This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
Conditions are, by the common-law writers, divided into conditions implied or "in law," and conditions expressed or "in deed."82 There was, at common law, a condition in law annexed to the estate of a tenant for life or for years to the effect that he should forfeit his estate in case he made a tortious alienation to a stranger in fee simple.83 This condition in law no longer exists, the doctrine of tortious alienation being entirely obsolete.84 There was also a condition in law by which the tenant of a particular estate forfeited his estate in case he asserted, in a court of record, a claim to a greater estate than he had.85 This latter condition in law has been recognized, and indeed extended, in this country, many courts having apparently adopted the view that the assertion, by a tenant under a lease, of an adverse title in himself or in a third person, that is, a denial of the relation of tenancy, will effect a forfeiture of the tenant's estate, without reference to how such an assertion is made, that is, whether it is made of record, in writing, or verbally.86 This view has been in terms based upon the theory that the assertion of an adverse title by the tenant has the effect of rendering his possession adverse to the landlord,87 thereby starting the running of the statute of limitations against the latter, and that the statute cannot begin to run unless the landlord has an immediate right to recover possession.88 In two or three states, on the other hand, the courts have apparently adopted
74. See e. g., Winn v. State, 55 Ark 360, 18 S. W. 375; Kew v. Trainor, 150 111. 150, 37 N. E. 223; Wheeler v. Earle, 5 Cush. (Mass.) 31, 51 Am. Dec. 41; Hand v. Suravitz, 148 Pa. 202, 23 Atl. 1117.
75. Few v. Perkins, L. R. 2 Exch. 92.
76. Miller v. Prescott, 163 Mass. 12, 47 Am. St. Rep. 434, 39 N. E. 409.
77. Winn v. State, 55 Ark. 360, 18 S. W. 375.
78. Kew v. Trainor, 150 111. 150, 37 N. E. 223.
79. Fillebrown v. Hoar, 124 Mass. 580.
80. See Co. Litt. 203b; Palmer v. Fort Plain & Cooperstown Plank Road Co., 11 N. Y. 376; Aikin v. Albany, V. & C. R. Co., 26 Barb. (N. Y.) 289.
81. 1 Perry, Trusts, Sec. 121; Stanley v. Colt, 5 Wall (U. S.) 119, 165, 18 L. Ed. 502. See citations post Sec. 79, note 9.
82. All conditions precedent are expressed, it seems.
83. Co. Litt. 251a; 2 Blackst. Comm. 274.
84. Ante Sec. 33.
85. Co. Litt. 251, 252; Bac. Abr., Estate for Life (C), Leases (T2); Challis, Real Prop. (3rd Ed.) 135.
86. Peyton v. Stith, 5 Pet. (U. S.) 485, 8 L. Ed. 200; Barnewall v. Stephens, 142 Ala. 609, 38 So. 662; Doty v. Burdick, 83 111. 473; Tobin v. Young, 124 Ind. 507, 24 N. E. 121; Springs v. Schenck, 99 N. C. 551, 6 Am. St. Rep. 552, 6 S. E. 405; Schwoebel v. Fu-gina, 14 N. Dak. 375, 104 N. W. 848; Clark v. Everly, 8 Watts. &
S. (Pa.) 226; Duke v. Harper, 6 Yerg. (Tenn.) 280, 27 Am. Dec. 462; Hall v. Haywood, 77 Tex. 4, 13 S. W. 612; Evans v. Enloe, 70 Wis. 345, 34 N. W. 918, 36 N. W. 22.
87. Willison v. Watkins, 3 Pet. (U. S.) 43, 7 L. Ed. 596; Dahm v. Barlow, 93 Ala. 120, 9 So. 598; Fortier v. Ballance, 10 111. 41; Farrow's Heirs v. Eclmundson, 4
B. Mon. (Ky.) 605, 41 Am. Dec. 250; Trustees of Wadsworthville Poor School v. Jennings, 40 S.
C. 168, 891, 42 Am. St. Rep. 854, 18 S. E. 257.
88. Post Sec. 506.
Sec. 77 ]
The Quantum of Estate.
2G7 the common law rule that, in order to work a forfeiture, the disclaimer must be of record, and that a disclaimer, or assertion of title in another, if in pais, will not have that effect.89
An implied condition, or condition in law, exists in a number of states by force of statute, in the case of any estate created by a lease, that is, where the relation of lanlord and tenant exists. In some states the landlord is authorized to resume possession of the premises upon the tenant's failure to pay rent, such a provision being most frequently introduced as a part of a statute authorizing summary proceedings, and the non payment of rent being one of the grounds named for such a proceeding. In a few states the non payment of rent is made a ground of forfeiture, without any reference to the mode of proceeding by which the forfeiture may be enforced. Occasionally the statute provides that the landlord may recover possession in case the tenant violates any stipulation of the lease. In all these cases the effect of the statutory provision is to subject the estate created by the lease to a condition subsequent in law, or implied condition.90
Other cases of conditions implied in law in connection with the relation of landord and tenant may arise by reason of statutory provisions that the use of the premises by the tenant for some illegal purpose shall invalidate the lease, or enable the landlord to recover possession91 and also by reason of statutes giving the landlord a right of entry upon the desertion of the premises by the tenant.92 Also a statutory provision giving a right of forfeiture for waste in effect creates an implied condition, that is, a condition to
89. DeLancey v. Ganong, 9 N. Y. (5 Seld.) 9; Rosseel v. Jar-vis, 15 Wis. 571; Gale v. Oil Run Petroleum Co., 6 W. Va. 200 (semble); That such is the rule in England and Canada see Doe d. Graves v. Wells, 10 Adol. & E.
427; Doe d. Daniels v. Weese, 5 U. C. Q. B. 589.
90. 2 Tiffany, Landlord & Ten. Sec.Sec. 193a, 274 d, e.
91. Id., Sec. 193b.
92. Id., Sec. 193c.
2G8 Real Property. [ Sec. 78 which the particular estate is subject even apart from any language to that effect in the instrument creating the estate.93