102

LIMITATION
COVENANT.

ure cannot be taken of or enforced against a corporation collaterally or incidentally, or in any other mode than by a direct proceeding for that purpose against the corporation, so that it may have an opportunity to answer. And the government creating the corporation can alone institute the proceeding. (A. & A. on Corp. 746-747. Bank of Niagara v. Johnson, 9 Wend. 645. The Peo•ple v. Manhattan Co. 9 id. 351. Nicoll v. The N. Y. and Erie R. R. 2 Kernan, 121.)

It was on this principle of implied conditions that the doctrine of forfeiture was extended to tenants for life and others, for acts done by them inconsistent with the nature of their estate. The doctrine itself was of feudal origin, and has been subverted in this state by the revised statutes. (1 R. S. 739, § 145.) The rights of all parties are sufficiently protected, when the tenant assumes to convey a larger estate than he has, by making the conveyance effectual to transfer to the grantee whatever is expressed in the grant, to the extent of the tenant's interest in the subject matter, and void for the

excess.

There is s distinction between a condition and a limitation. A limitation is when the duration of the estate is prescribed in the grant; as where land is granted to a man so long as he remains in a particular place, or while he remains unmarried, and the like. In such cases the estate determines when the contingency happens. (Mary Partington's case, 10 Co. 41 a.) Coke, in the case last cited, (at pages 41 and 42,) gives the words usually employed in creating a limitation, viz. quamdiu, dum modo, dum, quosque, durante; and for creating a condition, viz. sub conditione, ita quod, si contingat, proviso, &c.

There is also a material difference between a condition and a covenant, notwithstanding they are both frequently created by the same form of words. The distinction between them is illustrated by the case put by Coke, (1 Inst. 203 b.) When the proviso comes alone it is a condition; but he says if a man by indenture lets lands for years, "provided always and it is covenanted and agreed between the said parties, that the lessee should not alien;" this is a condition by force of the proviso, and a covenant by force of the other words. In case the condition is broken, the grantor may elect to which he will resort, for he cannot have both, as they are incompatible remedies. In Nicoll v. The New York and Erie Rail Road

Co. (supra,) Gardiner, speaking of the distinction between a limitation and a condition, says, the first determines the estate when the period of limitation arrives, without entry or claim; the last does not defeat the estate until entry by the grantor or his heirs, and upon entry the grantor is in as of his former estate.

Conditions can only be reserved to the grantor or lessor, or their heirs, but not to a stranger. (1 Inst. 214.) They must be created and annexed to the estate at the time of the making of the deed. (Jackson v. Topping, 1 Wend. 388. 2 Cruise's Dig. tit. Condition, § 15. Spalding v. Hallenbeck, 30 Barb. 292.)

This is the case

Conditions are sometimes void in their creation. when they are-1, impossible; or 2, require the performance of what is contrary to the divine or municipal law; or 3, repugnant to the nature of the estate.

In the case of impossible conditions, if they be precedent conditions and an estate be granted to take effect on their performance, it is quite clear that no estate can arise. A feoffment to A. upon condition that he goes to Rome on a day, is absolute, for the condition is repugnant to the feoffment. (Bac. Abr. tit. Condition.)

Conditions which require the performance of what is contrary to the divine or municipal law, whether the thing be malum in se or malum prohibitum, or which require the party to omit something that is a duty, or to encourage such crimes or omissions, will always be defeated by the law. Questions of this kind more frequently arise upon bonds than upon deeds or leases; but the principle is the same in all cases.

Conditions repugnant to the estate to which they are annexed, are void in their creation. Thus a condition upon a feoffment in fee that the feoffee should not alien, is void because it is repugnant to the estate granted. In like manner, on a grant of a fee that the wife of the grantee should not be endowed, or the husband be tenant by the curtesy, is void for the like reason. (6 Co. 41 a.) Restraints upon alienation can, at common law, only be imposed by persons having at least a reversion, or a possibility of reversion therein. As a consequence of this doctrine, the court of appeals of New York held that where lands were leased in fee, the grantor could not annex a condition in restraint of the right of alienation by the lessee. (De Peyster v. Michael, 2 Selden, 467.) This was one of the cases in which the reservation of quarter sales and the condition and right of re-entry, upon default of their payment, were held to be void,

and the ground of their invalidity was stated to be their repugnance to the estate granted-viz. an estate in fee simple. It was conceded that in estates for life or years, conditions in restraint of alienation were lawful.*

The courts lean against forfeitures. In Jackson v. Harrison, (17 John. 66,) the lease contained the condition that if the lessee, his executors, &c. should assign over, or otherwise part with, the lease or the premises demised, or any part thereof, without the consent in writing of the lessor, &c. it should be lawful for the lessor, &c. to reenter, and it contained a further clause of forfeiture at the election of the lessor, on the lessee's violating that and other covenants. The lease was for the term of seven years. The lessee underlet a part of the premises for a portion of the time the lease had to run, and this was claimed by the landlord to be a cause of forfeiture of the whole lease. But the court held that no forfeiture was incurred by such underletting, as no assignment or parting with any portion of the premises for a less period than the whole term would work a forfeiture of the estate.

