annexes thereto a secret condition that the grantee shall duly execute his office.

Estates upon condition expressed in the grant itself are estates granted in fee-simple or otherwise, with an express qualification or provision annexed, whereby the estate shall either commence, be enlarged, or defeated, upon the performance or breach of such qualification or condition.

Conditions expressed are either precedent, such as must happen or be performed before the estate can vest; or subsequent, such as by the failure or non-performance of which an estate, already vested, may be defeated.

These express conditions, if they be impossible at the time of their creation, or afterwards, become impossible by act of God, or the act of the feoffa himself, or if they be contrary to law or repugnant to the nature of the estate are void. So, if they be conditions subsequent, that is to be performed after the estate is vested, the estate shall become absolute in the tenant; but if the condition be precedent, here the void condition being precedent, the estate which depends thereon is also void, and the grantee shall take nothing by the grant.

A condition in law is one impliedly annexed by law to the grant.

A condition in deed is one expressly mentioned in the deed or contract between the parties, and the object of them is either to avoid or to defeat an estate.

A condition in deed is either general or special; the former puts an end altogether to the tenancy on entry for the breach of the condition; the latter only authorizes the reversioner to enter on the land and take the profits, and hold the land by way of pledge until the condition be performed.

Persons who have an estate of freehold subject to a condition are seized, and may convey or devise the same, though the estate will continue defeasible, or subject to the condition till the condition be performed, destroyed or released.

A limitation in law is where an estate is so expressly confined and limited by the words of its creation that it can

not endure for any longer time than till the contingency happens upon which the estate is to fail.

The material distinction between a condition in a deed and a limitation in law consists in this: that a condition (in deed) does not defeat the estate, although it be broken, the law permitting it to endure unless the grantor, or his heirs or assigns enter and take advantage of the breach of the condition; but it is the nature of a limitation (in law) to determine the estate when the period of limitation arrives, without entry or claim, no act being requisite to vest the right in him who has the next expectant estate.

It is a rule of law that he who enters for a condition broken becomes seized of his first estate, and he avoids all intermediate charges and incumbrances.

An estate for years ceases as soon as the condition is broken, but an estate of freehold does not cease after condition is broken until entry or claim.

Words of limitation mark the period which is to determine the estate; words of condition render the estate liable to be defeated.

The one specifies the utmost time of continuance, and the other marks some event, which, if it takes place in the course of that time, will defeat the estate.

A conditional limitation is where a condition subsequent is followed by a limitation over to a third person in case the condition be not fulfilled, or there be a breach of it.

A collateral limitation gives an interest for a specified period, but makes the right of enjoyment to depend on some collateral event; as where an estate is limited to a man and his heirs, tenants of the manor of Dale.

Estates in gage, vadio, or pledge, are estates granted as a security for money lent, and are of two kinds: vivum vadium or living pledge; and mortuum vadium, or dead pledge, or mortgage.

Vivum vadium, or living pledge, is where a man borrows money of another, and grants him an estate at so much per annum, to hold till the rents and profits shall repay the

sum borrowed. This is upon condition, to be void on repayment of the loan, and the land or pledge is said to be living, as it subsists and survives the debt, and on discharge of the same the land results back to the borrower.

Mortuum vadium, dead pledge, or mortgage, is where a man borrows money of another and grants him an estate in fee on condition that if he, the mortgagor, shall repay the mortgagee the sum borrowed, on a certain day mentioned in the deed, that then the mortgagor may re-enter on the estate so granted in pledge; but in case of nonpayment at the time limited, the land put in pledge is, by law, forever dead and gone from the mortgagor, and the mortgagee's title is absolute.

