Perk Sect. 804. Perk. Sect. 742. Haward & Ful 3 Car. B. R. formance of the condition. And yet if a man To dwell in the If an annuity be granted of ten marks per annum continue. If a feoffment be made, on condition that the feoffee shall give all his goods si quæ fuerint, or give all his pikes in his pond si quæ fuerint; in this case the words shall be taken in the present tense, for the goods and pikes that are at the time of the grant. But if a feoffment be on condition that the feoffee shall give all his goods in London si quæ fuerint, that did belong to I. S.; in this case the words shall be taken in the preterperfect tense. the lessor in tak If one make a lease of the manor of Dale, Not to disturb cher's case, Hil. (wherein is a wood called Dale-wood,) excepting ing the wood. all the woods and underwoods growing in Dalewood, and all the great trees growing elsewhere, and this is upon condition, that if the lessee shall disturb the lessor to cut and sell the wood and underwood excepted, the lease to be void; in this case it seems the condition shall extend only to the wood and underwood in Dale-wood, and not to the trees elsewhere. [The ground of this case is, that though the trees of all the manor are excepted, the condition is confined to the wood and underwood in Dale-wood, from the use, in contrast of the terms woods, underwoods, and timber.] But if the words of the condition be, "shall disturb, &c. to cut, &c. the wood and underwood on the premises," contra; [because the word premises extends the import beyond Dale-wood. This is a very refined distinction.] Dyer, 142. If one grant land, rendering rent at the feasts To pay rent. of S. Michael and Lady-day, or within a month after, on condition that if it be behind after the feasts and days limited by the space of eight [Copulative.] *P. 139. weeks, that the lease shall be void; in this case Co. super Lit. Perk. Sect. 746 Dyer, 337. 372. If the condition be made in the copulative, and 12 H. 7. 10. consist of divers parts, every part must be ob- 225served, or the condition will not be performed (51). [Disjunctive.] But when it is made in the disjunctive, if any part of it be observed, it is a sufficient performance of the condition. And therefore if a feoffment be made, on condition to re-enfeoff and pay 201. and the feoffee do re-enfeoff, but not pay the 207.; in this case the condition is broken. But if the condition be to re-enfeoff or pay 20l. and the feoffee do one of them, it is a good performance of the condition (52). And when it is made in the copulative and disjunctive both, it shall be taken in the disjunctive only as, if a lease for years be made to A. and B. his wife, on condition, [viz. with a collateral limitation,] that the said A. and B. or any child between them shall so long live; this shall be taken in this sense if the husband, wife, or child, shall so long live; so that the lease shall not be determined by the death of the husband or wife alone (53). [Cases of this sort depend on the context.] If there be two provisoes in two several indentures of conveyance of several manors to A. and B. that if the feoffor pay or tender 20s. to A. and B. or the heirs of A. that the conveyance shall be void, and A. die; in this case tender to B. is not sufficient, and it must be made to the heir of A. and it must be 20s. for every proviso: but otherwise it is of a collateral act. [And if only one sum be paid, the tender will be void for uncertainty, unless application, or rather appropriation, be given to the tender, by showing in respect of which proviso it is made. See Thomas Gresham's case, Leo, 89.] If the words of a condition be thus, that upon Co. 3. 64. (51) But if such condition copulative is impossible to be performed, it shall be taken in the disjunctive. Owen, 52. As where the condition is, that he and his executors shall do such a thing, [viz. one act,] this is in the disjunctive, because he cannot have an executor in his lifetime. Roll. Abr. 444. ante 115. (52) If A. obliges himself to pay to B. 10l. or so much as J. S. shall appoint; if J. S. will not appoint any sum to be paid, A. shall pay the 107.; Lutw. 694. What shall be deemed a condition disjunctive, how it shall be performed, and when the performance shall be excused, see in Com. Dig. Condition (K.) (53) See accordingly the case of Baldwin and Cocks, 1 Leon, 74. Owen. 52. S. C. such a contingent the party shall enter and retain the land until the thing be done, &c. in this case, and by these words, the estate is not determined, as it is by these words, "that the estate shall be void, or that the grantor shall re-enter, or the like. And in these words there is a difference also to be observed; for if the words be, that upon such a contingent the estate shall cease and be void, and it be a lease for years to which the condition is annexed, the estate is ipso facto void without entry, or claim, and can never be affirmed afterwards. [But if the condition be for the benefit of the reversioner, then the lease will be void only if the reversioner choose to avail himself of the condition; for the lessee will not be allowed to profit by his own wrong, and discharge himself from the lease, against the will of the reversioner.] But if the words of the close of the condition be, that the feoffor, lessor, &c. shall re-enter, without any other words, albeit it be in a lease for years, yet the lease is not void until he hath made an actual re-entry; [or rather, declared his election to take advantage of the forfeiture.] But in both