tion by law; and regularly whatsoever is prohibited by the Bracton, lib. 1. fol. law, may be prohibited by condition, be it malum prohibitum, 13a. LITTLETON. Condition not to alien, a discontinuance: [COKE, 223 b.] 33 Ass. 11. 24. lib. 6. or malum in se. In ancient deeds of feoffment in fee there was most commonly a clause, quòd licitum sit donatori rem datam dare vel cendere cui voluerit, exceptis viris religiosis et Judais. ALSO, if lands be given in tail upon condition, that the [Sect. 362. 223 b.] tenant in tail nor his heirs (30) shall not alien in fee, (31) nor on a gift in tail, good as in tail, nor for term of another's life, but only for their own to alienations working lives, &c. such condition is good. (Note here, the double negative in legal construction shall not hinder the negative, viz. sub conditione quòd ipse nec hæredes sui non alienarent. And therefore the grammatical construction is not always in judg11. Vid. sect. 220. acc. ment of law to be followed.) And the reason is, for that (Cro. Car. 555. Hob. when he maketh such alienation and discontinuance of the Ante, 146 b. 10 Rep. intail, he doth contrary to the intent of the donor, for which 130. 4 Rep. 14.) the statute of W. 2. (32) cap. 1. was made (hereby it appeareth, that whatsoever is prohibited by the intent of any act 40. 41. Mildmay's case. 21 H. 6. 33. 13 H. 7. 23. 21 H.7. 191. Cro. Jac. 307. [COKE, 224a.] 10 H. 7, 11. Doct. & Stud. 124. 13 H. 7. 23. of parliament, may be prohibited by condition, as hath been said), by which statute the estates in tail are ordained (s). (SO) &c. added in L. and M. (32) cap. 1. added in L. and M. (S) And such alienations, working a discontinuance, are deemed in law tortious acts, which may well be restrained by proviso. But it is otherwise of an alienation by suffering a common recovery, or levying a fine within the statutes 4 H. 7. c. 24. and 32 H. 8. c. 36.; for this is no discontinuance, but a bar, and a liberty inseparable from the estate, as that tenant in tail may suffer a common recovery, cannot be restricted by any condition or proviso. Hob. 170. "For a condition annexed to an estate given, is a divided clause from the grant, and therefore cannot frustrate the grant precedent, neither in any thing expressed, nor in any thing implied, which is of his nature incident and inseparable from the thing granted." Ibid. Et vid. Sir Anthony Mildmay's case, 6 Co. 41. 1 Co. 86. 9 Co. 128 b, Moor. 601. Cro, Jac. 697. Vent. 322. Jones, 58. King v. Burchell, Ambl. 379. So if property is given to a man for his life, the donor cannot take away the incidents to a life estate. Property may be limited to a man to go over on a certain event, as bankruptcy, Dommett v. Bedford, 3 Ves. 149. 6 T. R. 684. Shee v. Hale, 13 Ves. 404; but while his property it must be subject to the incidents of property. Therefore, on a trust" to pay the dividends of stock from time to time into the proper hands of a man, or on his proper order or receipt, subscribed with his own hand, that they should not be grantable, transferrable, or otherwise assignable, by way of anticipation of any unreceived payment, or any part thereof; on his decease, the principal to be paid to such persons as in a course of administration would become entitled to his personal estate, and as if it had been his personal estate, and he had died intestate;" it was held to be an interest for life in the dividends, assignable under a commission of bankruptcy; with a limitation over of the principal to those entitled under the statute of distributions. Brandon v. Robinson, 18 Ves. 429. Et vid. Foley v. Burnell, 1 Bro. C. C. 274. As to conditions restraining lessees from alienation, sce n. (T) infra.-[Ed.] FOR it is proved by the words comprised in the same sta LITTLETON. tute, (33) that the will of the donor in such cases shall be [Sect.363. 224 a.] observed, and when the tenant in tail maketh (34) such discontinuance, he doth contrary to that, &c. And also in estates in tail of any tenements, when the reversion of the fee-simple, (S5) or the remainder of the fee-simple is in other persons, when such discontinuance is made, then the fee-simple (36) in the remainder is discontinued. And because (37) tenant in tail shall do no such thing against the profit (38) of his issues, and good right, such condition is good, as is aforesaid, (39) &c. 224b. "Against the profit of his issues." Hereby it appeareth, that to restrain tenant in tail from alienation against the profit of his issues, is good, for that agreeth with the will of the donor, and the intent of the statute (*). But a gift in tail may (*) 46 E. S. 4. be made upon condition, that tenant in tail, &c. may alien (1 Rol. Abr. 418.) for the profit of his issues, and that hath been holden to be good, and not restrained by the said statute, and seemeth to agree with the reason of Littleton, because in that case coluntas donatoris observetur, &c. and it must be for the profit of the issues. 