Blackstone’s Commentaries with Notes of Reference (1803)
St. George Tucker
Of Estates upon Condition
BESIDES the several divisions of estates, in point of interest, which we have considered in the three preceding chapters, there is also another species still remaining, which is called an estate upon condition; being such whose existence depends upon the happening or not happening of some uncertain event, whereby the estate may be either originally created, or enlarged, or finally defeated.1 And these conditional estates I have chosen to reserve till last, because they are indeed more properly qualifications of other estates, than a distinct species of them selves; seeing that any quantity of interest, a fee, a freehold, or a term of years, may depend upon these provisional restrictions. Estates then upon condition, thus understood, are of two sorts: 1. Estates upon condition implied: 2. Estates upon condition expressed: under which last may be included, 3. Estates held in vadio, gage, or pledge: 4. Estates by statute merchant or statute staple: 5. Estates held by elegit.
1. Estates upon condition implied in law, are where a grant of an estate has a condition annexed to it inseparably, from its essence and constitution, although no condition be expressed in words. As if a grant be made to a man of an office, generally, without adding other words; the law tacitly annexes hereto a secret condition, that the grantee shall duly execute his office,2 on breach of which condition it is lawful for the grantor, or his heirs, to oust him, and grant it to another person.3 For an office, either public or private, may be forfeited by mis-user or non-user; both of which are breaches of this implied condition. 1. By mis-user, or abuse; as if a judge takes a bribe, or a park-keeper kills deer without authority. 2. By non-user, or neglect; which in public offices, that concern the administration of justice, or the commonwealth, is of itself a direct and immediate cause of forfeiture: but non-user of a private office is no cause of forfeiture, unless some special damage is proved to be occasioned thereby.4 For in the one case delay must necessarily be occasioned in the affairs of the public, which require a constant attention; but, private offices not requiring so regular and unremitted a service, the temporary neglect of them is not necessarily productive of mischief; upon which account some special loss must be proved, in order to vacate these. Franchises also, being regal privileges in the hands of a subject, are held to be granted on the same condition of making a proper use of them; and therefore they may be lost and forfeited, like offices, either by abuse or by neglect.5
Upon the same principle proceed all the forfeitures which are given by law of life estates and others; for any acts done by the tenant himself, that are incompatible with the estate which he holds. As if tenants for life or years enfeoff a stranger in fee-simple: this is, by the common law, a forfeiture of their several estates; being a breach of the condition which the law annexes thereto, viz. that they shall not attempt to create a greater estate then they themselves are entitled to.6 So if any tenants for years, for life, or in fee, commit a felony; the king or other lord of the fee is entitled to have their tenements, because their estate is determined by the breach of the condition, “that they shall not commit felony,” which the law tacitly annexes to every feudal donation.
II. An estate on condition expressed in the grant itself, is where an estate is granted, either in fee-simple or otherwise, with an express qualification annexed, whereby the estate granted shall either commence, be enlarged, or be defeated, upon performance or breach of such qualification or condition.7 These conditions are therefore either precedent, or subsequent. Precedent are such as must happen or be performed before the estate can vest or be enlarged; subsequent are such, by the failure or nonperformance of which an estate already vested may be defeated. Thus, if an estate for life be limited to A upon his marriage with B, the marriage is a precedent condition, and till that happens no estate8 is vested in A. Or, if a man grant to his lessee for years, that upon payment of a hundred marks within the term he shall have the fee, this also is a condition precedent, and the fee-simple passes not till the hundred marks be paid.9 But if a man grant an estate in fee-simple reserving to himself and his heirs a certain rent; and that, if such rent be not paid at the times limited, it shall be lawful for him and his heirs to re-enter, and avoid the estate; in this case the grantee and his heirs have an estate upon condition subsequent, which is defeasible if the condition be not strictly performed.10 To this class may also be referred all base fees, and fee-simples conditional at the common law.11 Thus an estate to a man and his heirs, tenants of the manor of Dale, is an estate on condition that he and his heirs continue tenants of that manor. And so, if a personal annuity be granted at this day to a man and the heirs of his body; as this is no tenement within the statute of Westminster the second, it remains, as at common law, a fee-simple on c condition that the grantee has heirs of his body. Upon the same principle depend all the determinable estates of freehold, which we mentioned in the eighth chapter; as durante viduitate, etc: these are estates upon condition that the grantees do
not marry, and the like. And, on the breach of any of these subsequent conditions by the failure of these contingencies; by the grantee’s not continuing tenant of the manor of Dale, by not having heirs of his body, or by not continuing sole; the estates which were respectively vested in each grantee are wholly determined and void.
