a condition precedent, and therefore cannot pass until the condition to be performed; and that here Littleton of a condition precedent doth (before the performance thereof) make it subsequent and, for proof of their opinion, they avouch many successions of authorities, that no fee-simple should pass before the condition performed. 31 E. 1. tit. Feoffments and Faits 119. A. letteth a manor to B. for term of twenty years, and the deed would, that after the term of twenty years, that B. and his heirs should hold the said manor for ever by twelve pounds rent, A. taketh a wife, and dieth before the term be past, the wife of A. demands dower. Aud there Wayland, chief justice, saith, that the fee and the franktenement doth repose in the person of the lessor until the term be past, for before that the condition is not performed; for if the lessor had aliened the land before the end of the term, B. should not recover by a writ of assise, and by the death of the lessor the chief lord should have had the wardship of the heir of the lessor; and by judgment the wife recovered dower, for the termor could not have fee, all which be the words of that book.

12 E. 2. tit. Voucher 265. I. letteth lands to B. for eight years, and if the lessor pay not a hundred marks to the lessee at the end of the term, that then he shall have fee: by the non-payment of the money, the fee and frank-tenement accrueth to him, and before, the lessee cannot be impleaded in a præcipe, neither shall he vouch.

(d) 7 E. 3. 10. I. letteth certain lands to N. for the term of ten years, rendering a hundred shillings by the year to him and his heirs, and granted by deed, that if he held the lands over to him and his heirs, that he should render by the year £20: the lessor, during the term, brought an action of debt for the rent. And there Herle, chief justice of the common pleas, giveth the rule, that during the term the lessce had but for years, and therefore the action of debt maintainable.

(e) 44 E. 3. tit. Attaint. 22. & 43 Ass. p. 41. D. and A. enfeoff the two plaintiffs in the assise, they let those lands to S. for term of nine years upon condition, that if the plaintiff in the assise pay a hundred shillings to S. during the term,

that S. shall have it but for nine years, and if they pay it not, that S. shall have fee. S. continueth his estate by one year, and after granteth his estate to one H., which H. continueth his estate by two years, and granteth the residue of the term to R., and within the term of nine years the plaintiffs in the assise pay the hundred shillings to S. R. continueth his possession after the term, and infeoffeth D. which infeoffeth the Lord Furnival, against whom and others, without any claim or entry made by the plaintiffs, after the nine years ended, he brought his assise, and after adjournment recovered.

(f)'10 E. 3. 39 & 40. R. doth let certain lands to I. for (ƒ) 10 E. 3. 39. 40. term of twelve years, and in surety of his term he maketh

a

10 Ass. 15. tit. Ass. 161. Pl. Com.

charter of the fee upon condition, that if he be disturbed Browning's case 135. within the term, that he cannot hold the lands until the end of the term, that then he shall hold the lands to him and his heirs for ever, and seisin was delivered upon the one charter and the other. R. within the term ploughed and sowed the land, and took the profits against the will of I., and I. upon this disturbance had fee and recovered in assise.

6 R. 2. tit. Quid juris clamat. 20. If a lease be made for 6 R. 2. tit. Quid juris a term upon condition, if the lessee pay a certain sum within clamat. 20.

the term, that then he shall have fee, if he pay the money he

shall have the fee, but if before the day of payment the lessor levieth a fine to another, the lessee ought to attorn by protestation, and if he pay the money, the conusee shall have it, and the conusee shall have the rent reserved until the day of payment; and if land be letten for term of years upon condition, that if the lessee be ousted within the term by the lessor, that he shall have fee, if he be ousted, he shall have fee by the condition, and notwithstanding he shall not have any assise, but he must have possession after the ouster, and of this he shall have an assise.

And generally the books (*) are cited that make a diversity (*) 15 H. 7. 1a, between a condition precedent and a condition subsequent.

14 H. 8. 18. 20, 3 H. 6. 6 b.

281. Pl. Com. 272.

And lastly, they cite Dyer, (g) 10 Eliz, 281. and in Say (g) Dyer. 10 Eliz. and Fuller's case, Pl. Com. 274., the opinions of Dyer and Browne.

ter of Estates for

Years.

Notwithstanding all this, there are those that defend the opinion of Littleton, both by reason and authority. By reason, for that by the rule of law a livery of seisin must pass a present freehold to some person, and cannot give a freehold Vid. Litt. in the chap- in futuro, as it must do in this case, if after livery of seisin made the freehold and inheritance should not pass presently, but expect until the condition be performed; and therefore if a lease for years be made to begin at Michaelmas, the remainder over to another in fee, if the lessor make livery of seisin before Michaelmas, the livery is void, because, if it should work at all, it must take effect presently, and cannot expect.

(1 Rep. 130. 2 Rep. 67 a. Post, 378 a.)

217 b. (2 Rep. 55.)

(h) Hill & Grange, Pl. Com. 171.

