Warner v. Harding, 1 N.C. 69, 1 Mart. 69 (1793)

1793 · United States Circuit Court for the District of North Carolina

1 N.C. 69, 1 Mart. 69

*Warner vs. Harding.

Antea, p. 24.

HEDLEY, Serj. The condition is given to the Queen, and is well performed: she has gained the fee simple, and the lease is good. The reasons to the contrary are, that by act of Parliament he forfeited all his lands &c. and that all conditions are not given to the Queen. The Templers’ case 17 E. 2. Provisions given to the Hospitaliers to be held in the same manner as the Templers &c. Still frankalmoign is not transferred by these general words. So by the general words of all the hereditaments &c. an action is not given; as in the Marquis of Winchester’s case. I agree that in all these cases in which use is made of general words containing diversa genera, every thing does not pass. But the statute is to be construed reasonably, and shall be expounded as the King’s patents are. Therefore if the King grant by his letters patent, under the great seal, all mines, the patentee shall not have royal mines. Then when all possessions are given, there is a right of entry and a right of action, but the right of action is not given by the general words of an act of Parliament. Now the word condition is a species and not a genus; and the 26 H. 8. enacting that such performs shall forfeit all the lands, tenements and hereditaments, in which the offender shall have any estate of inheritance, there is not a difference between an inheritance in fee or in tail, while there are but these two estates of inheritance, and the statute says, that he shall forfeit all the lands in which he has an estate of inheritance; and a condition is as simple as an inheritance. There are conditions which are incident to the reversion, and conditions in gross; and there are conditions to be performed by the feoffor, and others by the feoffee, which are accidental. Feoffment on condition that if the Chief Justice does such a thing, he shall enter; and afterwards the feoffor is attainted of treason and the condition given to the King; he (the King) cannot perform it. But if the Chief Justice does, the land shall go to the King. Feoffment on condition that, if the feoffor goes to Rome, he may enter; and afterwards he is attainted of treason, then perform the condition, the King shall have the land, although he could not have performed, the condition. So the word condition is a species, given to the King by the statute. Therefore in the Duke of Norfolk’s *case, the condition was not given to the King, and admitting that the condition was given, he had not the power of performing it. But in this case it was not a condition, but a power of revoking the use; and such a power is not given to the King by the attainder of the party. For if the power of revoking the uses was given, that of making a new declaration of the uses must follow. But, as the case is, the power of performing the condition is given to the King, for the substance of the condition is not the tender and delivery of the ring.

Bridgeman, Serj.

The declaration of the intention, with which the ring ought to be tendered, ought to be made by William Shelley, because the words are: ipso Gulielmo Shelley tunc declarante. And if these words are superfluous and idle, then the rule is expressio, earum &c. for if those words ipso Gulielmo Shelley tunc declarante were not in the conveyance, still he ought to declare his intention, when he makes the tender. As the King has power to tender the ring, he has also power, to declare the intention, as in Englefield’s case. The statute gives the condition to the King, to tender the ring; therefore he may declare his intention in tendering it. He, who pays the money in performance of the condition, has power to declare, the intention; and it is not personal, for it may be made by attorney, and the statute made the King an attorney to do that which the person attainted might have done by attorney. Feoffment on condition, that if the feoffee does not give a ring, on such a day, declaring that it is in performance of the condition, the feoffor shall reenter, the assignee of the feoffee may tender. Here the King is the assignee, by act of Parliament, Englefield’s case is still stronger.

Doderidge, J.

There are two points in the proviso: the tender of the ring, and the declaration of the reason of its being tendered. And whether the declaration be the principal or the accessary, is the question. No man can make a tender, unless he shews to what purpose it is made. An attorney who has a warrant to deliver seisin, ought to declare that he deliver the clod in the name of the seisin. Attornment is a personal act and therefore in a quod juris clamat, one cannot appear by attorney. Yet attornment may be made by a stranger, with the consent of the lessee. So if one be seized of lands in fee, and a letter of attorney is made to give livery, and the attorney puts the lessee out possession: in this case if the lessee commands his servant to enter on the land, and he does so, it is as good an attornment as if the lessee himself had entered. In the present case, the principal act is the tender, then if the *statute gives the tender of the ring, it also gives the power of declaring. Englefield’s case is still stronger; for there it was expressed that he was his nephew and likely to be his heir &c. But all this is only a flourish, And the Duke of Norfolk’s case has no affinity to this; for I may convey another man's lands, but I cannot write with his hand.

Jones, J.

The condition is given to the King. In every condition there is something to be done or abstained from; which makes the breach or performance of it; and some times a penalty which is the entry. When a condition is given to the King, he has both parts. The payment is not personal here, and may be made by attorney, and the tender of the ring is nothing more, 4 Rep. 72. 73. Burrough’s case, and another adjudged in the Exchequer. A lease for years was made by the Abbot of Strata Mercel, rendering rent, and if the rent be behind, and be lawfully demanded. It shall be lawful for him to reenter: the reversion fell to the Crown: and it was adjudged that the demand was not necessary, Adjournetur to be argued by the Justices, postea, p. 102. Jones 134. Noy 79. Bendl. 139. Roll. 393.