THUS stands the law, with regard to tenants by fufferance; and landlords are obliged in these cases to make formal entries upon their lands, and recover poffeffion by the legal process of ejectment and at the utmost, by the common law, the tenant was bound to account for the profits of the land fo by him detained. But now, by ftatute 4 Geo. II. c. 28. in cafe any tenant for life or years, or other person claiming. under or by collufion with fuch tenant, fhall wilfully hold over after the determination of the term, and demand made and notice in writing given, by him to whom the remainder or reverfion of the premises fhall belong, for delivering the poffeffion thereof; fuch perfon, fo holding over or keeping the other out of poffeffion, shall pay for the time he detains the lands, at the rate of double their yearly value. And, by ftatute 11 Geo. II. c. 19. in case any tenant, having power to determine his leafe, fhall give notice of his intention to quit the premises, and shall not deliver up the poffeffion at the time contained in fuch notice, he fhall thenceforth pay double the former rent, for fuch time as he continues in poffeffion. These statutes have almost put an end to the practice of tenancy by fufferance, unless with the tacit confent of the owner of the tenement. CHAPTER THE TENTH. OF ESTATES UPON CONDITION. ESIDES the feveral divisions of estates, in point of interest, which we have confidered in the three preceding chapters, there is also another species ftill remaining, which is called an estate upon condition; being fuch whose existence depends upon the happening or not happening of fome uncertain event, whereby the estate may be either originally created, or enlarged, or finally defeated. And these conditional estates I have chosen to referve till last, because they are indeed more properly qualifications of other eftates, than a diftinct species of themselves; seeing that any quantity of intereft, a fee, a freehold, or a term of years, may depend upon these provifional restrictions. Estates then upon condition, thus understood, are of two forts: 1. Eftates upon condition implied: 2. Eftates upon condition expressed: under which last may be included, 3. Estates held in vadio, gage, or pledge: 4. Estates by ftatute merchant or statute Staple: 5. Eftates held by elegit, I. ESTATES upon condition implied in law, are where a grant of an estate has a condition annexed to it infeparably, from it's effence and constitution, although no condition be expreffed 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 fecret condition, that the grantee shall duly execute his office, on breach of which condition a Co. Litt. 201 b Lilt. §. 378. , ༞་་, །,,༞༞! it is lawful for the grantor, or his heirs, to ouft him, and grant it to another perfon. For an office, either public or private, may be forfeited by mis-user or non-ufer, both of which are breaches of this implied condition. 1. By mif ufer, or abufe; as if a judge takes a bribe, or a park-keeper kills deer without authority. 2. By non-ufer, or neglect; which in public offices, that concern the administration of juftice, or the commonwealth, is of itself a direct and immediate caufe of forfeiture: but non-ufer of a private office is no cause of forfeiture, unless fome fpecial damage is proved to be occafioned thereby . For in the one cafe delay must neceffarily be occafioned in the affairs of the public, which require a conftant attention: but, private offices not requir ing fo regular and unremitted a fervice, the temporary neglect of them is not neceffarily productive of mischief: upon which account fome fpecial lofs must be proved, in order to vacate thefe. Franchifes alfo, being regal privileges in the hands of a fubject, are held to be granted on the fame condition of making a proper ufe of them; and therefore they may be loft and forfeited, like offices, either by abuse or by neglect. UPON the fame principle proceed all the forfeitures which are given by law of life eftates 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 ftranger in fee-fimple: this is, by the common law, a forfeiture of their feveral eftates; being a breach of the condition which the law annexes thereto, viz. that they fhall not attempt to create a greater estate than they themselves are entitled to. 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 eftate is determined by the breach of the condition, "that they fhall not commit "felony," which the law tacitly annexes to every feodal donation. c Litt. §. 379. Co. Litt, 233, с 9 Rep. 50. BOOK II. II. AN eftate on condition expreffed in the grant itself, is where an estate is granted, either in fee-fimple or otherwise, with an exprefs qualification annexed, whereby the estate granted fhall either commence, be enlarged, or be defeated, upon performance or breach of such qualification or condition. These conditions are therefore either precedent, or fubfequent. Precedent are fuch as must happen or be performed before the eftate can veft or be enlarged: fubfequent are fuch, by the failure or non-performance of which an estate already vefted 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 eftate his vested in A. Or, if a man grant to his leffee for years, that upon payment of a hundred marks within the term he fhall have the fee, this alfo is a condition precedent, and the fee-fimple paffeth not till the hundred marks be paid. But if a man grant an estate in fee-simple, reserving to himself and his heirs a certain rent; and that, if fuch rent be not paid at the times limited, it fhall be lawful for him and his heirs to re-enter, and avoid the eftate: in this cafe the grantee and his heirs have an estate upon condition subsequent, which is defeasible if the condition be not strictly performed. To this clafs may alfo be referred all base fees, and fee-fimples conditional at the common law. Thus an estate to a man and his heirs, tenants of the manor of Dale, is an eftate on condition that he and his heirs continue tenants of that manor. And fo, 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 ftatute of Westminster the fecond, it remains, as at common law, a fee-fimple on condition that the grantee has heirs of his body. Upon the fame principle depend all the determinable eftates of freehold, which we mentioned in the eighth chapter: as durante viduitate, &c: these are estates upon condition that the grantees do not marry, and the like. And, on the breach of any of thefe g Co. Litt. 201. h Show. Parl. Caf. 83, &c. i Co. Litt. 217. * Litt. §. 325. 1 See pag. 109, 110, 111. fubfequent fubfequent conditions, by the failure of these contingencies; by the grantees's not continuing tenant of the manor of Dale, by not having heirs of his body, or by not continuing fole; the estates which were refpectively vefted in each grantee are wholly determined and void. A DISTINCTION is however made between a condition in deed and a limitation, which Littleton " denominates also a condition in law. For when an estate is fo exprefsly confined and limited by the words of it's 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, fo long as he is parfon of Dale, or while he continues unmarried, or until out of the rents and profits he shall have made 500l. and the like ". In fuch case the eftate determines as foon as the contingency happens, (when he ceases to be parfon, marries a wife, or has received the 500l.) and the next fubfequent estate, which depends upon fuch determination, becomes immediately vefted, without any act to be done by him who is next in expectancy. But when an estate is, ftrictly speaking, upon condition in deed (as if granted exprefsly upon condition to be void upon the payment of 407. by the grantor, or fo that the grantee continues unmarried, or provided he goes to York, &c.) the law permits it to endure beyond the time when fuch contingency happens, unless the grantor or his heirs or affigns take advantage of the breach of the condition, and make either an entry or a claim in order to avoid the estate P. Yet, though strict words of condition be used in the creation of the eftate, if on breach of the condition the estate be limited over to a third perfon, and does not immediately revert to the grantor or his reprefentatives, (as if an estate be granted by A to B, on condition that within two years B intermarry with C, and on failure thereof then to D and his heirs) this the law conftrues to be a limitation and not a I Inft. 234. m §. 380. n 10 Rep. 41. 。 Ibid. 42. P Litt. §. 347. Stat. 32 Hen. VIII. condition : |