Commentaries on American Law (1826-30)
Chancellor James Kent
Of Estates upon Condition
ESTATES upon condition are such as, have a qualification annexed to them, by which they may, upon the happening of a particular event, be created, or enlarged, or destroyed.1 They are divided by Littleton2 into estates upon condition implied or in law, and estates upon condition express or in deed.
(1.) Of conditions in law.
Estates upon condition in law are such as have a condition impliedly annexed to them, without any condition being specified in the deed or will.3 If the tenant for life or years aliened his land by feoffment, this act was, at common law, as we have already seen, an implied forfeiture of the estate, being a fraudulent attempt to create a greater estate than the tenant was entitled to, and the reversioner might have entered, as for a breach of the condition in law.4 Those estates were likewise subject to forfeiture, not only for waste, but for any other act which, in the eye of the law, tended to defeat or divest the estate in reversion, or pluck the seignory out of the hands of the lord.5 It was a tacit condition annexed to every tenancy, that the tenant should not do any act to the prejudice of the reversion.
The doctrine of estates upon condition, in law, is of feudal extraction, and resulted from the obligations arising out of the feudal relation. The rents and services of the feudatory were considered as conditions annexed to his fief, and strictly construed. If the vassal was in default by the non-payment of rent, or non-performance of any feudal duty or service, the lord might resume the fief, and the rents and services were implied conditions inseparable from the estate. The remedy for breach of the condition was confined to the resumption of the, estate by the donor and his heirs; and that resumption was required by the just interposition of the law, to be by judicial process.6 The obligation of fidelity resulting from the feudal solemnity of homage was mutual, and if the lord neglected to protect his feudatory according to his estate, he was liable to be condemned to lose his seignory, as well as the tenant, for default on his part, to forfeit his freehold.7
At common law, a condition annexed to real estate could not be reserved to any one except the grantor and his heirs; (and the heir might enter for a condition broken, though not expressly named,8) and no other person could take advantage of a condition that required a re-entry to revest the estate. The grantor had no devisable interest by means of the condition, until he had restored his estate by entry, or by action, though he might extinguish his right by feoffment or fine to a stranger, or by a release to the person who had the estate subject to the condition.9 The assignee of the reversion could not enter for a condition broken, and for this purpose he was considered a mere stranger.
The statute of 32 Hen. VIII. c. 34. altered the common law in this respect, so far as to enable assignees of reversions to particular estates, to which conditions were annexed, to take advantage of the conditions; and it gave to the tenant the like remedies against the assignee, that he would have had against the assignor. This statute has been formally re-enacted in some of these United States; and though the statute was made for the special purpose of relieving the king, and his grantees, under the numerous forfeitures and grants of estates that had belonged to monasteries and other religious houses, yet the provision is so reasonable and just, that it has doubtless been generally assumed and adopted as part of our American law.10 In the exposition of the statute it has been held, that the grantee of part of the reversion could not take advantage of the condition, and it is destroyed by such a grant. The provision is confined to such conditions as are incident to the reversion, or for the benefit of the estate.11
(2.) Of conditions in deed.
