modified in any manner consistently with the rules
against perpetuities.]

See more in Use, numb. 7 (34).

(34) It may not be improper to subjoin some account of the several acts of parliament for registering deeds and wills.

The first statute in order of time is that of 2 & 3 Ann, c. 4. "For the public register"ing of all deeds, conveyances, and wills, that shall be made of any honors, manors, “lands, or hereditaments within the West Riding of the county of York, after the 29th of "September, 1704," it enacts, that a memorial of all deeds and conveyances which shall be made after the 29th of September, 1704, and of all wills and devises in writing, where the devisor or testator shall die after the said 29th of September, whereby any honors, manors, &c. in the said West Riding, may be any way affected in law or equity, may, at the election of the parties concerned, be registered in manner directed by that act; and that every deed or conveyance, (that shall, after any memorial is so registered, be made of the honor, manor, &c. comprised in any such memorial,) [these words are inserted by mistake,] shall be adjudged fraudulent and void against any subsequent purchaser or mortgagee for valuable consideration, unless such memorial thereof shall be registered as by the act is directed, before the registering of the memorial of the deed or conveyance, under which such subsequent purchaser or mortgagee shall claim; and that every devise by will of the honors, &c. contained in any memorial so registered, that shall be made and published after the registering of such memorial, shall be adjudged fraudulent and void against any subsequent purchaser or mortgagee for valuable consideration, unless a memorial of such will be registered in such manner as by the act is directed. The act then establishes an office for the register; directs the mode and time of his election by the freeholders, and of a successor on his death, forfeiture, or surrender of the office; the mode and form of the memorial, the ceremonials to be observed thereon, and the fees to be paid for it; and inflicts penalties on the register in case of neglect. The act does not extend to any copyhold estates, nor to any leases at a rack-rent, nor to any lease not exceeding twenty-one years, where the actual possession and occupation goeth along with the lease. It directs that memorials of wills registered within six months after the death of every respective testator, dying within the kingdom of England, dominion of Wales, or town of Berwick-upon-Tweed, or within three years after the death of every respective testator dying in parts beyond the seas, shall be as valid against subsequent purchasers, as if the same had been registered immediately after the testator's death.

The statute of 5 Ann, c. 18, is for inrolment of bargains and sales within the West Riding of the county of York, in the register-office there, and for making the said register more effectual.

The statute of 6 Ann, c. 35, establishes a register for the East Riding of the county of York, and for the town and county of Kingston-upon-Hull, for all deeds, and wills, of lands therein, which shall be made and executed after the 29th of September, 1708, on the same plan, and under nearly the same regulations, as in the before-mentioned act; and this act directs that all the clauses and provisions contained in it, which are not provided for or contained in the said acts of 2 & 3 Ann, c. 4, and 5 Ann, c. 18, shall extend to lands in the West Riding, as effectually as if they had been inserted in the said acts for establishing the register in the West Riding.

The statute 7 Ann, c. 20, establishes in like manner a register for the county of Middleser, after the 29th of September, 1709, with an exception not only of copyhold estates, leases at a rack-rent, and leases not exceeding twenty-one years, as in the several acts before mentioned; but with an additional exception of the chambers in Serjeant's Inn, the Inns of Court, or Inns of Chancery.

The statute of 8 Geo. 2, c. 6, establishes in like manner a register for the North Riding of the county of York, after the 29th day of September, 1736.

These acts, except 5 Ann, c. 18, appear at length in 1 vol. Wood's Convey. p. 452 to 480. [3 Newnham, p. 490.]

For some general observations on the act of 7 Ann, c. 20, clear directions as to the mode of registering deeds and wills, and various precedents of memorials, see Rigg's Instructions for the Registering of Deeds, &c. and Horseman's Prec. in Conv. 2 vol. 821.

And it is now time that we come to the other parts of a deed, and first to a condition.

Mr. Justice Blackstone, in 2 vol. of his Commentary, p. 343, treating of these acts, says, "but however plausible these provisions may appear in theory, it hath been doubted by very "competent judges, whether more disputes have not arisen in those counties (where registers are established) by the inattention and omissions of parties, than prevented by the "use of registers." [And now the register is become so multifarious, that it is next to impossible to search the register with any reasonable chance of tracing a title. The register renders it necessary to preserve deeds, which in the absence of a register might be discarded, as having answered a mere temporary purpose.]