As soon as the estate is created the mortgagee may immediately enter upon the land, but is liable to be dispossessed upon performance of the condition by payment of the mortgage money on the day limited. Hence it was usual for the mortgagor to hold the land till the day assigned for payment, when, in case of failure, whereby the estate becomes absolute, the mortgagee may enter upon it and take possession, without any possibility at law of being afterwards evicted by the mortgagor. But Courts of Equity interpose, and, though a mortgage be thus forfeited, and the estate absolutely vested in the mortgagee at common law, yet they will consider the real value of the tenements compared with the sum borrowed, and if the estate be of greater value than the sum lent thereon, they will allow the mortgagor any reasonable time to redeem his estate, which is called the equity of redemption. (6)

NOTE 6. A mortgage is a transfer of property as security for a debt. As between the parties in law, it is regarded as a transfer of the legal title, leaving in the mortgagor the right to redeem. In equity a mortgage is regarded as a lien or security for the debt, and the mortgagee's interest is only a chattel interest until foreclosure. At the present time it is customary for the mortgagor to remain in possession until there has been a breach of condition and foreclosure. The rents and profits of this mortgaged estate go to whoever is in possession, if the mortgagor, they belong to him absolutely; if the mortgagee, he must apply them to the expenses of management of the estate, then to paying the interest on the mortgage and finally to pay

ing off the debt covered by the mortgage. Payment of the mortgage debt or a tender of payment of the same by any one having an interest in the mortgaged premises and claiming under the mortgagor, works a discharge of the mortgage unless such payment be made by one liable as a surety or indorser of the mortgage note, or by one who has a right to redeem, and such payment was not made with the intention to discharge the mortgage. In such case the rights of the mortgagee are transferred to the person making such payment.

The laws provide for registration of mortgages, and a mortgage duly registered is constructive notice to all subsequent purchasers and incumbrancers, and gives to the recorded mortgage priority over any subsequently acquired interests.

Foreclosure was where the mortgagee either compelled the sale of the estate, in order to get the whole of his money immediately, or called upon the mortgagor to redeem his estate presently, or, indefault thereof, to be forever foreclosed from redeeming the same - that is, lose his equity of redemption. (7)

--

NOTE 7.-There are two kinds of foreclosures: (1), where the mortgagee brings suit to compel the mortgagor to pay the mortgage debt within a certain time, or on failure to do so, to lose forever his right of equity of redemption: (2), equitable foreclosure - where the court orders the land to be sold and the mortgage debt to be satisfied out of the proceeds of sale in the order of priority. If there be any surplus after so doing, it is returned to the mortgagor. A decree in foreclosure bars the interest of the mortgagor and all claiming under him who have been made parties to the suit.

Deeds of trust are conveyances in the nature of mortgages, where the owner and debtor transfers the property to a trustee, in trust to secure the creditor, and the trustee is authorized to sell the property conveyed if the debtor fails to pay the debt when due.

Estates by statute merchant and statute staple are very nearly related to vivum vadium, being also estates conveyed to creditors, in pursuance of certain statutes, till their profits shall discharge the debt.

Both are securities for money; the one entered into before the chief magistrate of some trading town, pursuant to the statute 13, Edward I., de mercatoribus, and thence called statute merchant; the other, pursuant to statute 27, Edward

III., before the mayor of the staple, whence called statute

staple.

Estates by elegit are another kind of conditional estates, created by operation of law, for the security and satisfaction of debts.

Elegit (he has chosen) is the name of a writ founded on the statute Westminster Second, by which, after a plaintiff has recovered judgment for his debt, at law, the sheriff gives him possession of one-half of the defendant's lands and tenements, to be occupied and enjoyed until his debt and damages are fully paid, and during the time he so holds them he is called tenant by elegit.

TIME OF THEIR ENJOYMENT. · Estates are either in possession or expectancy, the latter being created at the same time, and are parcel of the same estates as those upon which they are expectant.

Estates in possession, or executed, are those whereby a present interest passes; and, not being dependent on any subsequent circumstances, there is but little to be said of them, all hitherto considered being estates of this kind.

Estates in expectancy, or executory, are such as are to be enjoyed in the future, and depend on some subsequent circumstance or contingency.

They are of two kinds: remainder, created by act of parties; and reversion, created by act or operation of law.

An estate in remainder is an estate limited to take effect and be enjoyed after another estate is determined; as where lands are granted to A for twenty years, remainder to B in fee.

Both these interests are but different parts of one whole estate or inheritance; they are both created, and may subsist together the one in possession, the other in expectancy; hence no remainder can be limited after the grant of an estate in fee-simple, because the tenant in fee hath in him the whole of the estate.

The three rules of law to be observed in the creation of remainders are: first, there must necessarily be some