These conditions are expressly mentioned in the contract between the parties, as if a man (to use the case put by Littleton12) enfeoffs another in fee, reserving to himself and his heirs a yearly rent, with an express condition annexed, that if the rent be unpaid the feoffor and his heirs may enter and hold the lands free of the feoffment. So, if a grant be to A. in fee, with a proviso, that if he did not pay twenty pounds by such a day, the estate should be void. It is usual, in the grant, to reserve, in express terms, to the grantor and his heirs, a right of entry for breach of the condition; but the grantor or his heirs may enter and take advantage of the breach by ejectment, though there be no clause of entry.13
A condition in deed is either general or special. The former puts an end altogether’ to. the tenancy on entry for the: breach of the condition; but the latter only authorizes the reversioner to enter on the land, and take the profits to his own use, and hold the land by way of pledge until the condition be fulfilled.14 The stipulations in the form of a condition are various, and may be of any kind consistent with the general rules of law, as that the tenant pay a rent yearly or quarterly, or enfeoff B., or do a specified service for A., or sow the land with some particular grain, or do not assign or underlet without license, or do not marry a particular person.15
These conditions are also either precedent or subsequent; and as there are no technical words to distinguish them, it follows, that whether they be the one or the other, is matter of construction, and depends upon the intention of the party creating the estate.16 A precedent condition is one which must take place before the estate can vest, or be enlarged; or if a lease be made to B. for a year, to commence from the first day of May thereafter, upon condition that B. paid a certain sum of money within the time; or if an estate for life be limited to A. upon his marriage with B.; here the payment of the money inn the one case, and the marriage in the other, are precedent conditions, and until the condition be performed, the estate cannot be claimed, or vest.17 Precedent conditions must be literally performed; and even a court of chancery will never vest an estate, when, by reason of a condition precedent, it will not vest in law.18
Subsequent conditions are those which operate upon estates already created and vested, and render them liable to be defeated.. Of this kind are most of the estates upon condition in law, and which are liable to be defeated on breach of the condition, as on failure of payment of the rent, or performance of other services annexed to the estate. So long as these estates upon subsequent condition continue unbroken, they remain in the same situation as if no such qualification had been annexed. The persons who have an estate of freehold subject to a condition, are seized, and may convey, or devise the same, or transmit the inheritance to their heirs, though the estate will continue defeasible until the condition be performed, or destroyed, or released, or barred by the statute of limitations, or by estoppel.19
A devise of lands to a town for a schoolhouse, provided it be built within one hundred rods of the place where the meeting-house stands, was held to be valid as a condition subsequent, and the vested estate would be forfeited, and go over to the residuary devisee as a contingent interest, on non-compliance in a reasonable time with the condition.20 Though an estate be conveyed, it passes to the grantee subject to the condition, and lathes are chargeable upon the grantee, even though such grantee, or his assignee, be an infant or feme covert, for non-performance of a condition annexed to the estate.21 It is a general principle of law, that he who enters for a condition broken, becomes seized of his first estate, and he avoids, of course, all intermediate charges and encumbrances.22
If the condition subsequent be followed by a limitation over to a third person, in case the condition be not fulfilled, or there be a breach of it, that is termed a conditional limitation.23 Words of limitation mark the period which is to determine the estate, but words of condition render the estate liable to be defeated in the intermediate time, if the event expressed in the condition arises before the determination of the estate, or completion of the period described by the limitation. The one specifies the utmost time of continuance, and the other marks some event, which, if it takes place in the course of that time, will defeat the estate.24
The material distinction between a condition and a limitation consists in this, that a condition does not defeat the estate, although it be broken, until entry by the grantor or his heirs; and when the grantor enters, he, is in as of his former estate. His entry defeats the livery made on the creation of the original estate, and, consequently, all subsequent estates or remainders dependent thereon. Conditions can only be reserved for the benefit of the grantor and his heirs. A stranger cannot take advantage of the breach of them. There must be an actual entry for the breach of the condition, or there must be, in the case of non-payment of rent, an action of ejectment, brought as a substitute, provided by the statute of 4 Geo. II. c. 2. (and which was adopted in New York in 1788, and the provision is now incorporated into the body of the new Revised Statutes,25) for the formal re-entry at common law. But it is in the nature of a limitation to determine the estate when the period of the limitation arrives, with out entry or claim, and no act is requisite to vest the right in him who has the next expectant interest.26