By these statutes there is not any time limited for registering deeds; it is therefore obvious from an inspection of the acts, how necessary it is, that deeds should be registered immediately on their being executed; to enforce this the more strongly, it may not be useless to consider, if a subsequent conveyance or mortgage should be executed for a valuable consideration, and from an almost momentary inattention or delay of the first vendee, or mortgagee, in not immediately registering, the second vendee or mortgagee should register first; whether, in such case, the first vendee, or mortgagee, doth not thereby become in a worse situation, than he would have been by law, in case the registering act had not been made. [He certainly will, for the act takes away his priority.]

For the operation and construction of the registering acts, see the cases of Cheval v. Nichols. [An annuity was not inrolled under the Register Acts: the purchaser had notice and relief against him, so upon notice to the purchaser's agent, Sheldon v. Cox, Ambl. 624. Le Neve v. Le Neve, 3 Atk. 646. Blades v. Blades, 1 Eq. Abr. 358. Even a judgment, though not registered, is an encumbrance against a purchaser.] 1 Str. 664. Honeycomb v. Waldron, 2 Str. 1064. [Registry of the assignment of a lease, is no registry of the lease.] Forbes v. Deniston, 2 Brown's Parl. Ca. 425. Hine v. Dodd, 2 Atk. 275. [To intitle an incumbrancer to hold his priority, notwithstanding the omission to register, there must be apparent fraud, or clear and undoubted notice. Suspicion of notice is insufficient.] Le Neve v. Le Neve, 3 Atk. 646; and S. C. 1 Ves. 64. [13 Vin. Abr. tit. Fraud, (L. a.) 550. Blades v. Blades, 1 Eq. Cas. Abr. 358. Sheldon v. Cox, Ambl. 624. Drummond and another, Cowp. 712. Davis v. Strathmore, 16 Ves. 419. Sugd. Vendors & Pow.-Mortg. A prior mortgagee may tack a subsequent charge to himself against an intervening judgment registered. The registry is not such a notice as entitles the judgment creditor to redeem on payment of the first security only. To entitle himself to do so, he should have given express notice to the mortgagee. Wrightson v. Hudson, cor. Sir Jos. Jekyll, 2 Eq. Ca. Abr. 609. See Powell, 286, for a comment on this case.

But a subsequent mortgagee, having notice of a prior mortgage not registered, will not gain a priority by registering, because such conduct is considered, in equity, as fraudulent, and the party hath that notice which the Act of Parliament intended he should have. Doc v. Routledge, Cowp. 712. Powell's Law of Mortgages, 257.]

1. Condition, Quid.

Limitation,
Quid.

CHAP. VI.

Of a Condition.

Lit. 201.

A CONDITION is a kind of law, or bridle, Terms of the
annexed to one's act, staying or suspending the law. Co. super
same, and making it uncertain whether it shall
take effect or no; or, as others define it, it is
modus, a quality annexed by him that hath estate,
interest, or right, to the land, &c. whereby an
estate, &c. may either be created, defeated, or en-
larged, upon an uncertain event. And this doth
differ from a limitation, which is the bounds or 27 H. 8. 16.
compass of an estate, or the time how long an
estate shall continue (1).

[These passages are not quite accurate: they
want distinctiveness. They do not accurately dis-
tinguish a limitation from a condition. A condi-
tion has uniformly the object of defeating or
avoiding an estate.

When an estate is to be granted, created, or enlarged, the clause is, in propriety of technical language, a limitation.

Even a limitation, on a condition or on a con-
tingency, is not a condition. Thus a clause, cre-
ating contingent remainders, or executory gifts by
devise, or by way of use, is properly a limitation;
and though it be by way of shifting use, or exe-
cutory devise, to defeat another estate wholly or
in part, still it is a limitation.

It is the province of a limitation to mark the
period or event for the commencement, and the
time of continuance or duration of an estate, either
by years, lives, or the series of heirs; also the
determinable qualities of an estate; as for twenty-
one years, if A. should so long live; to A. and his
heirs, so long as a tree shall stand, &c. &c.
1 Es-
tates, p. 39. 42; while a condition is a distinct
clause, and its office is to defeat the estate on some
event which may happen, as on some act to be
done, before the estate has filled the utmost mea-
sure or time appointed for its continuance.
limitation will necessarily determine the estate: a

A

Co. 2. 70.

(1) For the distinction between a condition and a limitation, see Bac. Abr. Conditions (H.) and further in 1 Atk. 374. 383.

2. Quotuplex.

condition may defeat an estate. A limitation may
suspend the vesting; a condition never interferes
with the vesting, but may act on the estate or
interest before or after it is vested. Every pro-
vision which regulates the vesting, is, in essence
and effect, part of the limitation.