223 b. As (6 Rep. 43 a. contra.) "But only for their own lives, &c." And yet if a man make a gift in tail, upon condition that he shall not make a lease for his own life, albeit the state be lawful, yet the condition is good; because the reversion is in the donor. if a man make a lease for life or years upon condition, that they shall not grant over their estate, or let the land to others, this is good (T), and yet the grant or lease should be lawful. (†) If a man make a gift in tail, upon condition (33) que fuit al entent de le fesance de meme l'estutute added in L. and M. and Roh. (34) tiel-un L. and M. and Roh. (55) ou remainder en fee-simple, not in L. and M. and Roh. (36) en la reversion ou le fee-sim ple, added in L. and M. and Roli. Roh. (38) de les issues not in L. and M. nor Roh. (39) &c. not in L. and M. nor Roh. (T) But such conditions are construed strictly in favour of the lessee. And therefore it has been determined, that if a lessee, who is restrained from alienation by a condition of this kind, assigns over his term with the consent of the lessor, such assignee may assign to any other person without a licence. Dumper's case, 4 Co. 119. Whichcot v. Fox, Cro. Jac. 398. And it is immaterial whether the license be general, as in Dumper's 21 H. 6. 33. 13 H. 7. 23. 24. 27 H. 8. 17. 19. 45. 31 H. 8. Dyer (3 Rep. 64.) (†) Dier. 33 H. 8. secus as to a common recovery. Vid. lib. 6. 40. 41. case. (1 Rep. 84. 1 Rol. Abr. 418.) that he shall not make a lease for three lives or 21 years according to the statute of 32 H. S., the condition is good; for the statute doth give him power to make such leases, which may be restrained by condition, and by his own agreement; for this power is not incident to the estate, but given to him collaterally by the act; according to that rule of law, quilibet potest renunciare juri pro se introductó. "When he maketh such alienation and discontinuance of the intail." And therefore if a gift in tail be made upon condition, that the donee, &c. shall not alien, this condition Sir Anth. Mildmay's is good to some intents, and void to some; for, as to all those alienations which amount to any discontinuance of the state tail (as Littleton here speaketh), or is against the statute of West. 2., the condition is good without question. But as to a common recovery, the condition is void; because this is no discontinuance, but a bar: and this common *recovery is not restrained by the said statute of West. 2. And therefore such a condition is repugnant to the estate tail; for it is to be 418. (1 Rol. Abr. 412. case, or particular as " to one, subject to the performance of the covenants in the original lease," Brummel v. Macpherson, 14 Ves. 173.: though, if a covenant not to assign contain an exception in favour of assignment by will, it seems that executors, claiming under the will, are not within the exception, so as to be at liberty to sell for payment of debts without a licence. Lloyd v. Crispe, 5 Tannt. 249. So an under-lcase has been adjudged not to be within a proviso, that the lessee shall not assign without licence. Crusoe, d. Bugby v. Blencowe, 3 Wils. 224. 2 Bl. Rep. 766. But where the words of the covenant were, that the lessee would not set, let, or assign over the whole or part of the premises without leave; it was held, that an under-lease amounted to a breach. Roe, d. Gregson v. Harrison, 2 T. R. 426. Et vid. Roe, d. Dingley v. Sales, 1 Maul. & S. 297. So where the 'proviso was, that the lease should be void "if the lessee assigned or otherwise parted with the indenture of leasc, or the premises thereby demised, or any part thereof, for the whole or any part of the term, without leave in writing;" it was held, that the words included an under-lease. Doe, d. Holland v. Worseley, 1 Camp. N. P. C. 20. It is, however, to be observed, that an assignment by operation of law will not amount to a forfeiture. Thus it has been determined, that a sale by execution was no forfeiture of a lease, in which was contained a covenant not to let, assign, or otherwise part with the indenture. Doe, d. Mitchinson v. Carter, & T. R. 57. Secus where the execution is in fraud of the covenant. 8 T. R. 300. And the same rule holds in the case of an assignment under a commission of bankruptcy. Doe v. Bevan, 3 Maul. & S. 353. Et vid. Doe, d. Cheere v. Smith, 5 Taunt. 795. But a landlord may guard against this contingency by a proviso for re-entry on the tenant's committing an act of bankruptcy whereon a commission shall issue; which has been held to be good. Roe v. Gailliers, 2 T. R. 135. If the lessor accept rent due after condition broken, with notice, it is a waver of the forfeiture. Goodright, d. Walter v. Davids, Cowp. 804. Whichcot v. Fox, Cro. Jac. 398. But a lessor who has a right of re-entry reserved on breach of a covenant not to underlet, does not, by waving his re-entry on one underletting, lose his right to re-enter on a subsequent underletting. Doe, d. Boscawen v. Bliss, 4 Taunt. 785. And equity will not relieve against a forfeiture by breach of a covenant not to assign. Hill v. Barclay, 18 Ves. 656.-[Ed.] observed, that to this estate tail there be divers incidents. 22 E. 3. 9. 