Dyer, 125.
Plow. 159.

Co. super Lit.
233, 234.
Co. 8. 44.

I. D. [i. e. both] shall live so long. Or if A.
grant lands to B. to have and to hold to him for
the life of B., so that B. pay 20l. to A. at
Easter following [read, so long as B. pay to A.
201. yearly, at Easter ;] these are not conditional,
[i. e. words of condition to defeat the estate,] but
limited to estates; [viz. measure the duration or
quantity of estate. The example given in the text
on the grant to B. is at least questionable]. So if
A. grant lands to B. to have and to hold to him,
for so long as he shall keep himself a widower, or
dum sola fuit, or durante viduitate, if the grantee
be a widow, these are good limited [or determinable]
estates; but these words do not make the estates to
be conditional (18); [viz. defeasible by condition,
but determinable by limitation. See Prest. Estates,
ch. Fee; ch. Life.]

If the words in the close or conclusion of a con-
Perk. Sect. 740. dition be thus, That the land shall return to the
feoffor, &c. or that he shall take it again, and turn
it to his own profit: or that the land shall revert,
or that the feoffor shall recipere the land; these are
either of them good words in a condition to give
a re-entry, as good as the word "re-enter"; and
by these words the estate will be made conditional.
The tenant by the curtesy, the tenant in tail
after the possibility of issue extinct, the tenant in
dower, the tenant for life, the tenant for years, by
statute, or elegit, guardian, &c. do hold their
estates subject to a condition in law (19); so that
if either of them alien [by feoffment, fine, or reco-
very, and without the concurrence of the owner of
the inheritance. Com. Dig.
Com. Dig. Forfeiture,] his land
in fee, or claim a greater estate in a court of record
than his own [estate, Com. Dig. Forfeiture,] he
doth forfeit his estate, and he in remainder or

**

6. What shall be law, and when

said a condition

in

an estate shall be subject to such a

condition.

reversion may enter; and if such a tenant do *P. 126. waste, he in reversion shall recover the place

wasted (20), [and treble damages. In Pelham's case,

(18) See accordingly Co. Lit. 42. a. 13 edit. and note 6. thereto.-Devise of lands by a testator to his wife durante viduitate, is not a bar of her dower. Lawrence v. Lawrence, Dom. Proc. 16th May 1717, [unless so expressed.]

(19) Which is distinguished from a condition in deed, it being that which is implied by law, without any express words in the deed. Co. Lit. 232 b.

(20) Waste is either voluntary or actual, as by pulling down a house; or it is permissive, as by suffering it to fall for want of necessary repairs, 2 Inst. 145. An action of waste lies against tenant by the curtesy, in dower, for life, &c. by him that hath the immediate

7. What shall be said a good con

1 Rep. 146, it was held, that the recovery of a tenant
for life who had a remote estate of inheritance was a
forfeiture of his life estate. But in Smith v. Clifford,
1 Term Rep. 738, the court of King's Bench (absent
Kenyon) arrived at a different conclusion]. The
tenant in fee simple doth hold his estate subject to
a condition in law; so that if he alien his land in
mortmain, he doth forfeit it, and the lord may enter
upon him. So also he that doth take land in ex-
change, doth hold it under a condition in law,
viz. that if the land he give [gave] in exchange for
that land be, [while the privity between the parties
continues,] recovered from him that hath it, that
he shall enter upon his own land again. [On
the law, in this particular, see chap. Exchange.]
Also every officer that hath to do in the adminis-
tration of justice, all keepers of parks, stewards,
beadles, bailiffs, and such like, hold their offices
under a condition in law; so that if they do not
duly execute it, [the office,] and do not all that
thereunto doth appertain, they may forfeit them,
and the grantor may put them out. In quo quis
delinquit in eo est de jure puniendus (21). ́ ́ [Com.
Dig. Officer, (K.) 2. 8. 11.]