When a clause stays or suspends the estate, or
rather the gift, and makes it uncertain whether the
gift shall take effect or not, that clause is properly
a limitation, and denominated sometimes a condi
tional limitation, and sometimes a limitation on a
contingency. Also, whatever provision creates or en-
larges an estate, on a certain or an uncertain event, is
of necessity a limitation. That clause only is a con-
dition, which is to defeat the estate after it has been
created or enlarged. Hence, the distinctions be-
tween gifts and conditions, between absolute estates
and estates subject to conditions, and between gifts,
&c. on a condition precedent: namely, by condi-
tional limitation or limitations on a contingency, as
contingent remainders, &c. &c. and estates on con-
ditions subsequent; that is, conditions to defeat an
estate. These distinctions are more fully explained
in 1 Prest. Estates, p. 45. 48.]

And this [a condition] sometimes is contained in 27 H. 8. 16. a testament or will, and sometimes in a deed. And Co. 2. 70. when it is in a deed, it hath no proper place assigned it, but it may be in any part of the deed; howbeit, for the most part it is placed next after the habendum, [if any,] or next after the reservation of the rent. It is also sometimes annexed to and depending upon estates, and sometimes annexed to and depending upon recognizances, statutes, obligations, contracts, and other things; conditions are also contained in acts of parliament and records. But of these we speak not here in the ensuing matters, which are especially to be applied to such conditions as are usually contained in deeds and annexed to the realty, i. e. to estates in fee-simple, fee-tail, for life, or years.

thirst's case.

Co. 8. 43.

And of these conditions there are divers kinds. Co. super Lit. For some are in deed or express, i. e. when the 201. Plow. Culcondition is expressed by the party in legal terms, and by express words in writing, or without writing, knit to the estate; as if I enfeoff a man of land, rendering rent at a day, on condition, that if it be not paid, it shall be lawful for me to

re-enter. And some are in law or implied, i. e. when
the condition is tacitè created by the law, without
any words used by the party. The first sort of
conditions also are some of them precedent, or
executed, [omit or executed, for the gift is exe-
cutory;] i. e. when the condition must be fulfilled,
are [read ere] the estate can take effect, [in other
words vest;] as where an agreement is between
me and I. S. that if he pay me 10l. at Michael-
mas, he shall have such a ground of mine for ten
years; or where I make a lease of land to I. S.
for ten years, provided that if he pay me 107. at
Michaelmas, he shall have the land to him and his
heirs; and in these cases, by the performance of
the condition, the estate is acquired (2). [These
are chattel interests, and may be limited on a con-
tingency. But, by the rules of the common law,
no estate of freehold, (except in things created de
novo, and at the time of the creation thereof, and
except estates, to be enlarged on a condition,
could be limited to commence in futuro, or on
an event or contingency, except by way of re-
mainder after, and expectant on a prior vested
estate of freehold. See 1 Prest. Estates, ch. Free-
hold.] And some of them are subsequent, and
executory, i. e. when the estate is executed, but
the continuance thereof dependeth upon the breach
or performance of the condition; as where a lease *P. 118.
is made for years, on condition that the lessee
shall pay 10l. to the lessor at Michaelmas, or else
his lease shall be void; and in this case, by the
performance of the condition, the estate is held
and kept (3). These conditions also are some of

(2) Or if an estate be limited to A. upon his marriage with B. the marriage in a precedent condition, and till that happens, no estate vests in A. Shower's Parl. Ca. 83.-See further 1 Pr. Wms. 284. 2 Atk. 18. 1 Ves. 4. S. C. 1 Wils. pt. 1. p. 159. See Roundel v. Currer, 2 Brown's Rep. 67. where testator devised his own estates, together with other estates whereof he was tenant for life, and A. tenant in tail, to trustees, in such manner as that A. would be tenant for life only of both estates, provided that his own estate was not to be conveyed till A. had suffered a recovery, and conveyed the estate to the uses of testator's will. A. died before the recovery: this was a condition precedent, and the reversion in fee expectant on the estate tail took place.

(3) For the nature and doctrine of conditions precedent and subsequent, see 2 Pr. Wms. 419. 626. 1 Vern. 83. 3 Chan. Ca. 130. 3 Lev. 132. 1 Wood, 273. Ca. Temp. Talb. 166. Swinb. 267. Eq. Ca. Abr. Conditions (B.) Bac. Abr. Conditions (I.) Vin. Abr. Conditions (T.) Com. Dig. Conditions (B.) Fearne on Conting. Remain. 3 edit. 313. 2 Burr. 899. 4 Burr. 1930. 1 Wils. pt. 1, p. 105. 136. Randall v. Curror, 2 Bro. C. C. 67. There are no precise technical words required in a deed to make a stipulation a condition precedent or subsequent; neither does it depend on the circumstance, whether the clause is

U