any subsequent time. It created at a time. Taking possession binds to performance of condition. may be created by a separate deed, but such deed must be sealed and delivered at the same time with the principal deed (b). But in the case of chattels or of things execu tory, such as rents, annuities, etc., a condition may be created at a subsequent time (c). 279. Where an estate is given upon condition, the taking possession of the land to which the condition is annexed binds to the performance of the condition, even though such performance should be attended with a loss (d). 280. Where, after the covenants in a lease, there was a covenant for passage beginning with the words "Provided, nevertheless,' tion of land and providing, that, in case the lessor should at any time Condition as well as a the resump by the lessor, PART II. be desirous of having any part of the land delivered up T. 1, CH.7 to him, and of such desire should give three months' notice, then, at the expiration of such notice, the lessee did thereby covenant to surrender up, and that the lessor should take possession of such part or parts of the land as should be mentioned in the notice, he, the lessor, paying a reasonable compensation for moneys laid out in improving the condition of the land so given up, and thenceforth the rent should be reduced in proportion to the land given up; it was held, that, under this proviso, the lessor might resume all the demised land, and that it operated as a condition as well as a covenant; so that the lessor might take possession without waiting for the lessee to give up possession; and that the lessor might do so without having first paid the compensation (a). 281. operation of not allowed. A condition, as distinguished from a conditional limita- A partial tion, may abridge the subject of an estate, or it may a condition determine the whole of the estate itself, but it cannot determine it for part of the time for which it was originally to endure, and leave it good for the residue, or determine the estate as to one person, and leave it good as to another (b). 282. a repair is not "an act done or caused to Neglect to repair, not being an act done or caused to be Neglect to done, but a mere omission to do an act, is not within proviso in a lease giving power of re-entry, "if the lessee shall do, or cause to be done, any act, matter, or thing contrary to, or in breach of, any one or more of the covenants" (c). 283. executor of But if a devise is made to a person for life, he keeping Liability of the house in repair, and he leaves it out of repair at death, an action lies under the statute 3 & 4 Will. 4, his a (c) Doe d. Abdy v. Stevens, 3 B. & Ad. 299. devisee for life charged with repairs on neglect of devisee to repair. PART II. T. 1, CH. 7. Release of a condition. Stipulations not of the c. 42, s. 2, against his executor by the immediate reversioner in respect of repairs not done by the deceased within six months before his death (a). 283a. A condition may be extinguished by a release (b). 284. [It is enacted by stat. 36 & 37 Vict. c. 66, s. 25 (7), that stipulations in contracts, as to time or otherwise, which Stat. 36 & 37 would not, before the passing of this Act, have been deemed essence of contracts. Vict. c. 66, 66 8. 25 (7). The to be or have become of the essence of such contracts in a Supreme Court of Court of Equity, shall receive in all Courts the same construction and effect as they would have heretofore received in equity."] 284a (a) Woodhouse v. Walker, L. R. 5 (b) 2 Cruise T. 13, c. 2. § 59. Q. B. D. 404, : TITLE II. OF FREEHOLD, AS DISTINGUISHED FROM COPYHOLD INTERESTS. TITLE 2. Tenure ALL the landed property of the kingdom is supposed to be PART II. granted by, and holden of, some superior lord, in consideration of certain services to be rendered to him by the explained. possessor of such property. The thing holden is therefore styled a tenement, the possessors thereof tenants, and the manner of their possession a tenure. And all the land in the kingdom is supposed to be holden of the Sovereign, who is styled the lord paramount, or above all. But it is frequently held, or supposed to be held, immediately of the tenants of the Crown, and only mediately, through them, of the Crown; for the King's tenants frequently granted out portions of their lands to other persons, and thereby became also lords with respect to those other persons, as they themselves were still tenants with respect to the King, and thus, partaking of a middle nature, were called mesne or middle lords (a). 285. and copy Definition Things real are either of freehold or of copyhold tenure. Freehold Things real of freehold tenure are those hereditaments hold. which are capable of being conveyed and assured by, and of things are held under, the ordinary deeds of conveyance and hold tenure. assurance (b). 286. real of free kinds of freehold tenures. Hereditaments of freehold tenure, which are usually Different called freeholds, are, 1. Of common or ordinary socage tenure, which is the tenure whereby the generality of Common freeholds are held. 2. Of gavelkind tenure, which pre- Gavelkind. vails in the county of Kent, and also exists in some other socage, (a) 2 Bl. Com. 59. (b) 2 Bl. Com. 100, 101. TITLE 2. Burgage. Grand serjeanty. PART II. parts of the kingdom. 3. Of burgage tenure, by which houses, or lands which were formerly the site of houses, in some ancient boroughs, are held. 4. Of grand serjeanty tenure, whereby lands are holden of the Crown in consideration of rendering to the Sovereign some personal service. 5. Of petit serjeanty tenure, whereby lands are holden of the Crown in consideration of rendering to the Sovereign some small implement of war. 6. Of frankalmoign tenure, a spiritual tenure by which the religious houses were held, and by which the parochial clergy, together with many ecclesiastical corporations, now hold their lands (a). 287. Petit serjeanty. Frankalmoign. Services. The characteristic of all these tenures, except the last, is the rendering of services which are both honourable and certain; and on this account they are all included in the applied to general term of socage tenure, which signifies a tenure by The term 46 socage different kinds of free tenures. Tenure of allotments. Reuts. Relief. services of an honourable and definite kind, and sometimes, though improperly, in the term free and common socage tenure, as opposed to other tenures in which the services were either menial or uncertain (b). 288. The tenure of an allotment under an Inclosure Act, in the absence of any provision to the contrary in the Act, is always common socage tenure, whatever may be the tenure of the commoner's estate (c). 289. One of the most usual kinds of services is a rent; and wherever lands in fee simple are held by a rent, there is due to the lord, on the death of a tenant, one year's rent, which is called a relief, and is one of the incidents to socage tenure (d). 290. (a) 2 Bl. Com. 6; 1 Cruise D. Prelim. Diss. c. 3. (b) 2 Bl. Com. 79, 81. (c) 1 Jarm. & Byth. by Sweet, 75; Burton, § 1258, n.; Paine Ryder, 24 Beav. 151. (d) 2 Bl. Com. 86, 87. |