A distinction is however made between a condition in deed and a limitation, which Littleton12 denominates also a condition in law. For when an estate is so expressly confined and limited by the words of its creation, that it cannot endure for any longer time than till the contingency happens upon which the estate is to fail, this is denominated a limitation: as when land is granted to a man, so long as he is parson of Bale, or while he continues unmarried, or until out of the rents and profits he shall have made 500£ and the like.13 In such cases the estate determines as soon as the contingency happens, (when he ceases to be parson, marries a wife, or has received the 500£) and the next subsequent estate, which depends upon such determination, becomes immediately vested, without any act to be done by him who is next in expectancy. But when an estate is, strictly speaking, upon condition in deed (as if granted expressly upon condition to be void upon the payment of 40£ by the grantor, or so that the grantee continues unmarried, or provided he goes to York, etc.14) the law permits it to endure beyond the time when such contingency happens, unless the grantor or his heirs or assigns take advantage of the breach of the condition, and make either an entry or a claim in order to avoid the estate.15 But, though strict words of condition be used in the creation of the estate, yet if on breach of the condition the estate be limited over to a third person, and does not immediately revert to the grantor or his representatives, (as if an estate be granted by granted by A to B, on condition that within tow years B intermarry with C, and on failure thereof then to D and his heirs) this the law construes to be a limitation and not a condition:16 because, if it were a condition, then, upon the breach thereof, only A or his representatives could avoid the estate by entry, and so D’s remainder might be defeated by their neglecting to enter; but, when it is a limitation,
the estate of B determines, and that of D commences, the instant that the failure happens. So also, if a man by his will devises land to his heir at law, on condition that he pays a sum of money, and for non-payment devises it over, this shall be considered as a limitation; otherwise no advantage could be taken of the non-payment, for none but the heir himself could have entered for a breach of condition.17
In all these instances, of limitations or conditions subsequent, it is to be observed, that so long as the condition, either express or implied, either in deed or in law, remains unbroken, the grantee may have an estate of freehold, provided the estate upon which such condition is annexed be in itself of a freehold nature; as if the original grant express either an estate of inheritance, or for life, or no estate at all, which is constructively an estate for life. For the breach of these conditions being contingent and uncertain, this uncertainty preserves the freehold;18 because the estate is capable to last for ever, or at least for the life of the tenant, supposing the condition to remain unbroken. But where the estate is at the utmost a chattel interest, which must determine at a time certain, and may determine sooner, (as a grant for ninety nine years, provided A, B, and C, and the survivor of them, shall so long live) this still continues a mere chattel, and is not, by its uncertainty, ranked among estates of freehold.
These express conditions, if they be impossible at the time of their creation, or afterwards become impossible by the act of God or the act of the feoffor himself, or if they be contrary to law, or repugnant to the nature of the estate, are void. In any of which cases, if they be conditions subsequent, that is, to be performed after the estate is vested, the estate shall become absolute in the tenant. As, if a feoffment be made to a man in fee-simple, on condition that unless he goes to Rome in twenty four hours; or unless the marries with Jane S. by such a day; (within which time the woman dies, or the feoffor marries her himself) or unless the kills another; or in case he alienes in fee; then and in any of such cases the estate shall be vacated and determine: here the condition is void, and the estate made absolute in the feoffee. For he has by the grant the estate vested in him, which shall not be defeated afterwards by a condition either impossible, illegal, or repugnant.19 But if the condition be precedent, or to be performed before the estate vests, as a grant to a man that, if he kills another or goes to Rome in a day, he shall have an estate in fee; here, the void condition being precedent, the estate which depends thereon is also void, and the grantee shall take nothing by the grant: for he has no estate until the condition be performed.20
There are some estates defeasible upon condition subsequent, that require a more peculiar notice. Such are
III. Estates held in vadio, in gage, or pledge; which are of two kinds, vivum vadium, or living pledge; and mortuum vadium, dead pledge, or mortgage.
