cannot inherit that which his ancestor had aliened in his lifetime. The right of entry is gone forever. Perkins, §§ 830-833; Lit. § 347.

It may be suggested, however, that if the deed is void and conveys no title to the grantee, the right of entry still remains in the grantor and is transmissible to his heir. This argument is inconsistent with the authorities already cited, which sanction the doctrine that alienation by a grantor of an estate on condition before breach extinguishes the condition; it also loses sight of the principle on which the doctrine rests. The policy of the law is to discourage maintenance and champerty. Neither party to a conveyance which violates the rule of law can allege his own unlawful act for the purpose of securing an advantage to himself. The grantor of a right of entry cannot be heard to say that his deed was void, and that the right of entry still remains in him, because this would be to allow him to set up his own turpitude in engaging in a champertous transaction as the foundation of his claim. His deed is therefore effectual to estop him from setting up its invalidity as the ground of claiming a right of entry which he had unlawfully conveyed. Nor can the grantee avail himself of the grant of the right of entry for a like reason. He cannot be permitted to set up a title which rests upon a conveyance which he has taken in contravention of the rules of law. Both parties are therefore cut off from claiming any benefit of the condition. The grantor cannot aver the invalidity of his own deed, nor can the grantee rely on its validity. Both being participators in an unlawful transaction, neither can avail himself of it to establish a title in a court of law. It is always competent for a party in a writ of entry to allege that a deed, under which an adverse title is claimed, although duly executed, passed no title to the grantee, either because the grantor was disseised at the time of its execution, or because the deed for some other reason did not take effect. Stearns on Real Actions, 226.

We know of no statute which has changed the rules of the common law in this commonwealth in relation to the alienation of a right of entry for breach of a condition in a deed. By these rules, without considering the other grounds of defence insisted upon at the trial, it is apparent that the demandant cannot recover the demanded premises: not as heir, because he did not inherit that which his father had conveyed in his lifetime; nor as purchaser, because his deed was void. Exceptions overruled.10

10 Rights of entry upon a fee for condition broken cannot be devised. Southard v. Central R. R. Co., 26 N. J. Law, 13; Upington v. Corrigan, 151 N. Y. 143, 45 N. E. 359, 37 L. R. A. 794; Methodist Church v. Young, 130 N. C.'S, 40 S. E. 691. Contra: Austin v. Cambridgeport Parish, 21 Pick. (Mass.) 215. See, also, Gray v. C., M. & St. P. Ry. Co., 189 Ill. 400, 59 N. E. 950.

Under the Wills Act of 1 Vict. c. 26, § 3, which makes devisable "all rights of entry for conditions broken, and other rights of entry," a right of entry for condition broken is devisable even before a breach has occurred and passes under a residuary devise all real estate. Pemberton v. Barnes, L. R. [1899] 1 Ch. 544. Where the act provided that the right of entry was devisa

SECTION 3.-MODE OF PERFECTING A FORFEITURE

CO. LIT. 214 b: Hereupon is to be collected divers diversities. First, between a condition that requireth a re-entry, and a limitation that ipso facto determineth the estate without any entry. Of this first sort no stranger, as Littleton saith, shall take any advantage, as hath been said. But of limitations it is otherwise. As if a man make a lease quousque, that is, until I. S. come from Rome, the lessor grant the reversion over to a stranger, I. S. comes from Rome, the grantee shall take advantage of it and enter, because the estate by the express limitation was determined.

So it is if a man make a lease to a woman quamdiu casta vixerit, or if a man make a lease for life to a widow, si tamdiu in pura viduitate viveret. So it is if a man make a lease for a 100 years if the lessee live so long, the lessor grants over the reversion, the lessee dies, the grantee may enter, causa qua supra.'

11

2. Another diversity is between a condition annexed to a freehold, and a condition annexed to a lease for years.

For if a man make a gift in tail or a lease for life upon condition, that if the donee or lessee goeth not to Rome before such a day the gift or lease shall cease or be void, the grantee of the reversion shall never take advantage of this condition, because the estate cannot cease before an entry; but if the lease had been but for years, there the grantee should have taken advantage of the like condition, bcause the lease for years ipso facto by the breach of the condition without any

ble and transmissible by deed "although the contingencies upon which such right, estate, or interest are to vest may not have happened," it was regarded as clear that the right of entry was devisable before a breach. Southard v. Central R. R. Co., 26 N. J. Law, 13.

On the descent of rights of entry, see post, p. 184, note 41, on "Descent of Contingent Remainders."

