its payment, and clauses of distress and re-entry, it was decided that the grantee of the rent could not maintain covenant for its non-payment against a purchaser of the lands, who took under a power of appointment, and not by assignment, so that the covenant for payment of the rent did not run with the estate, but it was admitted(j) that the grantee of the rent might have re-entered for the condition broken by its non-payment.

18. An assignee of part of the estate in the reversion of demised premises, is entitled to the benefit of a condition of re-entry: if a lessor grant his reversion expectant on the determination(k) of a lease, to a third person for life, or for years, with remainder over, such grantee of a partial estate in the reversion is an assignee within the contemplation of the Statute, and may re-enter for a condition broken.

19. A right of re-entry cannot be reserved to a stranger to the legal estate, whose real title is disclosed by the lease: mortgagor and mortgagee having joined in granting a lease, reserving a right of reentry to the mortgagor(1) for breach of covenant, it was ruled that as the legal estate appeared to be in the mortgagee by the recitals in the lease, an ejectment could not be supported for a forfeiture incurred by breach of the covenant. So a testator by his will bequeathed a chattel interest to a trustee, his executors and assigns, in trust, to permit the testator's widow to receive the rents during her life, and appointed the trustee his executor: the testator having died, his executor, and the widow, by indenture, after reciting(m) the nature of their interest, demised the premises to J. G., at a rent payable to the lessors and the survivors of them, with a proviso of re-entry in case of non-payment: the executor having died, and the rent being in arrear, the widow brought an ejectment grounded on the condition of re-entry, upon her sole demise, which was ruled not to be maintainable: it was observed, if the lease had been made in the names of the lessors, without disclosing the rights which they individually possessed, the demise in the ejectment by the widow as surviving lessor might have been sufficient, because the lessee would have been estopped from denying her right, but as the lease disclosed that the deceased lessor was alone clothed with the legal interest, the act of the widow could only operate as a

(j) Roach v. Wadham, 6 East, 300, by Abbott, Argo.

(k) Leonard's case, cited in Attoe v. Hemmings, 2 Bulst. 282; 1 Ro. Rep. 81; Alfo v. Henning, Owen, 151, S. C.; Anon. Moor. 93, pl. 230; Co. Litt. 215, A.; and see Winter's case, 3 Dyer, 308,

B., in marg.

(1) Doe dem. Barber v. Lawrence, 4 Taunt. 23; Doe dem. Barney v. Adams, 2 Cro. & Jerv. 232; 2 Tyrw. 289; Bell dem. Lucena v. Flattery, Jebb & B. 203.

(m) Doe dem. Barker v. Goldsmith, 2 Cro. & Jerv. 674; 2 Tyrw. 710, S. C.

confirmation, so that on the executor's death, his estate devolved on his personal representative, who was alone competent to proceed for the forfeiture.

20. Every condition must defeat the entire estate(n) to which it it is annexed, and, therefore, an entry made for a condition broken, defeats all rights and incidents affecting the interest of a lessee, nor can a condition be so framed as to make one and the same estate in any lands cease(o) as to one person, and remain as to another, or cease for a time and revive afterwards. If lands be demised to J. S. for the term of his life, rendering rent, and the lessee grant all his estate to the reversioner, reserving an increased rent, with clause of re-entry in case of its non-payment, and J. S.(p) enter for the condition broken, the rent reserved by the original lease will be revived.

21. A condition annexed to land cannot be apportioned or severed by the act of the party, because the condition being penal and entire, and giving one entire entry(q) into the whole of the demised premises for default in paying any part of the rent, the whole condition is destroyed by any severance of the reversion. If a lease be made of four acres, reserving rent, with condition of re-entry, and the reversion of two acres be granted, the rent shall be apportioned by the act of the party, but the condition(r) being entire and against common right, will be defeated.

22. However, if the reversion be divided by act of law, a condition annexed will be apportioned: if a person seised of lands in fee, and possessed of other lands for ninety-nine years, demise the whole for a term of years at an entire rent subject to a clause of re-entry; upon the death of the lessor intestate during the term, the reversion(s) will be severed by act of law, according to the nature of the estate between the heir and administrator, and the condition will be apportioned in the same manner, so that each party may re-enter for breach of the condition in their several portions; but if the lessor assign his reversion in demised premises to different persons in severalty, or devise his free

(n) Butler's note 90 to Co. Litt. 202, B.; 1 Ro. Abr. 474, Condition, P. (0) Mildmay's case, 6 Rep. 41, A. (p) Gascon's case, Year Book, 7 Hen. VI. fo. 2, by Cheine; Year Book, 14 Edw. IV. fo. 6, pl. 1.

