grantee being once vested, is not thereby divested, but becomes absolute. (a)1 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. (b) 2 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. (c) But the relief, according to the modern English doctrine in equity, is confined to cases where the forfeiture has been the effect of inevitable accident, and the injury is capable of a certain compensation in damages. (d) In the case of Hill v. Barclay, (e) Lord Eldon said, relief might be granted against the breach of a condition to pay money, but not where any thing 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 *131 of equity cannot control the lawful contracts of parties, or the law of the land.1

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

(a) Co. Litt. 206, a, 208, b. 2 Blacks. Comm. 156. Parker C. J., in Mitchell v. Reynolds, 1 P. Wms. 189. Lord Chief Justice Treby, in Cary v. Bertie, 2 Vern. 339. (b) Dyer, 66, a, pl. 8. Moore, 11, pl. 40.

(c) Popham v. Bampfield, 1 Vern. 83.

(d) Rolfe v. Harris, 2 Price (Exch.) 207, note. Bracebridge v. Buckley, Ibid. 200. City Bank v. Smith, 3 Gill & Johns. 265. Jeremy's Eq. Jur. 475. Schermerhorn v. Negus, 1 Denio, 450.

(e) 18 Vesey, 56.

1 Taylor v. Sutton, 15 Geo. 103. Martin v. Ballou, 18 Barb. (N.Y.) 119.

2 Kellam v. Kellam, 2 P. & H. (Va.) 357.

3 Thompson v. Thompson, 9 Ind. 323.

1 By the civil law, a mere non-performance, within a stipulated time, does not, ipso facto, annul a contract, unless time is of the very essence of the contract. Holliday v. West, 6 Cal. 519.

2 A condition in a conveyance to a road corporation, that they should reasonably maintain

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. (a) If the grant be upon the condition that the grantee shall not commit waste, or not take the profits, or his wife not have her dower, or the husband his courtesy, the condition is repugnant and void, for these rights are inseparable from the estate in fee. (b) 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. (c) 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. (d) 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 (e) to be a valid condition.

(a) In a bequest to a daughter, with a proviso that if she attempted to sell or dispose of it, it should be void, the restriction was held to be void. Newton v. Reid, 4 Sim. 141. A restraint upon alienation in cases of leases in perpetuity, with a reservation of rent, and with covenants and conditions annexed, is tolerated and held valid in law. Vide supra, p. 124.

(b) Mildway's case, 6 Co. 40. Litt. sec. 360. Co. Litt. 206, b, 228, a. Stukely v. Butler, Hob. 168. Lord Kenyon, 8 Term Rep. 61.

(c) Mary Portington's case, 10 Co. 42, a.

(d) Co. Litt. 223, a.

(e) Litt. sec. 361. Co. Litt. 223.

their road, is not repugnant to the nature of their estate. Cornelius v. Ivins, 2 Dutch. (N. J.) 376. And see Grissom v. Hill, 17 Ark. 483. So a condition in a deed, that no ardent spirits shall be kept or sold on any part of the premises, is valid in law. Collins Manufacturing Co. v. Marcy, 25 Conn. 242. A general condition in restraint of marriage is not good, excepting with respect to the testator's widow. Lloyd v. Lloyd, 10 Eng. L. & Eq. 139; and see Dumey v. Schoeffler, 24 Missou. 170. It is not good when attached to the estate of a daughter. Williams v. Conden, 13 Missou. 211. See Hughes v. Boyd, 2 Sneed, 512. So illegal conditions in a grant are simply nugatory, and leave an absolute estate in the grantee. Barksdale v. Elam 30 Miss. (1 Geo.) 694.

8 Gleason v. Fayerweather, 4 Gray, 848.

4 So a condition not to "offer to sell" is not a lawful restraint upon actual alienation. Brothers v. McCurdy, 36 Penn. 407. But in Rockford v. Hackman, 10 Eng. L. & Eq. 64, it is laid down, that a proviso restraining alienation annexed to a life-estate, is void, as much as if annexed to an estate in fee.

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, (f) the * court looked with a *132 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 continue 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. (a) Whether the words amount to a condition, or a limitation, or a covenant, may be matter of construction, depending on the contract. The intention of the party to the instrument, when clearly ascertained, is of controlling efficacy;1 though conditions and limitations are not readily to be raised by mere inference and argument. (b) 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 133 the contract in the given case. A tender of performance

(f) 2 Caines, 345.

(a) Best C. J., in Doe v. Phillips, 9 Moore, 46. If words, both of covenant and condition, be used in the same instrument, both are allowed to operate. Bayley J., in Doe v. Watt, 8 Barn. & Cress. 308.

(b) Berkley v. Pembroke, Moore, 706. Cro. Eliz. 384. Argument of Pollexfen, in Carpenter v. Smith, Pollex. 70. 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, &c. The apt words of limitation are, while; so long as; until; during, &c. 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. Lord Cromwell's case, 2 Co. 69. Bacon's Abr. tit. Conditions, H.

1 Johnson v. Valentine, 4 Sandf. (N. Y.) 86. Woodruff v. Water Power Co., 2 Stockt. (N. J.) 489. But the intention must be clear and unquestionable. Worman v. Teagarden, 2 Ohio, N. S. 380.

at the day will save a condition,1 and if the tender be refused, the land may be discharged, as in the case of a mortgage, while the debt remains. (a)

(a) Litt. sec. 338. Co. Litt. 209, b. Jackson v. Crafts, 18 Johns. 110. Sweet v. Horn, 1 N. Hamp. 332.

1 And it is a general rule that any one who has an interest in the condition or in the lands to which it relates, may perform it. Wilson v. Wilson, 38 Maine, 18.

LECTURE LVIII.

ON THE LAW OF MORTGAGE.

A MORTGAGE is the conveyance of an estate, by way of pledge for the security of debt, and to become void on payment of it. The legal ownership is vested in the creditor; but, in equity, the mortgagor remains the actual owner, until he is debarred by his own default, or by judicial decree.

There is no branch of the law of real property which embraces a greater variety of important interests, or which is of more practical application. The different, and even conflicting views, which were taken of the subject by the courts of law and of equity, have given an abstruse and shifting character to the doctrine of mortgages. But the liberal minds and enlarged policy of such judges as Hardwicke and Mansfield, gave expansion to principles, tested their soundness, dispersed anomalies, and assimilated the law of the different tribunals on this as well as on other heads of jurisprudence. The law of mortgage, under the process of forensic reasonings, has now become firmly established on the most rational foundations.

In the examination of so extensive a title, I shall endeavor to take a just and accurate, though it must necessarily be only a very general view of the subject, under the following heads:

I. Of the general nature of mortgages:

II. Of the mortgagor's estate and equity of redemption.
III. Of the estate and rights of the mortgagee:

IV. Of foreclosure.

I. Of the general nature of mortgages.

(1.) Different kinds of mortgages.

The English law of mortgages appears to have been borrowed, in a great degree, from the civil law; and the Roman hypotheca corresponds very closely with the description of a mortgage in our law. The land was retained by the debtor, and the creditor was entitled