11 "Apt words of limitation are quamdiu, dummodo, dum, quousque, durante, &c., v. 14 E. 2, Grant 92, a rent granted out of the manor of Dale, quamdiu the grantor shall dwell there. Vide 7 E. 4, 16, quamdiu fuer' amicabiles, 27 H. 8, 29 b; 3 E. 3, 15 a; and 3 Ass. p. 9. A man leases land dummodo the lessee shall pay twenty pounds, 37 H. 6, 27. A lease is made to a woman dum sola fuerit, 9 E. 4, 29 b. A man made a feoffment in fee until, s. quosque the feoffer had paid him certain money, 21 Ass. p. 18. Vide 13 El. Dy. 290, acc' Pl. Com. 414; 35 Ass. p. 14. A lease for years, if the lessee shall so long live, 14 H. 8, 13. A lease of lands till he be promoted to a benefice, &c., Lit. chap. Condit. 90, during the coverture. All these, and many others, are words of limitation, by force of which, the estate is determined without entry or claim: words of condition are sub conditione, ita quod, si contingat, proviso, &c. Vide Lit. c. Condit. 74 and 75; 3 H. 6, 7 a, b; 27 H. 8, 15, Dy., 28 H. 8, 13; 4 M. Dy. 139; 15 El. Dy. 318; 32 H. 8, Dy. 47. But these words ad affectum, ea intentione, ad solvendum, or other the like, do not make a condition in feoffments or grants, unless it be in the king's case, or in a last will, as it was resolved Pasc. 18 El. by all the justices of the common pleas." Mary Portington's Case, 10 Co. 35 a, 41 b.

entry was void; for a lease for years may begin without ceremony, and so may end without ceremony; but an estate of freehold cannot begin nor end without ceremony. And of a void thing a stranger may take benefit, but not of a voidable estate by entry.

LEAKE, PROPERTY IN LAND (2d Ed.) p. 170: "A lease for years may begin without ceremony, and so may end without cereinony," being at common law a mere matter of contract. Therefore a condition to defeat it does not require an actual entry, unless expressly stipulated.12 According to the older cases, a condition that in a certain event a lease should cease or be void was construed as a conditional limitation, and the term treated as ipso facto void; but the later cases show that in these circumstances the condition is construed to render the lease voidable at the option of the lessor, who must give notice, or do some other act showing his intention to avoid it.13 If the view expressed in the earlier cases had prevailed, it would have permitted the lessee to put an end to the term by his own default. And where a right of re-entry is expressed to be given upon an antecedent notice, the election of the lessor to resume possession is finally exercised by notice given, and it is unnecessary to make an actual entry.14

12 Doe v. Baker, 8 Taunt. 241; Co. Lit. 214 b. R. 5 H. L. 134, 151, 154.

See Liddy v. Kennedy, L.

13 Rede v. Farr, 6 M. & S. 121; Hartshorne v. Watson, 4 Bing. N. C. 178; Moore v. Ullcoats Mining Co., [1908] 1 Ch. 575; notes to Duppa v. Mayo, 1 Wms. Saund. 442.

14 Liddy v. Kennedy, L. R. 5 H. L. 134.

NOTE ON THE DEMAND FOR RENT REQUIRED AS A CONDITION PRECEDENT TO FORFEITURE FOR THE NON-PAYMENT OF RENT.-Walker, C. J., in Chadwick v. Parker, 44 Ill. 326: Where the cause of forfeiture was default in the payment of rent, the common-law mode of forfeiture seems to have required "a demand of the precise amount of rent due, neither more nor less; that it be made upon precisely the day when due and payable by the terms of the lease or if a further day was specified within which it might be paid to save the forfeiture, then upon the last day of that time. It was required to be made at a convenient hour before sunset, upon the land, at the most conspicuous place; as, if it were a dwelling-house, at the front door, unless some other place was named in the lease, when it was necessary to make it at that place. It was required that a demand should be made in fact, should be pleaded and proved, to be availing. The tenant, however, had the entire day within which to make payment." Pages 330-331. See, also, 2 Taylor, Landlord and Tenant (9th Ed.) §§ 493, 494; McQuesten v. Morgan, 34 N. H. 400.

For statutory modes of forfeiture of leases, see Kales, Future Interests, §§ 32-40a.

SECTION 4.-RELIEF AGAINST FORFEITURE

I. LICENSE

DUMPOR'S CASE.

(Court of Queen's Bench, 1603. 4 Coke, 119b.)

