With respect to conditions subsequent a less rigorous rule prevails. If such condition be impossible at the time it was made, or becomes so afterwards, or it be defeated by the other party, the estate is absolute. (1 Inst. 206 a, 208 b.)

If it becomes impossible by the act of the grantor, the grant becomes single. (The United States v. Arredondo, 6 Peters, 745, per Marshall, Ch. J. Whitney v. Spencer, 4 Cowen, 39.)

If there be a condition in a lease against the right of the lessee or his assigns to alien during the term, without the consent in writing of the lessor, it has been held that a license by the lessor to the lessee to alien, operated not merely as a dispensation in respect to such lessee, but determined the whole condition. (Dumpor's case, 4 Coke, 119 b.) Though this case has sometimes been spoken of in terms of disfavor, it has been uniformly followed, and is still the law. (Brummell v. Macpherson, 14 Ves. 173, 175. Dakin v. Williams, 17 Wend. 457.) The reasons given for it, as abridged by the chancellor in the last cited case, are that the license gave to the lessee the power to convey an absolute interest, free from the restraint of the condition, and the assignee taking that interest, held absolute and discharged from the restraint; that the lessors could not dispense with an alienation at one time, and the estate be subject to the condition afterwards; and that as a dispensation of one alienation it operated as a dispensation to all others; and the same as to the persons; for if the lessors dispense with one, all others were at liberty, and therefore the word assigns being mentioned in the condition made no difference.

In order that the license or consent may entirely discharge the condition or proviso, it must be paramount to the terms of the proviso; if the consent be required to be in writing, a parol license will not be either a present or future dispensation of the condition. (Roe v. Harrison, 2 T. R. 425.)

If the condition be that the "lessee or his executors or administrators shall not set, let or assign over the whole or part of the premises," the condition applies to them as well as to the lessee, and therefore on the death of the latter, if his administrator underlets a part of the premises without a consent in writing from the lessor, he incurs a forfeiture. A parol license will not be sufficient. (Id. Braddick v. Thompson, 8 East, 346. Blake's case, 6 Co. 43 b. 3 Taunton, 73. Jackson v. Crysler, 1 John. Cas. 125.)

And this is the same in equity as well as at law. But if a parol

license be used as a snare, and under circumstances which amount to a fraud, equity will grant relief. (Richardson v. Evans, 3 Madd. R. 218.) And no man can take advantage of a condition, who has himself prevented or dispensed with its performance. (Williams v. The Bank of the United States, 2 Peters, 102, per Washington, J.)

Independently of an express consent in writing, according to the terms of the condition, there are other acts of the lessor or his heirs, which operate as a waiver of the forfeiture after a breach has been incurred. This may be done by the acceptance of rent which accrued after the forfeiture, with a knowledge on the part of the landlord that the condition had been previously broken. (Roe v. Harrison, supra. Jackson v. Allen, 3 Cowen, 230. Doe v. Bliss, 4 Taunton, 735. Doe v. Banks, 4 B. & A. 401.) the principle that the lessor by receiving the rent, to have continuance, as Lord Coke expresses it. So also if the landlord brings an action to recover the rent, and while distresses were lawful, if he distrained for the rent, he could not enter for the condition broken prior to the accruing of that rent. He may, however, receive the rent due before the forfeiture, and if it be received after the forfeiture it is no waiver of it. But receiving rent which accrued after the forfeiture, with a knowledge thereof, is a waiver of it. (Jackson v. Allen, supra, and the other

cases there cited.)

It proceeds upon assumes the lease (Co. Litt. 211 b.)

If the forfeiture be once waived, it cannot afterwards be claimed. (Chalker v. Chalker, 1 Conn. 79.)

With regard to the mode of the landlord's taking advantage of a breach of a condition subsequent, the former rule required that the landlord must enter if he could; if he could not enter he was required to make claim; for a freehold, whether it lie in grant or livery, could not cease by condition, without entry or claim. (Co. Litt. 218.) But in this state it was held, at an early day, that an actual entry in an action of ejectment was not necessary in any case, except to avoid a fine. (Jackson v. Crysler, 1 John. Cas. 125, decided in 1799.) Fines and recoveries have since been abolished, (2 R. S. 343, § 24;) and the civil action provided by the code of procedure has become the substitute for the action of ejectment. There does not seem to be any case in which an actual entry according to the ancient sense of that term, is now necessary. The bringing of an action, with or without previous demand, or notice, as the case may

require, is a sufficient assertion of the landlord's intention to enforce his right for the condition broken.

The consequence of a recovery for a condition broken is to reinvest the grantor or lessor with his former estate as he enjoyed it before. He thus avoids all mesne charges and incumbrances imposed upon the estate by the tenant or those claiming under him. (1 Inst. 202 a.)

There are some acts, it is said, which may excuse the non-performance of a condition subsequent. If it was possible at the time of making it, and it becomes impossible by the act of God afterwards, the performance is excused and the estate remains unaffected by it. (Merrill v. Emery, 10 Pick. 507.) In The People v. Manning, (8 Cowen, 297,) the principle was applied to recognizance, the performance of the condition of which had become impossible by the sickness and death of the cognizor. (Co. Litt. 206 a.)

In like manner, if it becomes impossible by the act of the law or of the other party, performance of it is excused. (Same cases.)

CHAPTER V.

