Warner v. . Harding , 1 N.C. 700 ( 1793 )

The question is not so much about the tender, as whether the condition be forfeited. The ipso declarante is no more than the law implies, for a tender without a declaration does not operate. The tender is actus corporiset mutus actus; the declaration is the soul, the life of this corporal act.Verba sunt indices animi. Et expressio corum quae naturaliter insunt vacuaet inutil. In the case of a distress annexed to rent service, lease for years rendering rent at Michaelmas, and if be in arrear twenty days after and lawfully demanded or personally, the lessor may distrain; yet the lessor may distrain before the 20 days are out. To this purpose the counsel for the defendant have cited the case of Cladon and Arrowsmith. Lessee for life (provided that he should not lease, except determinably on his death), made a lease for 21 years, without expressing that it should determine on his death; it is a good lease. 45 E., 3, proviso, that if rent be arrear, the King's bailiff shall distrain, it is void for he shall distrain as my servant. Dyer, 331; 4 Rep., 72; 8 Rep., Damport's case; 1 Rep., Shelley'scase, limited to heirs male and the heirs male of such heir male. There is this difference: when a thing is vested with an interest it may be done by attorney, but not when it is a nude interest. Comb's case, 9 Rep., 33 E., 3; F. Trespass, 333.

2. It is a rule that when a corporal act has two effects, the one proper (direct) and natural, the other improper (indirect), and legal, the act will not enure to the improper effect without a declaration. Bract. lib., 2, cap., 17. In speaking of corporal acts and their effects, they have three parts: actus corporis, which is here the tender of the ring, actusanimi the declaration and intention of avoiding the uses, adminiculumjuris, the revocation of the uses, by the operation of the law on the tender. *Therefore riding on the land in hawking or hunting is not a possession of it. Naturalis possessio est pedis possessio, but it is notcivilis possessio, for it lacks actus animi. 43 E., 3. A delivery of the deed of feoffment on the land, without saying any thing, has no operation, but if he had said that it is to such a purpose, etc., or proviso, etc., it would have been well. Thoroughgood's case. And it is so here, especially as the rent rises without entry, to the Queen and her heirs. [Nota that a springing use may be to a man attained, and the attainder does not countermand a springing use, which was unanimously agreed to.]

3. This case turns on the general ground of the notice. For if here no declaration is made on the tender, the feoffee cannot know why it is made; perhaps the money is due to him. An estate shall not be defeated without notice. Dyer, 354. Provided that if the feoffor tenders to the feoffees during his life, etc., tender without notice is not good. The bargainee of the reversion shall not enter on lessee without notice. 3 Rep. The lessor accepts rent without notice of the assignee; yet he may enter. So it seems to me the tender is the principal, the declaration the accessory. Etaccessorium sequitur, suum principale. The proviso of the tender of the ring is so forfeited. Ergo, so must be the declaration of the intention of the tender, Quid quis per seipsum, per alium potest in civil acts, but not in natural ones. The tender is a civil act. Comb's case, 9 Rep. Here, without a declaration, the time is uncertain; the thing, a ring, or etc., the person the feoffees or their heirs. Ergo there is a great necessity that a declaration should accompany the act. There are but two cases in which the conditions are inseparable from the person, and cannot be forfeited by statute. In Englefield's case the condition was not forfeited because the proviso then was that if his nephew becomes prodigal or vicious, etc., as CREW, C. J., said, Jura civilia non dirimunt naturalia: the other case is when the act is individually annexed to the person, as to write with one's own hand, as in the Duke of Norfolk's case, 7 Rep. But here the tender of the ring is not such.