To get rid of the difficulty under the old rule of law, that an estate could not be limited to a stranger upon an event which went to abridge or determine the previously limited estate, a distinction was introduced in the case of wills, between a condition and a conditional limitation, and which has been supposed to partake more of refinement and subtlety than of solidity. A conditional limitation is of a mixed nature, and partakes of a condition, and of a limitation; as if an estate be limited to A. for life, provided that when C. returns from Rome, it shall thenceforth remain to the use of B. in fee. It partakes of the nature of a condition, inasmuch as it defeats the estate previously limited, and it is so far a limitation, and to be distinguished from a condition, that upon the contingency taking place the estate passes to the stranger without entry, contrary to the maxim of law, that a stranger cannot take advantage of a condition broken.27 These conditional limitations, though not valid in the old conveyances at common law, yet, within certain limits, they are good in wills and conveyances to uses.28
There is this further distinction to be noticed between a condition annexed to an estate for years, and one annexed to an estate of freehold, that in the former case the estate ipso facto ceases as soon as the condition is broken; whereas, in the latter case, the breach of the condition does not cause the cesser of the estate, without an entry or claim for that purpose. It was a rule of the common law, that where an estate commenced by livery, it could not be determined before entry. When the estate has, ipso facto, ceased, by the operation of the condition, it cannot be revived without a new grant; but a voidable estate may be confirmed, and the condition dispensed with.29
A collateral limitation is another refinement belonging to this abstruse subject of limited and conditional estates. It gives an interest for a specified period, but makes the right of enjoyment to depend on some collateral event, as a limitation of an estate to a man and his heirs, tenants of the manor of Dale, or to a woman during widowhood, or to C. till the return of B. from Rome, or until B. shall have paid him £20. The event marked for the determination of the estate is collateral to the time of continuance. These superadded clauses of qualification give to the estate a determinable quality; and, as we have already seen in a former lecture,30 if the estate be one of inheritance, it is distinguished as a qualified, base, or determinable fee. The estate will determine, as soon as the event arises, and it never can be revived.31
Conditions subsequent are not favored in law, and are construed strictly, because they tend to destroy estates; and the rigorous exaction of them is a species of summum jus, and in many cases hardly reconcilable with conscience.32 If the condition subsequent be possible at the time of making it, and becomes afterwards impossible to be complied with, either by the act of God, or of the law, or of the grantor, or if it be impossible at the time of making it, or against law, the estate of the grantee being once vested, is not thereby divested, but becomes absolute.33 So, if the condition be personal, as that the lessee shall not sell without leave, the executors of the lessee not being named, may sell without incurring a breach.34 A court of equity will never lend its aid to divest an estate for the breach of a condition subsequent. The cases, on the contrary, are full of discussions, how far chancery can relieve against subsequent conditions.
The general rule formerly was, that the court would interfere, and relieve against the breach of a condition subsequent, provided it was a case admitting of compensation in damages.35 But the relief, according to the modern doctrine in equity, is confined to cases where the forfeiture has been the effect of inevitable accident, and the injury is capable of compensation.36 In the case of Hill v. Barclay,37 Lord Eldon said, relief might be granted against the breach of a condition to pay money, but not where anything else was to be done; and he insisted, that where the breach of the condition consisted of acts of commission, directly in the face of it, as by assigning a lease without license, and the law had ascertained the contract, and the rights of the parties, a court of equity could not interfere. A court of equity cannot control the lawful contracts of parties, or the law of the land.
Conditions are not sustained when they are repugnant to the nature of the estate granted, or infringe upon the essential enjoyment and independent rights of property, and tend manifestly to public inconvenience. A condition annexed to a conveyance in fee, or by devise, that the purchaser or devisee should not alien, is unlawful and void. The restraint is admitted in leases for life or years, but it is incompatible with the absolute right appertaining to an estate in tail or in fee. If the grant be upon condition that the grantee shall not commit waste, or not take the profits, or his wife not have her dower, or the husband his curtesy, the condition is repugnant and void, for these rights are inseparable from an estate in fee.38 Nor could a tenant in tail, though his estate was originally intended as a perpetuity, be restrained by any proviso in the deed creating the estate, from suffering a common recovery.39 Such restraints were held by Lord Coke to be absurd and repugnant to reason, and to “the freedom and liberty of freemen.” The maxim which he cites, contains a just and enlightened principle, worthy of the spirit of the English law in the best ages of English freedom Iniquum est ingenuis hominibus non esse liberam rerum suarum alienationem.40
If, however, a restraint upon alienation be confined to an individual named, to whom the grant is not to be made, it is said by very high authority,41 to be a valid condition. But this case falls within the general principle, and it may be very questionable whether such a condition would be good at this day. In Newkirk v. Newkirk,42 the court looked with a hostile eye upon all restraints upon the free exercise of the inherent right of alienation belonging to estates in fee, and a devise of lands to the testator’s children, in case they continued to inhabit the town of Hurley, otherwise not, was considered to be unreasonable and repugnant to the nature of the estate.