OF THE LAW OF MORTGAGES.

SECTION I.

Of the nature of Mortgages.

A mortgage may be well described to be a conveyance of lands by a debtor to his creditor, as a security for the repayment of a sum of money; with a proviso that such conveyance shall be void on payment of the money secured by it, with interest, on a day therein expressed. In this state the most usual form of a mortgage is a conveyance in fee of the lands intended to be charged with the debt or obligation of the debtor, who is called the mortgagor, to the creditor, who is called the mortgagee, with a proviso or condition that the estate shall be void on the payment of the sum of money therein expressed with interest, or doing some other act according to the terms of a bond or other instrument executed by the mortgagor to the mortgagee and therein described. (Cooper v. Whitney, 3 Hill, 95. Baker v. Thrasher, 4 Denio, 495.) It usually contains a power authorizing the mortgagee, his executors, administrators or assigns, in case of any default in paying the money secured

by it, or of any part thereof, to sell the premises described, with their appurtenances, in the manner prescribed by law, and out of the money arising on such sale, to retain the principal, interest and costs, and to render the overplus to the mortgagor, his heirs or assigns.

The power of sale, when given in a mortgage, or other conveyance intended to secure the payment of money, is deemed a part of the security, and vests in, and may be executed by any person who, by assignment or otherwise, becomes entitled to the money so secured to be paid. (1 R. S. 737, § 133.)

A mortgage may be made either of an estate in fee or for years. In this state it is usually granted in fee. If, however, the mortgagor has only a less estate, as an estate for life, the mortgage will be effectual for the life of the mortgagor, though void for the excess. (Sinclair v. Jackson, 8 Cowen, 543. 1 R. S. 739, § 143.)

It is also enacted that no mortgage shall be construed as implyiny a covenant for the payment of the sum intended to be secured. (Id. 738, § 139.)

Hence it follows, that if there be no express covenant in the mortgage, and no bond or other instrument to secure such payment shall have been given, the remedies of the mortgagee are confimed to the lands mentioned in the mortgage. (Id.)

Nor is it material in what form the agreement is expressed. Where the mortgagor acknowledged his indebtedness to another in a certain sum, and declared that for the purpose of securing the payment thereof, he transferred the property mentioned, it was held that the creditor, on default of payment, was not bound to resort, in the first instance, to the property, but might bring an action for the sum acknowledged to be due. Such language was held equivalent to an express covenant. (Elder v. Rouse, 15 Wend. 218.)

It is not essential to a mortgage that it should contain a covenant to pay money, or to do any other act, or that it should embrace in it a power of sale. A deed in fee, with a condition annexed that if the grantor should pay certain legacies charged upon the lands, sold and conveyed by the grantor to the grantee, then the deed to be void, was held to be a mortgage. (Steward v. Hutchins, 13 Wend. 485; affirmed 6 Hill, 143.)

In such a case, under the statute of New York, the mortgagee has no remedy by ejectment in a court of law, but is confined to his remedy in equity. (2 R. S. 312, § 57.) Indeed, the statute has wisely

taken away the remedy by ejectment from the mortgagor or his assigns or representatives, in all cases.

It is usual to insert the defeasance in the same instrument, and such is the most advisable practice. But it is not indispensable to the validity of the instrument. Where land was conveyed absolutely, and the grantee, by a separate instrument or defeasance, covenanted to reconvey to the grantor, on his paying a sum of money, the transaction was held to amount only to a mortgage. (Peterson v. Clarke, 15 John. 205. Brown v. Dean, 3 Wend. 208. Dunham 15 John. 555.)

v. Day, 2 John. Ch. 182. There is a distinction between a conditional sale and a mortgage. If the debt remains it is a mortgage; but if it be extinguished by mutual agreement, express or fairly implied, the instrument is not a mortgage. (Eckford's Ex'r v. De Kay, 8 Paige, 89; affirmed 26 Wend. 37. Robinson v. Cropsey, 2 Ed. V. Ch. Rep. 138.)

Though conditional sales between debtor and creditor are to be scanned with jealousy, they may still be upheld if fairly made. Such contracts are lawful in themselves, and it is only when an oppressive use is made of the advantage which a creditor has over his debtor that the courts are inclined to treat the transaction as a mortgage. In one case where a creditor, whose debt was about equal to the value of the land, received a conveyance of it from the debtor in discharge of the debt, and gave the grantor a stipulation that if he would find a purchaser in a year he should have all the purchase money beyond the debt and interest, the transaction was held not to be a mortgage. (Holmes v. Grant, 8 Paige, 243. Cooper v. Hill, 3 Hill, 95.) So, also, in a later case, where the grantor conveyed lands to the grantee by an absolute deed, and the grantee on the same day executed a covenant to the grantor, reciting that the conveyance was made for the purpose of paying a sum of money which was specified, and covenanting that he would not convey the premises within one year without the assent of the grantor; and if the grantor, within that time, should find a purchaser, the grantee would convey to such purchaser, on receiving the amount with interest, for which the land had been conveyed to him; and that in case such sale should not be made within the year, it should then be submitted to certain persons named to determine what additional sum the grantee should pay for the land, which sum the grantee covenanted to pay; it was held by the supreme court that this transaction did not amount to a mortgage. (Baker v. Thrasher, 4 Denio, 493.) The relation of