Conditio

I. A condition. Conditio strait, benigne, secundum Terbornm tanda; odiosa autem, quae statnm yerborum proprietatem est which creates an estate is to be the intention of the words; but an an estate is to be taken strictly, of the words. Conditio dicitnr, qui potest tendere ad esse aut non said to be where any thing is annexed tain event, which may tend to create cedens) adimpleri debet priusquam tion precedent ought to be fulfilled

A stipulation, proviso, condition, q. v. Conditio sine qua non. A condition without which (a thing can) not (exist); an indispensable prerequisite. Melior est conditio. See Delictum, In pari, etc. Condition, l. state, status, predicament.' 3. A restriction placed upon the use of a thing.* Some quality annexed to real estate by vu-tue of which it may be defeated, enlarged, or created upon an uncertain event; also, a quality annexed to a personal contract or agreement.^ The uncertain event itself; and the clause, in the instrument, which expresses the contingency. An estate upon condition is such that its existence depends upon the happening or not happening of some uncertain event, whereby the estate may be either originally created, or enlarged, or finally defeated.^ An estate upon condition implied in law is where a grant of an estate has a condition annexed to it inseparably, from its essence and constitution, although no condition is > See 1 Kent, 101; 3 id. 103; 3 Wall. 28, 170, 514, 603; 5 id. 1, 28; 11 id. 268, 308; 106 U. S. 316. "Lake Merced Water Co. v. Cowles, 31 Ca). 217 (1866). " See Dunlap v. Mobley, 71 Ala. 105 (1881). • See Ayling v. Ki-amer, 133 Mass. 13 (1883), cases. '[Selden v. I'ringle, 17 Barb. 465 (1854); Laberee t'. Carleton, 53 Me. 213 (1865). • 2 Bl Com. 152, 154, 840. See also 4 Kent, 152; Adams 593-94 (1880); 31 Conn. 475; 39 expressed in words; as, that proper use shall be made of a franctiise... An estate on condition expressed in the grant itfeelf is where an estate is granted with an- express qualification annexed, whereby the estate shall either commence, be enlarged, or defeated, upon performance or breach of such qualification or condition.! As respects realty, a "charge" is a devise with a bequest out of the subject-matter; and a charge upon the devisee personally is an estate on condition.'' A " condition " is made by a grantor, and only he or his heir can take advantage o£ a breach. ^ A " covenant " is made by both grantor and grantee. ' A " limitation " ends the estate without entry or claim; and a stranger may take advantage of the determination." Conditional. Subject to, or dependent upon, a condition; opposed to unconditional: as, a conditional — contract, conyeyance, fee, guaranty, indemnity, liability, obligation, pardon, sale, qq. v. Words which create a condition are "provided," " on account of," "if," and other words expressive of the intention. "Upon condition " is appropriate, but does not of necessity create an estate upon condition.^ Condition precedent. Such condition as must happen or be performed before the estate can vest or be enlarged. Condition subsequent. A condition upon the failure or non-performance of which an estate already vested may be defeated.' Thus, if an estate for life be limited to A upon his marriage with B, the marriage is a condition precedent. Examples of conditions subsequent are: a grant of a fee-simple with a right to re-enter upon non-pay- ' ment of the rent, reserved; an estate held upon the condition that the grantee does not remarry, or continues to live at a certain place. A " condition precedent " is one which must happen before either party becomes bound by the contract. A " condition subsequent " is one which follows the performance of the contract, and operates to defeat and annul it upon subsequent failure of either party to comply with the condition. ^ Whether a qualification, restriction, or stipulation is a condition precedent or subsequent depends upon 1 2 Bl. Com: 152, 154, 340. 2 See 4 Kent, 601; 12 Wheat. 498. s See 2 Bl. Cora. 165; 4 Kent, 122, 187; 21 Wall. 63; 3 Gray, 142;, 41 N. J. L. 76; 19 N. Y. 100. ■"2 Coke, Litt. 70; 2 Pars. Contr. 31; 6 Barb. 386. «16 Me. 158; 3 Gray, 142; 5 Neb. 407. ' Stanley v- Colt, 5 Wall. 165 (1866); Sohier v. Trinity Church, 109 Mass. 19 (1871); Casey v. Casey, 55 Vt.,620 (1883). '2 Bl. Com. 1B4; Towle v. Remsen, 70 N. Y. 309 (1877). « Story, Contr. §§40, 42-43; Jones v. United States, 96 U. S. 27-29 (1877), cases; Eedman v. Mtna, Fire Ins. the intention of the parties, as gathered from the whole instrument,^ A condition precedent must be literally observed; a condition subsequent, tending, as it does, to destroy the estate, is not favored, and is construed strictly. ^ No one can take advantage of a " condition subsequent" annexed to an estate in fee but the grantor or his heir, or the successor of an artificial person; and if they do not see fit to assert their right to enforce aforfeiture on that ground, the title remains unimpaired in the grantee... In what manner the reserved right of the grantor must be asserted depends upon the character of the grant. If it be a private grant, that right must be asserted by entry or its equivalent. If the grant be a public one, it must be asserted by judicial proceedings authorized by law, the equivalent of an inquest of office at common law, or there must be some legislative assertion of ownership of the property on account of a breach of the condition:. ^ Failure to perform a " condition precedent " bars relief; but equity will relieve against a forfeiture under a " condition subsequent " upon the principle of compensation, when that principle can be applied, giving damages, if damages should be given, and the amoimt is ascertainable.. If a "condition subsequent" be possible at the time of making it, and becomes afterward impossible to be complied^ with, by the act of God, the law, or the grantor, the estate of the grantee, being once vested, is not thereby divested, but becomes absolute.* Where an act is to be performed by the plaintiff before the accruing of the defendant's liability under his contract, the plaintiff must prove either his performance of such condition precedent, or an offer to perform it which the defendant rejected, or his readiness to fulfill the condition until the defendant discharged him from so doing, or prevented the execution of the matter which the contract required him to perform... Conditions precedent may be waived by the party in whose favor they are made. Wherb the conditions are dependent and of the essence of the contract, the performance of one depends upon the performance of another, and the prior condition must be first performed. In cases where either party may be compensated for a breach, »the conditions are mutual and independent.* When a condition subsequent is broken, relief may be had upon equitable terms; but when the condition is a precedent one, and neither fulfilled nor waived, no right or title vests, and equity can do nothing for the party in default: as, where an assured is to pay the premium before the assurer shall be bound." ' Lowber v. Bangs, 2 Wall. 736, 746 (1864), cases; 70 N. Y. 311; 2 Bl. Com. 156-37; 4 Kent, 130. = 2B1. Com. 154; 4Kent,125; 3Pet,374; 9Wheat.841. = Schulenberg v. Haniman, 31 Wall. 63 (1874), cases, Field, J. < Davis V. Gray, 16 Wall. 229 (1872), cases, Swayne, J. 6 Jones V. United States, 98 U. S. 27-29 (1877), oases, Clifford, J.; Lowber v. Bangs, 2 Wall. 738, 746 (1864), cases; Euch v. Rock Island, 97 U. S. 693, 696 (1878), cases; The Tornado, 108 id. 852 (1883). Repugnant conditions. Such conditions as tend to the subversion of the estate; such as totally prohibit the alienation or use of property conveyed. Conditions which prohibit alienations to particular persons, or for a limited period, or subject to particular uses, are not subversive ot the estate: they do not destroy or limit its alienable or inheritable character. Hence, property may be conveyed in tee and yet be exempted from use as a slaughter-house, soap-factory, distillery, livery-stable, tannery, machine-shop, or place where intoxicating liquors are manufactured, sold, or stored.' Conditions are also distinguished as: affirmative or positive, prescribing the doing of a positive act, and opposed to such as are negative; as collateral, regarding some act incidental to another act; as compulsory, expressly requiring the doing of an act; as consistent, agreeing with each other or others, and opposed to such as are inconsistent; as copulative, for the doing of related things, and opposed to such as are single, for the performance of one thing only; as disjunctive, for the doing of one of several things; as express, stated in express words, and opposed to such as are implied, imposed by inference of law; as possible, performable, however difficult, and opposed to such as are impossible, or not performable. Although words in a deed or devise are sui Hcient to create a condition, the breach of which would forfeit the estate, the courts lean against such a construction, and hold that words which may be treated as a covenant or restriction do not amount to a condition.' See After; Condonation; Contract; Defeasance; If; Performance; Promise; Provided; Representation, 1; Sale: Term, 2; Trade; When.