So in the case of a lease for lives, with a condition that the lessees should not sell or dispose of, or assign their estate in the demised premises, without the permission in writing of the lessor or his heirs, and if they did the estate should be void, it was held that a lease by the lessees of a part of the premises for twenty years was no breach of the condition. (Jackson v. Silvernail, 15 John. 278. Same v. Brownson, 7 id. 227.)

The alienation of the tenant to work a forfeiture must in general be the voluntary act of the tenant. Where in a lease of twenty-one years the landlord reserved a right of pre-emption and the quarter sales, which were protected by a condition and forfeiture of the estate in case the tenant failed to perform the covenants on his part, it was held that a sale of the premises under a judgment confessed by the tenant was no forfeiture of the lease, unless the judgment was fraudulently confessed, with a view to defeat the lessor's reservation. (Jackson v. Corless, 7 John. 531. Doe v. Carter, 8 Term Rep. 57,

*The word lease, in the English books, is always for a less time than the lessor hath in the premises. (2 Bl. Com.317.) In this state grants in fee reserving rent have long been and are recognized by our statutes. They are usually denominated durable leases. We have in this, as in some other instances, given an enlarged meaning to a term well known to the common law. I have generally spoken of these conveyances as leases.

300. Jackson v. Kipp, 3 Wend. 230. Same v. Silvernail, 15 John. 278.)

But while the case of a landlord seeking to enforce a forfeiture against his tenant is stricti juris, the tenant cannot avoid the effect of his own contract by fraud. If, therefore, he colludes with a stranger, desirous of obtaining possession of the lease, and confesses a judgment for the express purpose of enabling him to sell the premises through the medium of an execution, the purchaser with notice cannot retain the property against the landlord. (Doe v. Carter, 8 T. R. 300.)

Conditions are also precedent or subsequent. A condition precedent must be performed before the estate can vest. A condition subsequent does not prevent the vesting of an estate, but may enlarge or defeat it after it has been created. (Litt. § 325.)

No precise technical words are required in a deed to make a stipulation a condition precedent or subsequent; neither does it depend on the circumstance whether the clause is placed prior or posterior in the deed, so that it operates as a proviso or a covenant; for the same words have been construed to operate as either the one or the other, according to the nature of the transaction, and the intention of the parties. (Per Paige, J. in Parmelee v. The Oswego and Syracuse R. R. Co., 2 Seld. 80.) The precedency of the conditions must depend on the order of time in which the intent of the transaction requires their performance. The rules for finding the intent of the parties are the same as those in regard to covenants. (Id. Nicoll v. N. Y. and Erie R. R. Co. 2 Kernan, 121.)

There is, at common law, a difference in the effect between the breach of a condition annexed to an estate of freehold, and the like breach of a condition in an estate for years. As a freehold estate could not be created without livery, so it could not be defeated without entry. But where a condition annexed to an estate for years is broken, the estate ipso facto ceases as soon as the condition is broken, without an entry; except where the lease provides expressly, that the landlord shall re-enter in case of a breach of the condition. In the first case the lease is absolutely void on the breach of the condition; and in the last, voidable only at the election of the landlord. (Stuyvesant v. Davis, 9 Paige, 431.)

Conditions subsequent are not favored in the law and are construed strictly, because they tend to destroy estates. They can only be reserved for the benefit of the grantor or his heirs, and no others

can take advantage of a breach of them. A mere failure to perform a condition subsequent does not devest the estate. The grantor or his heirs may not choose to take advantage of the breach, and until they do so, by entry, or what is now made by statute its equivalent, there is no forfeiture of the estate. This was the common law, and it has not been altered by statute so as to give a right of entry to an assignee in any instance not coupled with a reversionary interest as in the cases of estates for years and for life, except in cases of leases, or rather grants in fee reserving rent. (Per Parker, J. in Nicoll v. The New York and Erie Rail Road Co. 2 Kern. 131. 1 R. S. 748, §§ 23, 24, 25.)

These principles were applied by the court of appeals in the last cited case, where, by a conveyance to a rail road corporation, land was granted upon the condition that it should construct its road thereon within a limited time. The company having failed to perform, it was held that such failure did not devest the title; that the condition was subsequent; that the title vested in the corporation in fee on the execution of the deed, and could not be devested but by entry, or what is made equivalent to it by the statute, by the grantor or his heirs for breach of the condition to perfect the estate. This right of entry, it was said, is not a reversion, or an estate in land, and will not pass by assignment or conveyance of the premises held subject to the condition. (Nicoll v. The N. Y. and Erie R. R. Co. 2 Kernan, 121.)

The principle that failing to perform a condition subsequent does not per se devest an estate, or perfect a right, was recognized by the supreme court of the United States in the claims growing out of the acquisition of California. This was one of the questions in Fremont's case. (Fremont v. United States, 17 How. 542.) And the same principle was applied in various other cases. (United States v. Reading, 18 id. 1.)

With regard to the performance of conditions, and what, if any thing, will excuse from performance, there is a manifest diversity between conditions precedent and conditions subsequent. A precedent condition must be performed before the estate will vest. Even though the performance of it becomes impossible by the act of God, no estate can vest. (Vanhorne v. Dorrance, 2 Dall. 317. 19 John. 71, 72, per Spencer, Ch. J. Taylor v. Bullen, 6 Cowen, 627, per Savage, Ch. J.)