T. 1, CH. 3. limit the general terms of such a condition to an assent to PART II. one marriage only (a). 180. of consent, strued as in only. It is conceived that when a condition requiring the Conditions consent to a marriage is precedent, the consent must be when conobtained, whether the legacy is limited over or not (b). terrorem But, when there is no bequest over upon non-compliance with a condition subsequent requiring consent to marriage, the legacy is treated as an absolute legacy, the condition being regarded as a mere declaration in terrorem (c). 181. consent to a Where gifts and legacies. are bestowed on persons, on Refusal of condition that they shall marry with the consent of marriage. parents, guardians, or other confidential persons, Courts of Equity will not suffer the manifest object of the condition to be defeated by the fraudulent, corrupt, or unconscientious refusal of the parties whose consent is required to the marriage (d). 182. non-fulfil ment of a rent or condition, precedent When the vesting of an interest in real or personal Effect of estate is made to depend upon the condition of one event happening (whether the condition is precedent or mixed), and a different event happens, the interest which is to arise (if it is not a mere alternative interest, which will take effect on failure of the prior limitation generally) fails altogether, however plain the apparent intention to the contrary may be, unless such intention is sufficiently expressed by, or necessarily implied in, other words in the instrument. And, if such interest was to arise by way of conditional limitation, in defeasance of a prior interest, such prior interest then becomes absolute and indefeasible (e). 183. A condition may be excused, 1. By the refusal, except Condition in certain cases, of the person to whom it is to be performed, (a) 1 Rop. Leg. by White, 820. (b) 1 Rop. Leg. by White, 827. (c) Ibid. (d) Story's Eq. Jur. 257; 1 Rop. Leg. by White, 807. (e) Smith's Executory Interests annexed to Fearne, § 688--9 dispensed with. T. 1, CH. 3. PART II, when performance is tendered. 2. By his absence in those cases where his presence is necessary for the performance of it. 3. By his obstructing or preventing the performance of it. 4. By his neglecting to do the first act, if it is incumbent on him to do it (a). 5. By an act by which the grantor or testator who imposed the condition subsequently renders the performance of it impossible (b). 184. Restriction of effect of licence to alien. By the old law a condition once dispensed with, in whole or in part, was dispensed with for ever, and as to all the property; for a condition could not be apportioned, except by act of law. Thus, if a lease were made for years, on condition that the lessee or his assigns should not alien without the licence of the lessor, and the lessor licensed the lessee alone to alien, or licensed him to alien a part of the land, or licensed him to alien all the land for a time; or if the lease was to three, on such a condition, and the lessor licensed one of them to alien; in all these cases, the condition was gone for ever (c). But the neglect of the lessor to avail himself of the forfeiture by entry, and his subsequent acceptance of rent, have not this effect, but amount simply to a confirmation of the first alienation (d). 185. By the stat. 22 & 23 Vict. c. 35, "Where any licence to do any act which without such licence would create a forfeiture, or give a right to re-enter, under a condition or power reserved in any lease heretofore granted or to be hereafter granted, shall at any time after the passing of this Act be given to any lessee or his assigns, every such licence shall, unless otherwise expressed, extend only to the permission ́actually given, or to any specific breach of (a) Co. Litt. 207 a, n. 1: 209 a ; 2 Cruise T 13. c. 2, § 25. (b) Walker v. Walker, 2 D. F. & J. 255; Yates v. University of London, L. R. 8 Ch. Ap. 454; affirmed on appeal, L. R. 7 H. L. 438. (c) 1 Pres. Shep. T. 145, n. (61) 159; Co. Litt. 202 b, n. 2; 2 Cruise T. 13, c. 1, § 38. (d) Burton, § 853. T. 1, CH. 3. operation of licences, any proviso or covenant made or to be made, or to the PART II. actual assignment, under-lease, or other matter thereby specially authorised to be done, but not so as to prevent any proceeding for any subsequent breach (unless otherwise specified in such licence); and all rights under covenants and powers of forfeiture and re-entry in the lease contained shall remain in full force and virtue, and shall be available as against any subsequent breach of covenant or condition, assignment, under-lease, or other matter not specifically authorised or made dispunishable by such