(q) Co. Litt. 215, A.; Knight's case, Rep. 54; Winter's case, 3 Dyer, 308; Twynam v. Pickard, 2 B. & Ald. 105112, by Holroyd, Just.

(r) See note 118* to Co. Litt. 215, B., from the MSS. of Lord Nottingham.

(s) Lee v. Arnold, 4 Leon. 27; Winter's case, 3 Dyer, 308; Appowel v. Monnoux, Moor, 97, S. C.; Moodie v. Garnon, 1 Ro. Rep. 330-367; Moor, 848; 3 Bulst. 153; Wood v. Germons, Cro. Jac. 390, S. C.; Knight's case, 5 Rep. 54, B.; Moor, 199; 1 And. 173, pl. 211; Knight v. Beech, 3 Leon. 124; Knight dem. Fortescue r. Beech, Gouldsb. 15, 19; Anon. Godb. 2, case 3; Bro. Abr. Condition, pl. 193.

hold estate to a person, not being his heir, and the reversion of the chattel interest devolve on his executor, the condition will be utterly defeated, the reversion being severed by the act of the lessor. So if a sole lessor convey his estate in the reversion of demised premises to two persons as tenants in common, the reversion will be severed and the condition destroyed, and the tenants in common cannot join in a demand for the reserved rent, or enter for the condition broken by its non-payment.

If two joint-tenants demise for years, reserving rent with condition of re-entry, and afterwards make partition(t) by deed, neither of them can enter for breach of the condition; but if one of the joint-tenants release(u) to his companion, the condition will be preserved, as such releasee is an assignee within the Statute. If the reversion of demised premises descend to two co-parceners, the condition is not defeated by the descent, but one of the co-parceners(v) cannot enter alone for breach of the condition in respect of her separate moiety.

If a person demise land of which he is seised in his own right, and other land of which he is seised in right of his church, for a term of years(w) at a gross rent with clause of re-entry, the rent will be apportioned on his decease and the condition divided. If a lease be made of two acres, one of the nature of borough English, the other at common law, and the lessor die, leaving issue two sons, the reversion(x) descends in distinct moieties, and each of the sons shall enter for the condition broken, and by the descent, which is an act of law, the reversion, rent, and condition are divided. So where a lessor is obliged by the compulsory provisions of an Act of Parliament to convey his reversion in part of demised premises for public purposes, the reversion shall be apportioned. If a lessor accept a lease or surrender of parcel of the demised premises, the rent shall be apportioned and the condition suspended(y); but if part be evicted by title paramount, both the rent and condition shall be apportioned.

Although the reversion be severed by act of law, and the rent be apportionable between two or more persons, unless the rent payable to each is capable of being precisely ascertained, the right to re-enter will

(t) Knight dem. Fortescue v. Beech, Gouldsb. 22.

(u) Lee v. Arnold, 4 Leon. 29. (v) Doe dem. De Rutzen v. Lewis, 5 Ad. & Ell. 277-286; 6 Nev. & M. 764, S. C.; and see note D. to Dumpor's case, 4 Rep. 120, by Thomas.

(w) Lee v. Arnold, 4 Leon. 28.

(x) Co. Litt. 215, A.; Dumpor's case, 4 Rep. 120, and note D.

(y) Lee v. Arnold, 4 Leon. 27; Hodgkins v. Robson, 1 Ventr. 276, by Hale; 1 Freem. 405-417; Knight dem. Fortescue v. Beech, Gouldsb. 21, by Peryam, Just.

be unavailing(z), because neither of the reversioners can make the requisite demand for the precise rent in arrear, and they are not competent to join in a demand for the whole rent, as they cannot recover in ejectment for a forfeiture upon a joint demise; but this difficulty occurs only upon a proviso of re-entry for non-payment of rent, and is not applicable to a similar condition for breach of any other covenant.

