The Principal Laws of England, Treatise · Part 15
Of condicions.
FOrasmoche as eueryevery estate is either pure, or condicionall, it were not amysse somwhat to make a declaration of the nature and efficacye of condicions. Wherfore ye shal vnderunder stande that of condicions, some be actuall condicions, & be called expresse condicions or cōdicions in dede, and other some be cōdiciōs in law whych be called also in latine, Condiciones tacitae, siue condiciones implicitae, bycause they be secretely implyed by the lawe and not expressed.
Condicions in dede be such as be knyt and annexed by expresse wordꝭ to the feffemente lease or graunter either in writing or without, as for exē ple if I infeffe a man in certayne landes reseruynge to me & to my heires so moche rente yerlye to be payde at suche a feast, and for defaute of payment, that it shalbe lawfull for me to reentre, thys is a feffement vponupon condicion of paymente. For the not payment of the rent shal dissolue the fefment. Semblably it is of gyftes in tayle, leases. &c.
But yf the condicion be, that for defaulte of paymente of the rent, it shal be lawfull for the feffoure to entre agayne in to the landes, and to holde them tyll he be satisfied of the rente, this condition not performed dothe not dissolue the feffement, but only gyueth to ye feffour an authorytie to reteine the landes (as it were by way of distresse) tyll he hath leuyed the arr…ragyes of the rent.
And ye shall obserue, that condicions be somtyme made to be performed on the feffees behalfe, and somtyme on the feffours behalfe.
On the feffees behalfe, as whan I infeffe you of landes vponupon cōdicion that ye shall do suche an acte, as to pay vntounto me or to myne heyres such annuall rent.
On the feffours behalfe, as whā I make a feffement vntounto you vponupon cōdicion that yf I pay or cause to be payde vntounto you before suche a daye suche a somme of money, than it shal be lawfull for me to entre agayne & retein my landes in my former estate In this case ye that be the feffee, are called tenaunt in morgage, which is as moch to saye as a dede gage, and it semethe that the cause why it is so called, is for asmoche as it is doubtfull whether the feffoure wyll pay at the daye prescribed suche somme of monye for the redemption of hys landes or no, for if he do not, his title or intresse in the landes thus gaged, & oppignorated is vtterly extinct with out all hope of renuynge.
Ye shall note that yf the morgageoure dyeth before the daye of payment, hys heyre maye redeme the lād very well euen as well as his auncestoure that morgaged the land might hauehave done although there be no mencion made of heyres in the wrytinge.
And yf whan the monye is lawfully by the morgageour or his heire profered, and the feffee refuseth to receyue the same, the feffoure or hys heyre maye entre, and then hath the feffee no remedy for his mony at the common lawe.
Ye shal vnderstād also that some condicions be vtterlye voyde in the lawe, and of none efficacy or strēgth, as if a feffement be made of landes in fee simple vponupon condiciō that the feffee shal not alien or put awey this same to none other, this condicion I saye is voyde, bycause the feffee is restrayned of hys hole poure that the lawe giueth in suche case vntounto hym, and whyche power and libertie, is in maner included in eueryevery feffement. Yet I maye abbrydge hym of parte of his powre, as to condicion wyth hym that he shal not aliene the landꝭ to suche a personne or suche. But of gyftes in tayle other wyse it is, for yf I gyue landes to a man and to the heyres of his body lawfully begottē vponupon condiciō that he nor his heires shall aliene the landes to none other persone, this condicion is good and effectuall in the lawe, and if he or his heyres contrary to the condicion do aliene them, than the gyuer or hys heyres maye very well entre and reteyne the lādes for euer, bicause this condicion doth stande wyth the forenamed statute of Westm̄ seconde whyche prohibiteth suche alienaciōs to be made.
Hitherunto I hauehave spoken of condicions in dede, now will I shew what be condicions in lawe that be annexed to any estates.
Knowe ye therfore, that if the office of a parker, or stewarde, or suche lyke office be graunted to a man for terme of his lyfe, though there be no cōdicion at al mēcioned in the graūt, yet the lawe speaketh a condicion in thys case, whiche is that yf the partye to whome suche offyce is gyuen shall not execute all poyntes apperteynynge vntounto hys office accordingly, it shalbe lawfull for the graūtour to entre and dyscharge hym of hys offyce and thys condicion is called a condicion in lawe.