Vivum vadium, or living pledge, is when a man borrows a sum (suppose 200£) of another; and grants him an estate, as, of 20£ per annum, to hold till the rents and profits shall repay the sum so borrowed. This is an estate conditioned to be void, as soon as such sum is raised. And in this case the land or pledge is said to be living: it subsists, and survives the debt; and, immediately on the discharge of that, results back to the borrower.21 But mortuum vadium, a dead pledge, or mortgage, (which is much more common than the other) is where a man borrows of another a specific (e.g. 200£) and grants him an estate in fee, on condition that if he, the mortgagor, shall repay the mortgagee the said sum of 200£ on a certain day mentioned in the deed, that then the mortgagor may re-enter on the estate so granted in pledge; or, as is now the more usual way, that the mortgagee shall re-convey the estate to the mortgagor: in this case the land, which is so put in pledge, is by law, in case of non-payment at the time limited, for ever dead and gone from the mortgagor; and the mortgagee’s estate in the lands is then no longer conditional, but absolute. But, so long as it continues conditional, that is, between the time of lending the money, and the time allotted for payment, the mortgagee is called tenant in mortgage.22 But, as it was formerly a doubt,23 whether, by taking such estate in fee, it did not become liable to the wife’s dower, and other encumbrances of the mortgagee (though that doubt has been long ago over-ruled by our courts of equity24) it therefore became usual to grant only a long term of years, by way of mortgage; with condition to be void on re-payment of the mortgage money: which course has been since continued, principally because on the death of the mortgagee such term becomes vested in his personal representatives, who alone are entitled in equity to receive the money lent, of whatever nature the mortgage may happen to be.
As soon as the estate is created, the mortgagee may immediately enter on the lands; but is liable to be dispossessed, upon performance of the condition by payment of the mortgage-money at the day limited. And therefore the usual way is to agree that the mortgagor shall hold the land till the day assigned for payment; when in case of failure, whereby the estate becomes absolute, the mortgagee may enter upon it and take possession, without any possibility at law of being afterwards evicted by the mortgagor, to whom the land is now for ever dead. But here again the courts of equity interpose; and, though a mortgage be thus forfeited, and the estate absolutely vested in the mortgagee at the common law, yet they will consider the real value of the tenements compared with the sum borrowed. And, if the estate be of greater value than the sum lent thereon, they will allow the mortgagor at any reasonable time to re-call or redeem his estate; paying to the mortgagee his principal, interest, and expenses: for otherwise, in strictness of law, an estate worth 1000£ might be forfeited for non-payment of 100£ or a less sum. This reasonable advantage, allowed to mortgagors, is called the equity of redemption: and this enables a mortgagor to call on the mortgagee, who has possession of his estate, to deliver it back and account for the rents and profits received, on payment of his whole debt and interest; thereby turning the mortuum into a kind of vivum vadium. But, on the other hand, the mortgagee may either compel the sale of the estate, in order to get the whole of his estate presently, or, in default thereof, to be for ever foreclosed from redeeming the same; that is, to lose his equity of redemption without possibility of recall. And also, in some cases of fraudulent mortgages,25 the fraudulent mortgagor forfeits all equity of redemption whatsoever. It is not therefore usual for mortgagees to take possession of the mortgaged estate, unless where the security is precarious, or small; or where the mortgagor neglects even the payment of interest: when the mortgagee is frequently obliged to bring an ejectment, and take the land into his own hands, in the nature of a pledge, or the pignus
of the Roman law: whereas, while it remains in the hands of the mortgagor, it more resembles their hypotheca, which was where the possession of the thing pledged remained with the debtor.26 But, by statute 7 Geo. II. c. 20. after payment or tender by the mortgagor of principal, interest, and costs, the mortgagee can maintain no ejectment; but may be compelled to reassign his securities. In Glanvil’s time, when the universal method of conveyance was by livery of seizin or corporal tradition of the lands, no gage or pledge of lands was good unless possession was also delivered to the creditor; “si non sequatur ipsius vadii traditio, curia domini regis hujusmodi privatas conventiones tueri non solet“: for which the reason given is, to prevent subsequent and fraudulent pledges of the same land; “cum in tali casu possit eadem res pluribus aliis creditoribus tum prius tum posterius invadiari“.27 And the frauds which have arisen, since the exchange of these public and notorious conveyances for more private and secret bargains, have well evinced the wisdom of our ancient law.
IV. A fourth species of estates, defeasible on condition subsequent, are those held by statute merchant, and statute staple; which are very nearly related to the vivum vadium before-mentioned, or estate held till the profits thereof shall discharge a debt liquidated or ascertained. For both the statute merchant and statute staple are securities for money; the one entered into pursuant to the statute 13 Edw. I. de mercatoribus, and thence called a statute merchant; the other pursuant to the statute 27 Edw. III. c. 9. before the mayor of the staple, that is to say, the grand mart for the principal commodities or manufactures of the kingdom, formerly held by act of parliament in certain trading towns,28 and thence this security is called a statute staple. They are both, I say, securities for debts, originally permitted only among traders, for the benefit of commerce; whereby the lands of the debtor are conveyed to the creditor, till out of the rents and profits of them his debt may be satisfied: and during such time as the creditor so holds the lands, he is tenant by statute merchant or statute staple. There is also a similar security, the recognizance in the nature of a statute staple, which extends the benefit of this mercantile transaction to all the king’s subjects in general, by virtue of the statute 23 Hen. VIII. c. 6.
