Slike strani
PDF
ePub

SECTION 30. FEE-CONDITIONALS.

A fee-conditional was an early species of estate at common law which was in effect a life estate granted to the first taker which upon the birth of issue would be enlarged into an estate in fee-simple.

The object of the enlargement of the estate was for the purpose of providing for such issue, but immediately upon such birth the first taker acquired the full right of deposition of the property and could defeat both the right of his child and the purpose of the grant. For this reason the fee-conditional was abolished by the statute of DeDonis (1285), and the estate in fee-tail substituted for it.

SECTION 31. ESTATES ON CONDITION.

An estate on condition is an estate which is created, enlarged or defeated by the happening or not happening of some event. As already stated in the previous section, estates on condition are divided into estates on condition precedent and estates on condition subsequent.

SECTION 32. CONDITIONS PRECEDENT. A condition precedent is one, upon the fulfillment of which, the estate comes into existence. In the case of such a condition, the grantee has no rights prior to the fulfillment of the condition, when he acquires an absolute estate.

If the condition is illegal the estate can never vest. Where a smaller estate will be enlarged into a greater one upon the fulfillment of a certain condition, such condition is a condition precedent as to such enlarged estate.

i See Section 19.

SECTION 33. ESTATES ON CONDITION SUBSEQUENT.

An estate upon condition subsequent is one which will be terminated by the happening or not happening of a certain event. The condition may be either one involving the use of the land or it may be a collateral one. The happening of the event also may depend upon the act or will of the holder of the conditional estate or may be independent of his control. For example, the condition might be that a certain part of the property should not be built upon; that the holder of the estate could not remove from a certain place; or that a certain event entirely beyond the control of the holder of the estate should not take place.

If the condition is illegal or against public policy, the condition is disregarded and the estate becomes an absolute one. A striking contrast is to be observed in this respect between the effect of illegality on a contract of this kind and the effect of illegality upon a condition precedent.

Upon the breach of a condition subsequent there must be an entry by the person entitled to the reversionary estate in order to work forfeiture. There can never be a remainder after an estate upon condition subsequent.?

The law at the present time looks with very great "The second thing is, that no

of the land to another in fee, entry nor re-entry (which is all

and the tenant for term of life one) may be reserved or given

attorn, etc., if the rent be after to any person, but only to the

behind, the grantee of the refeoffor, or to the donor, or to

version may distrain for the the lessor, or to their heirs, and

rent, because that the rent is insuch re-entry cannot be given

cident to the reversion; but he to any other person. For if a

may not enter into the land and man letteth land to another

oust the tenant, as the lessor for term of life by indenture,

might have done, or his heirs rendering to the lessor and to

if the reversion had been conhis heirs a certain rent, and for

tinued in them, etc. And in default of payment a re-entry,

this case the entry is taken etc., if afterward the lessor by

away forever; for the grantee a deed granteth the reversion

of the reversion cannot enter, up of suits; and therefore lessor not his heirs cannot en

disfavor upon conditions subsequent (which have the effect of unsettling land titles) and the tendency at the present time is to substitute restrictions for those conditions affecting the use of the land, and to do away with collateral conditions subsequent.

SECTION 34. RESTRICTIONS. A restriction is a limitation upon the use of property contained in the deed creating this estate. Restrictions differ from conditions subsequent in that their breach will not work a forfeiture of the estate. A breach of a restriction may be redressed by a suit for damages, or restrained by an injunction.

SECTION 35. ESTATES ON LIMITATION.

An estate on limitation is one created to continue until the happening of a certain event. In the creation of an estate upon limitation the words which mark the termination of the estate are used in connection with the words of grant. Estates upon limitation are generally created by the use of such words as "while," "as long as," "until,” etc. SECTION 36. COMPARISON BETWEEN ESTATES UPON LIMITATION AND ESTATES UPON CONDI

TIONS SUBSEQUENT An estate upon limitation differs from an estate upon conditions subsequent in three respects; (1) No causa qua supra. And the

nothing in action, entry, or reter; for if the lessor might

entry, can be granted over; for enter, then he ought to be in

80, under colour thereof, prehis former state, etc. and this

tended titles might be granted might not be, because he hath

to great men, whereby right aliened from him the rever

might be trodden down, and sion.'

the weak oppressed, which the "Here Littleton reciteth one of

common law forbiddeth, as the maxims of the common law; men to grant before they be in and the reason hereof, is, for

possession. Coke Vol. II, avoiding of maintenance, sup

P. 84-85 pression of right, and stirring See Chapter IV on Remainder.

entry is required in order to work a forfeiture of an estate upon limitation upon the happening of the event which marks its termination; (2) There may be a remainder after an estate upon limitation but not after an estate upon condition subsequent. The reason for this is that in the case of a remainder after an estate upon limitation the remainder is not considered to vest in derogation of the preceding estate. (3) If the condition in the case of the condition subsequent is the happening of an illegal act, or an act which is considered against public policy, the condition is void and the estate becomes absolute. In the case of an estate upon limitation, the restriction on the continuation of the estate is not disregarded because it is against public policy or involves an illegal act. Thus in a grant to A for life on condition that he shall not marry, the condition will be disregarded, as being against public policy, and A will take an absolute life estate; while a grant to A'as long as he remains single” is good and A's marriage would mark the termination of the estate.

SECTION 37. CONDITIONAL LIMITATIONS.

"A conditional limitation partakes of the nature both of a condition and a remainder. It is to be observed, that at the common law, whenever either the whole fee, or a particular estate, as an estate for life, or in tail, was first limited, no condition or other quality could be annexed to this prior estate which would have the double effect of defeating the estate and passing the land to a stranger; for, as a remainder, it was void, being an abridgement or defeasance of the estate first limited; and, as a condition, it was void, as no one but the donor of the heirs could take advantage of a condition broken, and the entry of the donor or his heirs unavoidably defeated the livery, upon which the remainder depended. On these principles it was impossible, by the old law, to limit by deed, if not by will, an estate to a stranger, upon any event which went to abridge or determine an estate previously limited. But the expediency and utility of such limitations, assisted by the revolution effected in our law by the statute of Uses, at length forced them into use, in spite of the maxim of law, that a stranger cannot take advantage of a condition. These limitations are now become frequent, and their mixed nature has given them the appellation of conditional limitations; they so far partake of the nature of conditions, as they abridge or defeat the estate previously limited; and they are so far limitations, as, upon the contingency taking place, the estate passes to a stranger. Such is the limitation to A for life, in tail, or in fee, provided, that when C returns from Rome, it shall from thenceforth remain to the use of B in fee. Of late, however, it has been frequently argued, that the difference between a remainder, and what is generally understood by a conditional limitation, is merely verbal.”'

Appendix to Coke Institutes.

« PrejšnjaNaprej »