17 El. 343. Dyer. First, to be dispunished of waste. Secondly, that the wife of the donee in tail shall be endowed. Thirdly, that the husband of a feme donee, after issue, shall be tenant by the curtesy. Fourthly, that tenant in tail may suffer a common recovery; and therefore if a man make a gift in tail, upon condition to restrain him of any of these incidents, the condition is repugnant and void in law. And it is to be observed, (*) that a collateral warranty (U), or a lineal with assets, in (*) 13 H. 7. 24 b respect of the recompence, is not restrained by the statute of Donis Conditionalibus, no more is the common recovery in respect of the intended recompence. And Littleton, to the intent to exclude the common recovery, saith, such alienation and discontinuance, joining them together. If a man before the statute of Donis Conditionalibus had made a gift to a man and to the heirs of his body, upon condition that after issue he should not have power to sell, this condition should have been repugnant and void (w). Pari ratione, after the statute a man makes a gift in tail, the law tacitè gives him power to suffer a common recovery; therefore to add a condition, that he shall have no power to suffer a common recovery, is repugnant and void. If a man make a feoffment to baron and feme in fee, upon condition that they shall not alien, to some intent this is good, and to some intent it is void; for to restrain an aliena- 10 H. 7. 11. 13 H. 7. tion by feoffment, or alienation by deed, it is good, because Sir Anthony Mildsuch an alienation is tortious and voidable; but to restrain may's case, ubi supra, (U) This must be understood of a collateral warranty before the statute of 4 Ann. c. 16.-For some observations as to the restraints, which at different periods have been imposed on the free alienation of property, and have the methods adopted to elude them, see the note to fol. 118 b. post, Chap. 33. Of Title by Alienation.-[ Ed.] (W) Lord Coke in another work observes, " that the tenant of lands intailed had before this statute a fee-simple conditional subsequent; for, albeit Britton (cap. 36.), who wrote before this statute, saith, that if any purchase to him and his wife, and to the heirs of them lawfully begotten, the donees have presently but an estate of freehold for the term of their lives, and the fee accrueth to their issue, &c. taking the condition to be precedent, yet had the donees at the common law a fee-simple conditional presently by the gift. For if lands had been given to a man and the heirs of his body issuing, and before issue he had, before this statute, made á feoffment in fee, the donor should not have entered for the forfeiture, but this feoffment had barred the issue had afterwards; which proveth that he presently by the gift had a fee-simple conditional.” 2 Inst. 353, -[Ed.] 23. Lib. 6. 41 b. in (Hob. 261. 1 Rol. Doct. & Stud. 124. On gift in tail with re- 23. 24. Dyer. 2 & 3 Phil. & Mar. 127 b. LITTLETON. [Sect. 364. 224 b.] Condition to re-enter on discontinuance of intail and death of issue, good. their alienation by fine is repugnant and void, because it is lawful and unvoidable. It is said, that if a man infeoff an infant in fee, upon condition that he shall not alien, this is good to restrain alienations during his minority, but not after his full age. It is likewise said, that a man by licence may give land to a bishop and his successors, or to an abbot and his successors, and add a condition to it, that they shall not, without the consent of their chapter or convent, alien, because it was intended a mortmain, that is, that it shall for ever continue in that see or house, for that they had it en auter droit, for religious and good uses. Put the case, that a man make a gift in tail to A., the remainder to him and to his heirs, upon condition that he shall not alien; as to the state tail the condition is good, for such alienation is prohibited, as hath been said, by the said statute. But as to the fee-simple, some say, it is repugnant and void, for the reason that Littleton hath yielded: and therefore some are of opinion, that this is a good condition, and shall defeat the alienation for the estate tail only, and leave the fee-simple in the alienee, for that the condition did in law extend only to the state tail, and not to the remainder. ALSO, a man may give lands in tail upon such condition, that if the tenant in tail or his heirs alien in fee, or in tail, or for term of another man's life, &c. and also, that if all the issue coming of the tenant in tail be dead without issue, that then it shall be lawful for the donor and for his heirs to enter, &c. And by this way the right (40) of the tail may be saved, (41) after discontinuance, to the issue in tail, if there be any (42); so as by way of entry of the donor or of his heirs, the tail shall not be defeated by such condition. (43) Quære hoc. And yet if the tenant in tail in this case, or (40) de-en in L. and M. and Roh. (41) tiel added in L. and M. and Rol. (42) issue added in L. and M. and Roli. (43) quære hoc, not in L. and M. nor Roh. |