If it be doubtful whether a clause in a deed be a covenant or a condition, the courts will incline against the latter construction, for a covenant is far preferable to the tenant. If a condition be broken, the landlord may indulge his caprice, and even malice, against the tenant, without any certain relief; but equity will not enforce a covenant embracing a hard bargain; and at law there can be no damages without an injury.43 Whether the words amount to a condition, or a limitation, or a covenant, may be matter of construction, depending on the contract.44 The distinctions on this subject are extremely subtle and artificial; and the construction of a deed, as to its operation and effect, will, after all, depend less upon artificial rules, than upon the application of good sense and sound equity to the object and spirit of the contract in the given case. A tender of performance at the day will save a condition; and if the tender be refused, the land may be discharged, as in the case of a mortgage, while the debt remains.45
1. Co. Litt. 201. a.
2. Litt. sec. 325.
3. Litt. sec. 378, 380. Co. Litt. 215. b. 233. b. 234. b.
4. Co. Litt. 215. a. 251. b.
5. Glanv. lib. 9. ch. 1. Fleta. lib. 3. ch. 16. Wright on Tenures, 203.
6. Wright on Tenures, p. 196-199. Butler’s note 84. to lib. 3. Co. Litt.
7. Fleta, lib. 3. ch. 16. sec. 9. 15. 25.
8. This ancient rule is noticed in the very modern case of Jackson v. Topping, 1 Wendell, 388.
9. Litt. sec. 347, 348. Co. Litt. 215. a.
10. Laws of N.Y. sess. 11. ch. 7. and N.Y. Revised Statutes, vol, i. 747. sec. 23, 24., and by Act of Virginia, November 29, 1792.
11. Co. Litt. 215. a. b.
12. Litt. sec. 325.
13. Lord Hardwicke, in Wigg v. Wigg, 1 Atk. 383. Doe v. Watt, 1 Mann. & Ryl. 694.
14. Litt. sec. 325. 327. Co. Litt. 203. a. Shep. Touch. 157.
15. Co. Litt. 206, 207. Shep. Touch. by Preston, vol. i. 128-130.
16. Ashhurst, J. in 1 Term Rep. 695. Lord Eldon, in 2 Bos. & Pull. 295. Heath, J. ibid. 297.
17. 2 Blacks. Com. 154.
18. Popham v. Bampfield, 1 Venn. 83.
19. 2 Blacks. Com. 156. Preston on Abstracts of Title, vol. ii. 185.
20. Hayden v. Stoughton, 5 Pick. Rep. 528.
21. Co. Litt. 246. b.
22. Perkins, sec. 840. Sh. Touch. by Preston, vol. i. 121. 155.
23. Pells v. Brown, 2 Cro. 591. Holt, Ch. J., Page v. Hayward, 11 Mod. Rep. 61. Lord Hardwicke, in Wigg v. Wigg, 1 Atk, 383. 2 Blacks. Com. 155.
24. Shep. Touch. by Preston, vol. i. 117. Preston on Estates, vol. i. 45. 49. 128, 129.
25. N.Y. Revised Statutes, vol. ii. 505. sec. 30.
26. Co. Litt. 214. b. 218. a. 10 Co. 40. b. 2 Blacks. Com. 155. Preston on Estates, vol. i. 46-48. Shep. Touch. by Preston, vol. i. 121.