Upon a demise of several denominations of land, reserving a separate rent for each, provided that if the said rents or any parcel thereof should happen to be behind in part or in all, by one month after the times when the same should be paid, that then it should be lawful for the lessor and his heirs into all and singular the premises to re-enter: the lessor having conveyed the rent and reversion of one of the denominations(a) comprised in the lease to a purchaser, and the rent payable out of that part being in arrear, it was determined that the purchaser might re-enter; and this case was distinguished from Winter's case(b), for there the rent originally reserved was entire, and the condition was, that if any part of the rent were behind, the lessor should re-enter into the whole.

23. If a lease be made reserving rent with a condition, that if the rent be behind(c) it shall be lawful for the lessor and his heirs to reenter; in such case, if the rent be not paid, the lessor may enter and hold the lands in his former estate, because the lease was defeasible on the non-performance of the condition. If a lease be made reserving rent, upon condition that if the rent be in arrear, it shall be lawful for the lessor and his heirs to enter and hold the lands and take the profits, until he be satisfied and paid the rent in arrear, this is not a condition(d) absolutely to defeat the estate, and the lessor shall only hold the land as a pledge until the rent be paid, and the profits shall not go in discharge, or on account of the rent, but shall be applied to the use of the lessor, in order that the tenant may be obliged to satisfy the arrears and if the condition be that the lessor shall re-enter, and take the profits until his rent shall(e) thereof be satisfied, then the profits shall be applicable to discharge the rent, and, consequently, when the profits received are equivalent to the arrear of rent, the lessee may enter and hold under his lease.

If a party convey lands by deeds of lease and release to trustees and

(z) Moodie v. Garnance, 3 Bulst. 153, by Lord Coke, C. J.

(a) Hill's case, 4 Leon. 187.

(b) Winter's case, 3 Dyer, 308, B.; Lee v. Arnold, 4 Leon. 27; Appowel v.

Monnoux, Moor, 97, S. C.

(c) Gilb. on Rents, 135; Littl. s. 325. (d) Littl. s. 327.

(e) Co. Litt. 203, A.

their heirs to the use, intent, and purpose that J. S. may receive thereout a certain annual sum, and that if such yearly sum or any part thereof be unpaid for a certain time, it shall be lawful for J. S. and his heirs to enter upon and hold possession of the lands, and receive the rents and profits until the arrears are satisfied; in such case, as(ƒ) soon as the rent becomes in arrear, a use, which is derived out of the original seisin of the trustee, springs up, and vests in the grantee of the rent, and by force of the Statute of Uses is immediately transferred into possession; such grantee, consequently, has a right to take and retain possession until the object is satisfied, when the use determines; and by virtue of this estate J. S., the grantee, may make a lease for years to try his title in ejectment for recovery of possession of the premises so charged; and if such rent be assigned, the right to enter and receive the profits passes to the assignee. Where, however, a rent is granted to a person and his heirs to be issuing out of certain lands, with a proviso of re-entry in case of non-payment, although there is no seisin out of which a use(g) can arise to the grantee on non-payment of the rent, yet an interest vests in the grantee, when the rent becomes in arrear, which he may reduce into possession by ejectment. Courts of Equity do not recognize any distinction between profits taken by the lessor after entry, which are, or which are not to be applied in satisfaction of the rent, for the lessor is, in all cases, compellable in equity to account for the profits during the time of his possession, and after satisfaction of the rent and costs, the lessee will be reinstated in the possession.

24. Freehold leases are always supposed to commence by livery, and cannot be determined without some act of equal notoriety, such as entry, and therefore a condition avoiding a freehold lease merely confers(h) a right to enter for its breach and to defeat the estate granted, and until such entry the lease is only voidable; but where a similar condition is annexed to a lease for years, the term granted is defeated without entry by breach of the proviso.

A distinction was formerly (i) recognized between a condition rendering a lease for years absolutely void upon breach of covenant, and a reservation of a right of entry to the lessor for the same purpose: the lease, in the former event, was considered to be ipso facto deter

(f) Gilb. on Rents, 137; Butler's note 93 to Co. Litt. 203, A.; Havergill v. Hare, Cro. Jac. 510; Gilb. on Uses, by Sugden, 178, note.

(g) Gilb. on Rents, 139; Jemmott v. Cowley, Saund. 112; 1 Lev. 170;

Thos. Raym. 135-158; Doe dem. Freeman v. Bateman, 2 B. & Ald. 168.

(h) Browning v. Beeston, Plowd. 135. (i) Finch v. Throckmorton, Cro. El. 221; Moor, 291; Co. Litt. 215; 1 Ro. Abr. 475, Confirmation, B. pl. 3.