licence, in the same manner as if no such licence had been given; and the condition or right of re-entry shall be and remain in all respects as if such licence had not been given, except in respect of the particular matter authorised to be done" (s. 1). And where in any lease heretofore Restricted granted or to be hereafter granted there is or shall be a partial power or condition of re-entry on assigning or underletting or doing any other specified act without licence, and a licence at any time after the passing of this Act shall be given to one of several lessees or co-owners to assign or underlet his share or interest, or to do any other act prohibited to be done without licence, or shall be given to any lessee or owner, or any one of several lessees or owners, to assign or underlet part only of the property, or to do any other such act as aforesaid in respect of part only of such property, such licence shall not operate to destroy or extinguish the right of re-entry in case of any breach of the covenant or condition by the co-lessee or co-lessees, or owner or owners, of the other shares or interests in the property, or by the lessee or owner of the rest of the property (as the case may be) over or in respect of such shares or interests or remaining property, but such right of re-entry shall remain in full force over or in respect of the shares or interests or property not the subject of such licence" (s. 2). And by the stat. 23 & 24 Vict. c. 38, T. 1, CH. 3. Restriction waiver, PART II. "Where any actual waiver of the benefit of any covenant or condition in any lease on the part of any lessor, or of effect of his heirs, executors, administrators, or assigns, shall be proved to have taken place after the passing of this Act in any one particular instance, such actual waiver shall not be assumed or deemed to extend to any instance of any breach of covenant or condition other than that to which such waiver shall specially relate, nor to be a general waiver of the benefit of any such covenant or condition, unless an intention to that effect shall appear (s. 6). 186. Relief against forfeiture. Compulsory alienations, as upon bankruptcy, are not within a mere general prohibition of alienation (a). 187. Equity will interpose to prevent a forfeiture upon non-performance of a condition at or within a certain time, where the case admits of compensation being made for such non-performance (b). Thus, where there is no gift over or substituted disposition in the event of non-compliance with the testator's injunction, and that injunction relates only to the payment of money, equity will relieve against forfeiture, on subsequent payment of principal, interest, and costs (c). [And with reference to restrictions on and relief against forfeiture of leases, see infra, par. 1553 a.] 188. (a) Burton, § 854. (b) 2 Cruise, T. 13, c. 2, § 29, 34; Co. Litt. 237 a, n. 1. (c) 11 Jarm. & Byth. by Sweet, 900 (a); Barnardiston v. Pane, 2 Vern. 366; Grimstone v. Bruce, Id. 492. CHAPTER IV. OF TAKING ADVANTAGE OF THE BREACH OF CONDITIONS. T. 1, CH. 4. Who may take advan condition. It is a rule of the common law, that no one can take PART II. advantage by entry of the breach of a condition expressed, but p rties and privies in right and representation; as tage of a heirs of natural persons, as regards real estate; executors, or administrators of natural persons, as regards chattel interests; and the successors of bodies politic; unless the effect of the condition is not merely to give a right of entry, but to render the estate ipso facto void. So that privies and assignees in law, as lords by escheat and persons in remainder, cannot enter for an express condition broken, where it does not ipso facto avoid the estate (a). Nor, by the common law, could grantees and assignees of the reversion. But by stat. 32 Hen. 8, c. 34, grantees and assignees of the reversion may enter for breach in their time of conditions for payment of rent or performance of some act beneficial to the estate, but not of collateral conditions (b). And, by the same statute, a grantee of part. of the estate of the reversion may take advantage of a condition (c). But a grantee of part of the land in which the reversion subsists could not; because a condition, being entire, could not be apportioned by the act of the grantor, although it may be apportioned by act of law, or by the wrongful act of a lessee (d). 189. (a) 2 Cruise T. 13, c. 2, § 44, 45; Co. Litt. 214 a, b; 215 a, b; 1 Pres. Shep. T. 149; Burton, § 856. (b) 2 Cruise T. 13, c. 2, § 48, 49; Co. Litt, 215 a, b; 1 Pres. Shep. T. 149, 151-3; Burton, § 856. (c) 2 Cruise T. 13, c. 2, § 49; Co. Litt. 215 a. (d) Id., § 56, 57; Co. Litt. 215 a. |