PART IT. 2, tenant of the demised close is the possession of the land

CH. 2, s. 7.

Ways created by deed.

Extinction

of right of way.

Devestment.

lord ().

Where there is no such necessity, a permanent right of way cannot, it seems, be created otherwise than by deed. And it has been held, that a bargain and sale is not a proper instrument for this purpose (s).

Where the owner of two adjoining closes has used for his convenience a way over one of them to the other, but there was no right of way before there was a unity of possession of the two closes, and a purchaser from him of the latter close either has an existing way to it, or can make a way to it from other land of his own, such purchaser cannot claim the use of the first mentioned way under the words, "together with all ways, easements, and appurtenances thereto appertaining, and with the same now or heretofore used, occupied, or enjoyed” (†).

Where a person has a right of way over another's close, and he purchases the close, his right of way is extinguished by the unity of seisin and possession, if it be only an easement; but if it is of necessity, it is not extinguished by unity of possession (u).

A right of way, being an incorporeal hereditament, cannot be devested (x).

(r) Gayford v. Moffatt, L. R. 4 Ch. App. 133.

(s) Burton, § 1167.

(t) Thomson v. Waterlow, L. R. 6 Eq. Cas. 36; Langley v. Hammond, L, R. 3 Exch. 161.

(u) 3 Cruise T. 24, § 23.

(x) 3 Cruise T. 24, § 21. As to ome other kinds of incorporeal hereditaments, such as offices, dignities, rights to running water and light, and rights to pews, the reader is referred to 2 Bl. Com. 36, 37; 3 Cruise T. 25, 26; and other works.

PART II.

Of the several kinds of Interests constituting the Subjects of Conveyancing.

TITLE I.

OF CONDITIONS AND LIMITATIONS ON WHICH INTERESTS

DEPEND, OR BY WHICH THEY MAY BE AFFECTED. (a)

any

PART II.
TITLE 1.

Preliminary

the distinctions between conditions and

"THE mixture of those things by speech which by nature are divided, is the mother of all error. To take away therefore that error which confusion breedeth, dis- remarks on tinction is requisite" (b). "A confusion of terms in science tends to confound the science itself, by destroying imitations. that precision of ideas, that distinction among its objects, which is the very groundwork of all knowledge. 'Nomina si perdas, certe distinctio rerum perditur'” (c).

The subject of the distinctions between conditions and limitations is highly scientific, and although it ṣavours strongly of grammatical or verbal criticism, yet there are many instances in which, if required to construe a will containing these forms of expression, a practitioner not well skilled in the subject would be in the most imminent

(a) This was, perhaps, as proper a place as any other for the subject of conditions and limitations, and was practically the most conve

nient.

(b) Hooker's Law of Eccles. Po lity, B. III. c. 3, s. 1.

(c) 1 Fearne, Coll. Jur. 238.

TITLE 1.

PART II. peril of forming a totally wrong opinion upon the effect of the instrument. And there are numberless cases in which, if a person were to set about, as a draftsman, to give effect to the intentions of a testator, without an accurate knowledge of this subject, he would be almost sure unconsciously to be sowing the seeds of doubt, litigation, and loss. It is impossible too strongly to impress upon the student and the unlearned practitioner the fact, that, in using words of condition, limitation, restriction, or contingency, the change of the smallest word, however unimportant it may at first sight appear, may, and often does, make the greatest possible difference; he is on the edge of distinctions so refined and shadowy as to be likely to escape his observation, and yet sufficiently settled and substantial in law to prove a source of complete loss of property to the objects of the testator's regard; he is treading upon most perilous ground; he is traversing a land of legal traps, snares, and pitfalls (d).

PART IJ.

T. 1, CH. 1.

Definition

of a condition.

Conditions, express and implied.

CHAPTER I.

OF THE SEVERAL KINDS OF CONDITIONS.

A CONDITION is a clause expressed or implied, providing or constructively importing that an estate shall be created, enlarged, diminished, or defeated, or the beneficial interest therein shall be suspended, in a given event (e).

Conditions, therefore, are either express, that is, ex

(d) For some illustrations of the importance of an accurate know. ledge of the distinctions on this subject, the reader is referred to the great Bridgewater case, Egerton v. Earl Brownlow, 4 Ho. of Lords, 1;

to the case of the Earl of Scar borough v. Savile, 3 Ad. & El. 897; and to Chap. V. of this Title.