/. A condition. Affirmative condition: which requires something to happen, or be done, like positive condition; negative or restrictive, one which requires something not to be done. Condition casuelle, fr.; one which depends on chance, as opposed to potestative, which depends on the will of the party, or mizte, which depends on the will of the party and some third person, or some other event, conjoined. Copulative condition: all of several to happen of several things. absolutely requiring expressed, in deed, ticularly expressed, as by common intendment. existing, not now created by the chief lord on a sible, repugnant: sistent with the object or suspensive: one obligation, as distinguished Condition: v. Conditional Conditional fee. One heirs; changed by the Conditional limitation. the Statute of Uses to tain event, thereby grantee. Distinguished fee, where the grantor the breach of condition, also from a limitation, be granted until the not cut short, but termmation; v. Limitation. Conditionem testium rent, non mortis petency of the witnesses at the [testator's] death.

Lat. A condition. Bract. fol. 19, 47, et passim. See Condition, Conditio benejicialis qua sUUum construit, benigne, secundum verborum intentionem est interpretanda; odiosa autem, qucs statum destruit, stride, secundum verborum proprietatem est accipienda, A beneficial condition which creates an estate is to be construed favorably, according to the intention of the words; but an odious condition which destrojs an estate, is to be taken strictly according to the precise meaning of the words. 8 Co, 90. Shep, Touch. 134. Conditio dicitur, cum quid in casum interturn, qui potest tendere ad esse aut non esse, confer tur, A condition is said" to be where any thing is annexed having reference to an uncertain event, which may tend to create or destroy it. Co. Litt. 201. Conditio (prcecedens) adimpleri debet priusquam seqnatur effectus. A condition precedent ought to be fulfilled before the effect can follow. Co. Litt. 201.