V. Another similar conditional estate, created by operation of law, for security and satisfaction of debts, is called an estate by elegit. What an elegit is, an why so called, will be explained in the third part of these commentaries. At present I need only mention, that it is the name of a writ, founded on the statute29 of Westm. 2. by which, after a plaintiff has obtained judgment for his debt at law, the sheriff gives him possession of one half of the defendant’s lands and tenements, to be held, occupied, and enjoyed, until his debt and damages are fully paid: and, during the time he so holds them, he is called tenant by elegit. It is easy to observe, that this is also a mere conditional estate, defeasible as soon as the debt is levied. But it is remarkable, that the feudal restraints of alienating lands, and charging them with the debts of the owner, were softened much earlier and much more effectually for the benefit of trade and commerce, than for any other consideration. Before the statute of quia emptores,30 it is generally thought that the proprietor of lands was enabled to alienate no more than a moiety of them: the statute therefore of Westm. 2. permits only so much of them to be affected by the process of law, as a man was capable of alienating by his own deed. But by the statute de mercatoribus (passed in the same year31) the whole of a man’s lands was liable to be pledged in a statute merchant, for a debt contracted in trade; though only half of them was liable to be taken in execution for any other debt of the owner.
I shall conclude what I had to remark of these estates, by statute merchant, statute staple, and elegit, with the observation of Sir Edward Coke.32 “These tenants have uncertain interests in lands and tenements, and yet they have but chattels and no freeholds;” (which makes them an exception to the general rule) “because though they may hold an estate of inheritance, or for life, ut liberum tenementum, until their debt be paid; yet it shall go to their executors: for it is similitudinary; and though, to recover their estates, they shall have the same remedy (by assize) as a tenant of the freehold shall have, yet it is but the similitude of a freehold, and nullum simile est idem.” This indeed only proves them to be chattel interests, because they go to the executors, which is inconsistent with the nature of a freehold: but it does not assign the reason why these estates, in contradistinction to other uncertain interests, shall vest in the executors of the tenant and not the heir; which is probably owing to this: that, being a security and remedy provide for personal debts owing to the deceased, to which debts the executor is entitled, the law has therefore thus directed their succession; as judging it reasonable, from a principle of natural equity, that the security and remedy should be vested in them, to whom the debts if recovered would belong. And, upon the same principle, if lands be devised to a man’s executor, until out of their profits the debts due from the testator be discharged, this interest in the lands shall be a chattel interest, and on the death of such executor shall go to his executors:33 because they, being liable to pay the original testator’s debts, so far as his assets will extend, are in reason entitled to possess that fund, out of which he has directed them to be paid.
1. Co. Litt. 201
2. Litt. § 378.
3. Litt. § 379.
4. Co. Litt. 233.
5. 9 Rep. 50.
6. Co. Litt. 215.
7. Co. Litt. 201.
8. Show. Parl. Cas. 83. etc.
9. Co. Litt. 217.
10. Litt. § 325.
11. See pag. 109, 110, 111.
12. § 380. 1. Inst. 234.
13. 10 Rep. 41.
14. Ibid. 42.
15. Litt. § 347. Stat. 32 Hen. VIII. c. 34.
16. Ventr. 202.
17. Cro. Eliz. 205. 1 Roll. Abr. 411.
18. Co. Litt. 42.
19. Co. Litt. 206.
21. Ibid. 205.
22. Litt. § 332.
23. Ibid. § 357. Cro. Car. 191.
24. Hardr. 466.
25. Stat. 4 & 5 W. & M. c. 16.
26. Pignoris appellatione eam propriè rem contineri dicimus, quae simul etiam traditur creditori. At eam, quae sine traditione nuda conventione tenetur, propriè hypothecae appellatione contineri dicimus. Inst. l. 4. t. 6. § 7.
27. l. 10. c. 8.
28. See Book I. ch. 8.
29. 13 Edw. I. c. 18.
30. 18 Edw. I.
31. 13 Edw. I.
32. 1 Inst. 42, 43.
33. Co. Litt. 42.