27. Butler’s note 99. to lib. 3. Co. Litt. Mr. Douglass, in a note to Doug. Rep. 755. thinks the distinction between a conditional limitation, and a remainder, merely verbal; but Mr. Fearne (Fearne on Remainders, p. 10-18.) vindicates the distinction, and relies on the authority of the case of Cogan v. Cogan, Cro. Eliz. 360. Conditional limitations which are contingent remainders, are limited to commence when the first estate is, by its original limitation, to determine; but conditional limitations which are not remainders, are so limited as to be independent of the extent and measure given to the first estate, and are to take effect upon an event which may happen before the regular determination of the first estate, and so rescind it. This is Mr. Fearne’s distinction, but he is not clear and fortunate when he comes to illustrate it by examples, and they do appear to be subtly refined, and essentially verbal.
28. Fearne on Remainders, p.10. p. 391-393. 409. 410. In Lady Ann Fry’s case, 1 Trent. 199. Sir Matthew Hale said, the point was too clear for argument; and that though the word condition be used, yet limiting a remainder over made it a limitation. The N.Y. Revised Statutes, vol. j. 725. sec, 27. have established and made valid those conditional limitations, whether created by deed or will, and they have thus wisely put an end to the nice and unreasonable distinction in the English books on this point.
29. Co. Litt. 215. a. Pennant’s case, 3 Co. 64. Preston on Abstracts of Title, vol. iii. 397. Mr. Preston says, that every limitation which is to vest an interest on a contingency, or upon an event which may, or may not happen, is a conditional limitation. A contingent remainder is a conditional limitation; and estates which have their operation by resulting or springing use, or by executory devise, and are to commence on an event, are all raised by conditional limitations. It is the uncertainty of the happening of the event that distinguishes an absolute limitation from a conditional limitation, or a limitation upon contingency. Though all contingent interests are executory, yet all executory interests are not contingent. Preston on Estates, vol. i. 40, 41. 63. Mr. Preston here confounds conditional and contingent limitations; but Lord Mansfield, in Buckworth v. Thirkell, 3 Bos. & Pull. 247. note. S. C. 1 Col. Jurid. 247. marked the distinction, and said there might be a limitation depending on a contingency without any condition in it.
30. Lect. 53.
31. Poole v. Nedham, Yelv. 149. Baldwin and Cock’s case, 1 Lean, 74. Preston on Estates, vol. i. 43, 44. 49, 50.
32. Co. Litt. 205. b. 219. b. 8 Co. 90. b.
33. Co. Litt. 206. a. 208. b. 2 Blacks. Com. 156. Parker, Ch. J. in Mitchel v. Reynolds, 1 P. Wms. 189. Lord Ch. J. Preby, in Cary v. Bertie, 2 Vern. 339.
34. Dyer, 66. a. p1. 8 Moore, 11. p1. 40.
35. Popham v. Bampfield, 1 Yern. 83.
36. Rolfe v. Harris, 2 Price’s Exch. Rep. 207. note. Bracebridge v. Buckley, ibid. 200.
37. l8 Vesey. 56.
38. Mildway’s case, 6 Co. 40. Litt. sec. 360. Co. Litt. 208. b. 223, a. Stukeley v. Butler, Hob. 168.
39. Mary Portington’s case, 10 Co. 42. a.
40. Co. Litt. 223. a.
41. Litt. Sec. 361. Co. Litt. 223.
42. 2 Caines’ Rep. 345.
43. Best, Ch. J. in Doe v. Phillips, 9Moore’s Rep. 46.
44. The words usually employed in creating a condition are, upon condition, and this, says Lord Coke, is the most appropriate expression; or the words may be, so that-provided-if it shall happen, etc. The apt words of limitation are, while-so long as-until-during, etc. The words provided always, may, under the circumstances, be taken as a condition, or as a limitation, and sometimes as a covenant. Litt. sec. 325-330. Co. Litt. 203. a. b. Mary Portington’s case, 10 Co. 41. b. 42. a. Bacon’s Abr. tit. Conditions, H.
45. Litt. sec. 338. Co. Litt. 209. b. Jackson v. Crafts, 18 Johns. Rep. 110. Swett v. Horn, 1 Adam’s N. H. Rep. 332.