In trespass between Dumpor and Symms, upon the general issue, the jurors gave a special verdict to this effect: the president and scholars of the College of Corpus Christi in Oxford, made a lease for years in anno 10 Eliz. of the land now in question, to one Bolde, proviso that the lessee or his assigns should not alien the premises to any person or persons, without the special license of the lessors. And afterwards the lessors by their deed anno 13 Eliz. licensed the lessee to alien or demise the land, or any part of it, to any person or persons quibuscunque. And afterwards, anno 15 Eliz. the lessee assigned the term to one Tubbe, who by his last will devised it to his son, and by the same will made his son executor, and died. The son entered generally, and the testator was not indebted to any person, and afterwards the son died intestate, and the ordinary committed administration to one who assigned the term to the defendant. The president and scholars, by warrant of attorney, entered for the condition broken, and made a lease to the plaintiff for twenty-one years, who entered upon the defendant, who re-entered, upon which re-entry this action of trespass was brought: and that upon the lease made to Bolde, the yearly rent of 33s. and 4d. was reserved, and upon the lease to the plaintiff, the yearly rent of 22s. was only reserved. And the jurors prayed upon all this matter the advice and discretion of the court, and upon this verdict judgment was given against the plaintiff. And in this case divers points were debated and resolved: First, That the alienation by license to Tubbe, had determined the condition, so that no alienation which he might afterwards make could · break the proviso or give cause of entry to the lessors, for the lessors' could not dispense with an alienation for one time, and that the same ' estate should remain subject to the proviso after. And although the proviso be, that the lessee or his assigns shall not alien, yet when the lessors license the lessee to alien, they shall never defeat by force of the said proviso, the term which is absolutely aliened by their license, inasmuch as the assignee has the same term which was assigned by their assent: so if the lessors dispense with one alienation, they thereby dispense with all alienations after; for inasmuch as by force of the lessor's license, and of the lessee's assignment, the estate and interest of Tubbe was absolute, it is not possible that his assignee,

REASEN

who has his estate and interest, shall be subject to the first condition and as the dispensation of one alienation is the dispensation of all others, so it is as to the persons, for if the lessors dispense with one, all the others are at liberty. And therefore it was adjudged, Trin. 28 Eliz. Rot. 256 in Com' Banco, inter Leeds and Crompton, that where the Lord Stafford made a lease to three, upon condition that they or any of them should not alien without the assent of the lessor, and afterwards one aliened by his assent, and afterwards the other two without license, and it was adjudged that in this case the condition being determined as to one person (by the license of the lessor) was determined in all. And Popham, Chief Justice, denied the case in 16 Eliz. Dyer, 334. That if a man leases land upon condition that he shall not alien the land or any part of it, without the assent of the lessor, and afterwards he aliens part with the assent of the lessor, that he cannot alien the residue without the assent of the lessor: and conceived, that is not law, for he said the condition could not be divided or apportioned by the act of the parties) and in the same case, as to parcel which was aliened by the assent of the lessor, the condition is determined; for although the lessee aliens any part of the residue, the lessor shall not enter into the part aliened by license, and therefore the condition being determined in part, is determined in all. And, therefore, the Chief Justice said, he thought the said case was falsely printed, for he held clearly that it was not law. Nota, reader, Paschæ 14 Eliz. Rot. 1015 in Com' Banco, that where the lease was made by deed indented for twenty-one years of three manors, A. B. C. rendering rent, for A. £6, for B. £5, for C. £10, to be paid in a place out of the land, with a condition of re-entry into all the three manors, for default of payment of the said rents, or any of them, and afterwards the lessor by deed indented and enrolled, bargained and sold the reversion of one house and forty acres of land, parcel of the manor of A., to one and his heirs, and afterwards, by another deed indented and enrolled, bargained and sold all the residue to another and his heirs; and if the second bargainee should enter for the condition broken or not, was the question: and it was adjudged, that he should not enter for the condition broken, because the condition being entire, could not be apportioned by the act of the parties, but by the severance of part of the reversion, it is destroyed in all. But it was agreed, that a condition may be apportioned in two cases. 1. By act in law. 2. By act and wrong of the lessee. By act in law, as if a man seised of two acres, the one in fee, and the other in borough English, has issue two sons, and leases both acres for life or years rendering rent with condition; the lessor dies, in this case by this descent, which is in act in the law, the reversion, rent, and condition are divided. 2. By act and wrong of the lessee, as if the lessee makes a feoffment of part, or commits waste in part, and the lessor enters for the forfeiture,