Before we conclude, it will not be improper to ſubjoin a few remarks upon ſuch deeds as are uſed not to convey, but to charge or incumber, lands, and diſcharge them again: of which nature are, obligations or bonds, recognizances, and defeazances, upon them both.
1. An obligation, or bond, is a deed[1] whereby the obligor obliges himſelf, his heirs, executors, and adminiſtrators, to pay a certain ſum of money to another at a day appointed. If this be all, the bond is called a ſingle one, ſimplex obligatio; but there is generally a condition added, that if the obligor does ſome particular act, the obligation ſhall be void, or elſe ſhall remain in full force: as, payment of rent; performance of covenants in a deed; or repayment of a principal ſum of money borrowed of the obligee, with intereſt, which principal ſum is uſually one half of the penal ſum ſpecified in the bond. In caſe this condition is not performed, the bond becomes forfeited, or abſolute at law, and charges the obligor while living; and after his death the obligation deſcends upon his heir, who (on defect of perſonal aſſets) is bound to diſcharge it, provided he has real aſſets by deſcent as a recompenſe. So that it may be called, though not a direct, yet a collateral, charge upon the lands. How it affects the perſonal property of the obligor, will be more properly conſidered hereafter.
If the condition of a bond be impoſſible at the time of making it, or be to do a thing contrary to ſome rule of law that is merely poſitive, or be uncertain, or inſenſible, the condition alone is void, and the bond ſhall ſtand ſingle and unconditional: for it is the folly of the obligor to enter into ſuch an obligation, from which he can never be releaſed. If it be to do a thing that is malum in ſe, the obligation itſelf is void: for the whole is an unlawful contract, and the obligee ſhall take no advantage from ſuch a tranſaction. And if the condition be poſſible at the time
- ↑ See appendix. №. III. pag. xiii.