To every good [express] condition is required dition in deed or an external form, i. e. [sufficient] words to declare limitation, in its an intent in the party to have the estate conditional, as in the cases before: and an internal form,

original creation; and what not.

estate of inheritance, for waste, or destruction in houses, gardens, woods, trees, or in land, meadows, &c. to the disherison of him in reversion or remainder, Co. Lit. 53 a. The doctrine of waste, though very material, is but little explained in the Touchstone. It is not within the compass of a note to supply the deficiency, The editor will therefore content himself by referring the reader to some authors respecting waste, under the four following general heads, in order to facilitate his inquiry into any particular point of that doctrine. 1st. What shall be deemed waste, and its different kinds, Co. Lit. 53 a. 5 Co. 12. Com. Dig. Waste (D. 1.) 2 Roll. Abr. 814. 2 Bl. Com. 281. Bac. Abr. Waste (A.) Observations upon estates for life, respecting waste, octavo, printed for Uriel, 1777. 2d. Of what things, and in what manner, waste may be made. 5 Co. 12. 21. 7 Co. 15. Vin. Abr. Waste (C.) and (D.) Bac. Abr. Waste (C.)

3d. By whom, against whom, remedy may be had for it. Co. Lit. 285 a. 2 Roll. Abr. 824. 6 Co. 37 b. 11 Co. 49. Wright's Ten. 44. 2 Inst. 299. Stat. 6 Ann, c. 31. Bac. Abr. Waste (G.). (H.) 3 Bl. Com. 223. Com. Dig. Waste (C.1) 1 Vez. 521. 2 Atk. 383.

4th. At what time, and in what manner, that remedy can be obtained. Co. Lit. 356 a. Br. Abr. Waste pl. 42. F. N. B. 59. 2 Inst. 146. 306. Bac. Abr. Waste (I.) Vin. Abr. Waste (M. 3.) (L. a.) In what cases injunction granted, Vin. Abr. Waste (R. a.) Eq. Ca. Abr. Waste. 1 Vez. 546. 2 Atk. 183.

(21) In like manner to all franchises there is a condition in law annexed, that they shall not be misused. Mir. ch. 5. § 4. 2 Inst, 223, Com. Dig. Condition (R.) What shall be deemed a breach of a condition in law, see in Com. Dig. Condition (S.)

Perk. Sect. 717.

Co. 1. 113.
Plow. 133.
Co. super Lit.
146. 217.
Co. 2. 71.

i. e. such matter as whereof a condition may be
made.

1. For the man

ner, frame, and order of making

As to things executed, [and being of freehold,]
the condition must be made and annexed to the
estate at the time of the making of it; but as to it.
things executory, [including leases for years,] it
[the condition] may be made afterwards. '[See
chap. Defeasance.] And if the condition be made
in another deed, and not the same deed wherein
the estate is made, if it be delivered at the same
time, it is as good as if it were contained in the
same deed; [for qua incontinenti fiunt, in esse
videntur; and the several deeds are parts of the
same assurance.] And therefore if a man make a
feoffment, lease [for lives,] or the like, by one deed
absolute, and at the same time make another deed of
defeasance or condition, and deliver both together,
this is a good condition, and will make the estate
conditional. But if the defeasance be sealed and
delivered before, or after the deed, [viz. not being
parts of the same transaction,] contra. And
therefore if one make an absolute feoffinent in fee,
and before or after the sealing or delivery of that
deed, [viz. at a different time, or rather as a dis-
tinct transaction,] the feoffor declare himself by
deed, or the feoffor and feoffee agree by deed, that
the estate made before, or to be made after, shall
be conditional, yet this is not conditional. [For
if both instruments be parts of the same transaction,
though they may not be delivered uno flatu, yet
these deeds would, in all probability, be deemed
parts of that transaction. In this instance the de-
feasance or deed, containing the condition, should
be in such language as will admit of that construc-
tion, and not treat the feoffment as an entire, perfect
and independent instrument. Hence also the usual
form of indorsements: Memorandum, that before
the execution of the within written indenture, &c.]
And yet if an annuity be granted absolutely [in fee,
for life, or for years, or a term of years in land,] by
one deed, and after the grantee grant to the grantor,
that if the grantor do such a thing, the annuity shall
cease in this case the annuity is conditional (22.)
See chap. Defeasance.]

(22) Also rents, conditions, warranties, and such like, inheritances executory, may be defeated by defeasance made either at that time, or at any time after-and so the law is of

*P. 127.

Co. 146.

Hil. 40. Jac.

Albanie's case.

