PART II. T. 1, CH. 3: waiver. "Where any actual waiver of the benefit of covenant any or condition in any lease on the part of any lessor, or Restriction his heirs, executors, administrators, or assigns, shall be of effect of proved to have taken place after the passing of this Act in any one particular instance, such actual waiver shall not be assumed or deemed to extend to any instance of any breach of covenant or condition other than that to which such waiver shall specially relate, nor to be a general waiver of the benefit of any such covenant or condition, unless an intention to that effect shall appear" (s. 6). 186. Compulsory alienations, as upon bankruptcy, are not within a mere general prohibition of alienation (e). 187. against Equity will interpose to prevent a forfeiture upon Relief non-performance of a condition at or within a certain time, forfeiture. where the case admits of compensation being made for such non-performance (ƒ). Thus, where there is no gift over or substituted disposition in the event of non-compliance with the testator's injunction, and that injunction relates only to the payment of money, equity will relieve against forfeiture, on subsequent payment of principal, interest, and costs (g). 188. (e) Burton, § 854. (ƒ) 2 Cruise, T. 13, c. 2, § 29, 34; Co. Litt. 237 a, n. 1. (g) 11 Jarm. & Byth. by Sweet, 900, (a); Barnardiston v. Fane, 2 VOL. 1. G PART II. T. 1, Cn. 4. Who may tage of a CHAPTER IV. OF TAKING ADVANTAGE OF THE BREACH OF CONDITIONS. Ir is a rule of the common law, that no one can take advantage by entry of the breach of a condition expressed, take advan- but parties and privies in right and representation; as condition. heirs of natural persons, as regards real estate; executors, or administrators of natural persons, as regards chattel interests; and the successors of bodies politic; unless the effect of the condition is not merely to give a right of entry, but to render the estate ipso facto void. So that privies and assignees in law, as lords by escheat and persons in remainder, cannot enter for an express condition broken, where it does not ipso facto avoid the estate (a). Nor, by the common law, could grantees and assignees of the reversion. But by stat. 32 Hen. 8, c. 34 grantees and assignees of the reversion may enter for breach in their time of conditions for payment of rent or performance of some act beneficial to the estate, but not of collateral conditions (b). And, by the same statute, a grantee of part of the estate of the reversion may take advantage of a condition (c). But a grantee of part of the land in which the reversion subsists could not; because a condition, being entire, could not be apportioned by the act of the grantor, although it may be apportioned by act of law, or by the wrongful act of a lessee (d). 189. (a) 2 Cruise T. 13, c. 2, § 44, 45; Co. Litt. 214 a, b; 215 a, b; 1 Pres. Shep. T. 149; Burton, § 856. (b) 2 Cruise T. 13, c. 2, § 48, 49; Co. Litt. 215 a, b; 1 Pres. Shep. T. 149, 151-3; Burton, § 856. (c) 2 Cruise T. 13, c. 2, § 49; Co. Litt. 215 a. (d) Id. 56, 57; Co. Litt. 215 a. T. 1, CH. 4. By the stat. 22 & 23 Vict. c. 35, s. 3, it is enacted, that PART II. "where the reversion upon a lease is severed, and the rent or other reservation is legally apportioned, the assignee of each part of the reversion shall, in respect of the apportioned rent or other reservation allotted or belonging to him, have and be entitled to the benefit of all conditions or powers of re-entry for non-payment of the original rent or other reservation, in like manner as if such conditions or powers had been reserved to him as incident to his part of the reversion in respect of the apportioned rent or other reservation allotted or belonging to him." 190. Even where lands are descendible to some other person as heir, none but the heir at common law can enter for a condition broken; but such entry will be for the benefit of the other person. Thus, if a person seised of lands in right of his mother, makes a feoffment in fee of them upon condition, and dies, and afterwards the condition is broken, the heir on the part of the father shall enter. But when he has entered, the heir on the part of the mother may enter on him (e). So, if a condition is annexed to an estate held in gavelkind, and is broken, the heir at common law must enter for the breach; but, after such entry, all the younger sons shall enjoy the estate with him (f). 191. The heir cannot avail himself of a condition broken in the lifetime of his ancestor; for the right of taking advantage of a condition is merely personal (g). 192. In the case of conditions implied or in law, privies and assignees in law may enter for conditions broken in their time (h). 193. re-entry is Where it is provided, that, on breach or performance of Where a the condition, as the case may be, the estate shall be void, necessary. (e) 2 Cruise T. 13, c. 2, § 46. (f) 2 Cruise T. 13, c. 2, § 47. (g) 1 Pres. Shep. T. 150. (h) 2 Cruise T. 13, c. 2, § 45; 1 Pres. Shep. T. 115. T. 1, CH. 4. PART II or that the grantor shall or may re-enter, there, if the estate is an estate of freehold, it can only be made void in either case by entry. But if it is for years, it will, in the first case, be ipso facto void; although, if the condition. is for the benefit of the reversioner, the estate will only be void at his option (i). But where the Crown is entitled to land upon the breach of a condition, an office countervails an entry (k). And in case of advowsons, rents, commons, remainders, and reversions, where no entry is possible, a claim must be made at the church or upon the land, as the case may be (). 194. Where notice of a condition must be given. Effect of entry for a express con When a devise is made to the heir at law, notice is necessary to be given to him, before a forfeiture can attach for a breach of a testamentary condition; because the heir has a title paramount the will, that is, by descent, and he is presumed to enter and claim in that right, and not to know anything of the devise or of the condition until he receives notice. But where a devise is made to a stranger, as he has no title except under the will, so he is presumed to have knowledge of the condition (m). 195. Where a person enters for a breach of an express conbreach of an dition subsequent, the estate becomes void ab initio, and dition. as a general rule, the person who enters is again seised of his original estate in the same manner as if he had never conveyed it away. And hence all rights and incidents annexed to the estate defeated, such as dower and curtesy, with all charges, incumbrances, and interests created out of it, are likewise defeated (n). But, where the wife or husband had an estate in fee, subject to be divested by a shifting use or executory devise, and died before the shift (2) 1 Pres. Shep. T. 139; 2 Pres. (k) 2 Cruise T. 13, c. 2, § 39. 2 Jarm. Wills. 2nd ed. 12. (n) 2 Cruise T. 13, c. 2, § 50-52; Co. Litt. 202 a, and 202 b, n. 2; Burton, $355, 739; 1 Pres. Shep, T. 121, 155. T. 1, CH. 4. ing use or executory devise took effect, it was held that the PART II. surviving husband in the first case was entitled to curtesy, and that the surviving wife in the second case was entitled to dower (o). 196. entry for a If a man enters for breach of a condition in law, he Effect of shall avoid all charges and acts done after the forfeiture breach of a was occasioned (p). 197. (0) Burton, § 355. (p) 1 Pres. Shep. T. 155. condition in law. |