(e) Smith's Executory Interests annexed to Fearne, § 9.

PART II.

T. I, CH. 1.

subsequent.

pressed in words, which are sometimes termed conditions in deed; or implied, that is, only annexed by construction of law, which are sometimes termed conditions in law (f). Some conditions are termed subsequent. A condition Conditions subsequent, properly so called, is a condition upon which an estate or interest is to be prematurely defeated or determined, and no other estate is to be created in its room. Regularly such a condition is annexed to an estate or interest created by a previous clause or instrument (g). The words "on condition," "provided," "so that," or, in the case of a lease for years, words of similar import, sufficiently denote a condition subsequent, and cause a cesser, without any words expressive of the intention of cesser in the event specified (h).

precedent.

There are other conditions which are called precedent, Conditions which are conditions upon which an estate or interest is to arise or be created. Regularly a condition precedent is not annexed to an estate or interest created by a previous clause or instrument (?), but it is usually and more properly the introductory part of the clause whereby an estate is created (k).

terms neces

There are, however, no precise technical terms required No technical to make a condition precedent or subsequent, even in a sary. deed, and much less in a will (1).

tions.

There are some conditions which are of the nature of Mixed condiconditions subsequent in regard to one estate, and of the nature of conditions precedent in regard to another estate.

These may be termed mixed conditions. They are of two

(f) Co. Litt. 201 a; 232 b; Pres. Shep. T. 117, 118.

(g) Co. Litt. 237 a, n. 1; Smith's Executory Interests annexed to Fearne, § 12; Egerton v. Earl Brownlow, 4 H. L. Cas. 182.

(h) See Litt. s. 328-331; Co. Litt. 204 a; and Smith's Executory

Interests annexed to Fearne, § 15
-19.

(i) Smith's Executory Interests
annexed to Fearne, § 13.

(k) Egerton v. Earl Brownlow, 4 H. L. Cas. 183; Cooke v. Turner, 14 Sim. 503.

(1) 6 Cruise T. 38, c. 16, § 3.

PART II.

T. 1, CH. 1.

Examples.

kinds: One kind of mixed condition is a destructive and creative condition, that is, a condition upon which an estate or interest is to be defeated, and another estate or interest is to arise in its room. And of destructive and creative conditions, one is called a conditional limitation. The other mixed condition is a destructive and accelerative condition, that is, a condition upon which an estate or interest is to be defeated, and another estate or interest in remainder is to be accelerated and take effect as if the former estate had expired according to the terms of its original limitation. This may be termed a condition of cesser and acceleration (m).

It may be useful to illustrate what has been said by examples; for, as Lord Coke remarks, "Examples do teach." Now, 1st. If A. devises that if B. do pay 1007., B. shall have an estate in fee, this is a condition precedent. 2ndly. If A. devises to B. an estate in fee, "provided," or "so that," or "on condition," that B. pay 100%., this is a condition subsequent of the concise or implied form. 3rdly. If A. devises to B. an estate in fee, but provides that if B. do not pay 1007, his estate shall cease, this is a condition subsequent of the unconcise or explicit form; for, instead of contenting himself with the use of the technical words "provided," " so that," or "on condition," which of their own nature and efficacy imply or import a condition for determining the estate on non-payment of the money, the testator provides for the ceasing of the estate in words actually expressive, and not merely techni

(m) See Smith's Executory Interests annexed to Fearne, § 14, 20— 22; Lord Truro's remarks in Egerton v. Earl Brownlow, 4 H. L. Cas. 1, 182-194; Clavering v. Ellison, 3 Drewry, 451, 469; 8 D. M. & G. 662; 7 H. L. Cas. 707; Micklethwait v. Micklethwait, 4 Com. B. 790;

Lambarde v. Peach, 4 Drew. 553; 8 W. R. 355. (L. J.) Turton v. Lambarde, 1 D. F. & J. 495; Gardiner v. Jellicoe, 12 C. B. (N. S.) 568; 11 Ho. of Lords Cas. 323. See also infra, pp. 61, 65, 66, as to conditional limitations.