[Infra, ch. De

A condition may, [at the creation thereof,] be annexed to an estate [arising] by way of use; as B. R. Warner's if a feoffment be made to A. to the use of B. and case. Co. 1. 112. his heirs, on condition that B. shall pay to the feoffor 207. such a day; this is a good condition. [Also to an use after its creation, and while it is executory; sed query.] So if one covenant to stand 46.] seised of lands to the use of B. and his heirs, on condition that if he pay him 107. the use shall be void,

feasance,
2 Prest. Convey.

or the like. Also a condition may be annexed to Dyer, 126. 348.
an estate created by will; as if one devise land to
I. S. for his life, provided that he pay 107. yearly
to I. D.; this is a good condition. Whereof see
in Testament. [So in uses and wills, there may be
a clause operating as a condition to a prior estate
and a limitation over; but these clauses are pro-
perly denominated conditional limitations, giving
new estates, and operating as collateral deter-
minations of the prior estates. Powers of leasing,
&c. partake of the nature, and are in effect condi-
tional limitations.]

24 Ed. 3. 29.

A rent, or any such like thing may, [as its ori- Co. 8. 17. ginal creation, and as a modification of the estate; 1 Prest. Estates, p. 217;] be granted on condition, that if such a thing be or be not done, the rent shall cease for a time, and then revive again, and this condition is good. But in case of land it is otherwise [at the common law,] for that cannot be granted after this manner. [The object was to avoid the abeyance or suspense of the freehold; 1 Prest. Est. chap. Freehold. The same rule applies to grants of rents, &c. already created. But the right, &c. to rents may be suspended by a defeasance; but this of course is a transaction, not between the present owner and his grantee, but between the owner and the person liable to answer the rent.] Also a con- Co. 1. 86. dition, [at the common law,] to make an estate void Perk. Sect. 718 for a part of the time, is not good. And thereDyer, 6. fore if a feoffment be on condition, that upon such a contingent the feoffor shall enter, and have the land for a time, [as distinguished from a right to enter and hold till, &c. ;] or the estate shall be void for a part of the time; or make a lease for ten

years, provided that upon such a contingent it

Co.

statutes, recognizances, and other things executory. Co. Lit. 237 a. [So bonds, judgments, &c. may be defeasanced by a deed of a subsequent date; infra, chap. Defeasance.]

་

shall be void for five years; these conditions are
not good. [The last example, as applied to years,
is questionable. And in a conveyance to uses, an
estate may be postponed, &c. by the introduction,
through the medium of a power, springing use, &c.
of a particular estate. The like may also be done,
by limitations or powers, in a will.] And yet if a
feoffment be made of two acres, provided that
upon such a contingent the estate shall be void as
to one acre only; this is a good condition (23).

A condition that a stranger, or the heir of the
feoffor, shall do an act, is good; [viz. a condition
may be so penned as to be operative on an act to
be done by the heir of the feoffor, or by a stranger,
as well as by the feoffor;] as if a feoffment be
made to I. S. on condition that I. D. shall pay
to the feoffor 107. at Easter next; or if a feoff-
ment be made on condition that if the heir of the
feoffor pay 208. to the feoffee, that the feoffor, [in
one case,] and his heirs, [in the other case,] shall
re-enter. But a condition to give a stranger a
re-entry, [at the common law,] is void so far forth,
[omit, so far forth.] And therefore if an estate be
made, [at the common law,] upon condition, that
upon such a contingent a stranger shall enter, or
the estate shall cease, and another shall have it;
howsoever this may be so drawn, as it may be a
good condition to give him, his heirs, &c. that doth
make the estate, an entry, yet it cannot be good to
give the estate, or the entry, to the stranger. [It
is otherwise in a will and conveyance to uses; but
such clauses operate in these instruments as con-
ditional limitations, and not as conditions.] So if
a feoffment be made on condition that upon such
a contingent the feoffor and a stranger shall enter;
this is not good to give an entry to the stranger,
but it is good to give [to] the feoffor a re-entry.
And yet by will a man may devise a term after
this manner. [So he may the inheritance, by way
of executory devise. So in a will, even as to
estates of freehold, and in limitations of use, a
stranger may have an estate, by way of conditional
limitation, giving a right of entry.]

If a man enfeoff another, upon condition that

(23) Feoffment of two acres upon condition, and that for breach he may re-enter in one; this is a good condition. Vin. Abr. Condition (N.)