Secondly, they say that when the lessor makes livery to the lessee, it cannot stand with any reason that against his own livery of seisin a freehold should remain in the lessor, seeing there is a person able to take it. But if a man by deed make a lease for years, the remainder to the right heirs of I. S., and the lessor make livery to the lessee secundum formam charta, this livery is void, because during the life of I. S. his right heir cannot take (for nemo est hæres viventis), and in that case the freehold shall not remain in the lessor, and expect the death of I. S. during the term; for although I. S. die during the term, yet the remainder is void, because a livery of seisin cannot expect.

And they say further, that seeing all the books aforesaid prove that such a condition is good, and that the livery made to the lessee is effectual, by consequence the freehold and inheritance must pass presently or not at all.

And it is not rare, say they, in our books, that words shall be transposed and marshalled so as the feoffment or grant may take effect. (h) As if a man in the month of February make a lease for years, reserving a yearly rent, payable at the feasts of Saint Michael the Archangel, and the Annunciation of our Lady, during the term, the law (in this case of reservation) shall make transposition of the feasts, viz. at the feasts of the Annunciation, and of Saint Michael the Archangel, that the rent may be paid yearly during the term. And

(i) 10 E. S. Seignior Stafford's case, lib. 8. fol. 74. Pl. Com.

so it is (i) in case of a grant of an annuity. And further they take a diversity in this case between a lease for life and a lease for years. For in case of a lease for life with such a Nichol's case, 487. condition to have fee, they agree that the fee-simple passeth not before the performance of the condition, for that the livery may presently work upon the freehold; but otherwise it is in the case of a lease for years. Also they take a diversity between inheritances that lie in grant and inheritances that lie in livery. For they agree that if a man grant an advowson for years upon condition, that if the grantee pay twenty shillings, &c. within the term, that then he shall have fee, the grantee shall not have fee until the condition be performed. Et sic de similibus. But otherwise it is where livery of seisin is requisite, and therefore if the king make such a lease for years upon such a condition, the fee-simple shall not pass presently, because in that case no livery is made.

They also make several answers to the authorities before cited. For as to the case in 31 E. 1. they say that either the case is misreported, or else the law is against the judgment. For the case is but this, that a man make a lease of a manor to B. for twenty years, and that after the twenty years B. shall hold the manor to him and his heirs by twelve pound rent, and (as it must be intended) maketh livery of seisin, in this case it is clear (say they) that B. hath a feesimple maintenant, for there is no condition precedent in the

case.

As for the case in 12 E. 2., the case (as it is put in the Seignior Stafford's book) is, that John de Marre made a charter to John de Bur- case, ubi supra. ford of fee-simple, and the same day it was covenanted between them that John de Burford should hold the same tenements for eight years, and if he did not pay a hundred marks at the end of the term, that the land shall remain to John de Burford and his heirs. In which case, say they, there is direct repugnancy; for, first, the charter of the fee-simple was absolute, and after the same day it was covenanted between them, &c. this covenant, being made after the charter, could neither alter the absolute charter, nor upon a condition precedent give him a fee-simple, that had a fee-simple. before.

་

16

PL. Com. in Nichol's case, 487.

(k) 10 E. 3. 51.

To all the other books, viz. 7 E. 3. 10 E. 3. 10 Ass. 44 E. 3. 43 Ass. and 6 R. 2. they say, that being rightly understood they are good law; for in some of these books, as namely 10 E. 3. 10 Ass. &c. it appeareth that there was a charter made in surety of the term, which, say they, must be intended thus, viz. a man maketh a lease for years, the lessee enters and the lessor makes a charter to the lessee, and thereby doth grant unto him, that if he pay unto the lessor a hundred marks during the term, that then he shall have and hold the lands to him and to his heirs.

In this case, say they, there need no livery of seisin, but doth enure as an executory grant by increasing of the estate, and in that case, without question, the fee-simple passeth not before the condition performed.

And therefore Littleton warily putteth his case of an estate made all at one time by one conveyance, and a livery made thereupon.

For Littleton himself in the section before saith, that in that case without a livery nothing passeth of the freehold and inheritance.

And this diversity (say they) is proved by books; and thereupon they cite (k) 10 E. 3. 54. In a writ of dower the tenant vouched to warranty; the vouchee as to part pleaded that the husband was never seised of any estate whereof she might be endowed; as to the residue the tenant pleaded that he leased to the husband in gage upon condition, that if the lessor paid ten marks at a certain day, that he should re-enter, and if he failed of payment, that the land should remain to the husband and his heirs, which must be intended to be done by one entire act, and pleaded that he paid the money at the day, which is allowed to be a good plea: Ergo, the fec-simple passed by the livery, otherwise the plea had amounted that the husband was never seised, &c. And say they, that it cannot be intended that the judges should be of one opinion in Trinity term, and of another opinion in Michaelmas term in the same year, and therefore (they hold)