cases, if the estate to be avoided be an estate in fee, or for life, it is only voidable by the breach of the condition, and must be made void by entry, or claim; and, until this be done, the grantor can make no new estate of the land, [Doe d. Freeman v. Bateman, 2 Barn. & Ald. 170, so as to confer the right of entry or re-entry. Co. Litt. 214, a. And the right of re-entry will be waived by the acceptance of rent, &c. for any time subsequent to the period when the right of entry for the forfeiture accrues. But by a proviso in a conveyance to uses, the estate may be made to cease ipso facto, though the proviso be annexed to an estate of freehold. Also by a limitation, as during widowhood; or a collateral limitation, as to B. for ninety-nine years, if B. should so long live; the estate will ipso facto cease by marriage in the first instance, and by the death of B. in the second instance.] But, in the first case before, [in the text,] the party shall retain the land, and take the profits of it in the nature of a pledge, until the thing be done agreed upon in the condition, and then the other party shall have the land again. See more in the Ꮓ 9. When and how mitation shall be themselves. To make an estate. next questions. And in Obligation, numb. 7. Cove- Co. 3. 64. 282. 2 H. 4. 11. Lit. Sect. 352. The words of a condition may be performed, Co. 8. 90. a condition or li- and not the intent; and the intent may be persaid to be per- formed, and not the words; and then, for the formed; or not. 1. When the act most part, a condition is performed, when the inis to be done be- tent and meaning of it is observed; [and the diftween the parties ference between conditions precedent, and conditions subsequent, must be kept in mind.] And therefore if a feoffment be made, on condition that the feoffee, or his heirs, shall make an estate to the feoffor and his wife in tail before such a day, and before the day the husband die, and then he make an estate as near it as he may, viz. to the wife for life, without impeachment of waste, and Co. super Lit. after to the heirs of the body of the husband; this 207. is a good performance of the condition. [See observations in p. 113.] And if the condition be, that the grantee shall make a feoffment of land; and he make a lease of the land first, and then a release to the lessee and his heirs; this is tantamount, [i. e. is, as far as respects the conveyance of the property, equal to a feoffment,] and a good performance of the condition (54), since it is a con[1 Inst. 207 a.] veyance in fee; [but query if a lease and release would be sufficient, if the party required a feoffment to be made.] *P. 140. To pay money. * 222. If a feoffment be made, on condition that if the Co. super Lit. feoffor or his heirs pay 107. by a day, the feoffment Perk. Sect. 802, to be void, and the feoffor before the day doth 803. commit treason and is executed, and so dieth without heir; and after, [and] before the day, the heir is restored, [in blood,] and he at the day doth pay the money; in this case this is a good performance, notwithstanding there was once a disability. So as if heretofore one had made a feoffment, on condition to re-enfeoff by a day, and before the day the feoffee had entered into religion, and then had been dearraigned, and at the day had made the feoffment; this had been a good performance of the condition. [And note the difference between a condition and (54) If a man is bound in an obligation upon condition to enfeoff J. S. and he makes a lease for years and release to him in fee; he has performed the condition, although he has not performed the words. Plow. 7. It is well performed, because this in law amounts to a release. Br. Abr. Condition, pl. 158. Co. 5. 96. & super Lit. 208. 207. Lit. Sect. 534. 537. 16 H. 7. 2. Co. super Lit. 206. a limitation; for when once an estate determines money shall be If a feoffment be made, upon condition that if By and to whom the feoffee shall pay to the feoffor 107. such a day, paid upon conthat then he shall have the land to him and his dition. heirs, otherwise that the feoffor shall re-enter; or if it be made, on condition that the feoffee shall pay 10l. to the feoffor such a day, and before the day the feoffee sell the land; in this case the seller or the buyer, either of them, may tender the money at the day, and this will be a good performance of the condition; for he that hath interest in the land on the one side, or in the condition as party or privy on the other side, may tender and perform the condition to save the estate. If lands be mortgaged, or (which is all one) if a feoffment be made of lands, on condition that if the mortgagor or feoffor pay 10l. to the feoffee such a day, that then the estate shall be void, and before the day the mortgagor or feoffor die; in this case the heir or executor of the feoffor, the ordinary, the guardian in chivalry, or socage of the heir of the feoffor, or any other by either of their commandment precedent, or assent subsequent, may pay this money at the day; and payment or tender of it, by either of them at the day, is a good perLit. Sect. 125. formance of the condition (55). † And so also it Testament. (55) Because they represent the person of their testator, &c. and have an interest in the land; and the feoffee has the same advantage if the payment be made by the heir, &c. as if it were by the feoffor himself. Co. Lit. 209. But if the money is not paid at the day, whereby the condition is lost, and the estate of the mortgagee becomes absolute at law, the |