The opinion of the court was delivered at March term, 1849.

This is an action of covenant broken, on the covenants contained in a deed from the defendant to one Charles Bemis, of an undivided fourth ■ part of a township of land, previously conveyed by the commonwealth to one John Peck, from whom the defendant derived his title.

By his deed to Bemis, the defendant covenanted with him, his heirs and assigns, that he would warrant and defend the *426granted premises against all claims and defnands of the commonwealth, on account of the condition in the deed to Peck ; and to extinguish and cause to be discharged all claims on the premises, on account of the settling duties commonly so called.

The premises were afterwards conveyed by Bemis to the plaintiff, and the question is, whether, upon the facts agreed, the plaintiff is entitled to recover for the breach of either of the covenants in the defendant’s deed to Bemis.

The plaintiff contends that the deed to Peck was on a condition precedent, namely, that, before the grant to him, he should have settled thirty families within the township. It is admitted, that no families were settled within the township, at or before the grant to Peck, and it is therefore argued, that no estate ever vested in him by that grant.

It is generally true, that, by a grant of land, on a condition precedent, no estate will vest in the grantee, before the performance of the condition. But Littleton lays down an exception to the general rule, as follows: “ If land be granted to a man for the term of five years, upon condition, that if he pay to the grantor, within the first two years, forty marks, that then he shall have a fee, or otherwise but for the term of five years, and livery of seizin is made to him by force of the grant, now he hath a fee simple conditional.” Sect. 350.

Whether the entry of Peck under the grant, and holding possession with the consent of the commonwealth, by himself and those holding under him, is equivalent to livery of seizin, so as to bring the grant to him within the above or any other exception to the general rule, it is not necessary to consider; for, from the facts stated, it clearly appears, that the performance of the condition by Peck has been waived by the commonwealth, and a condition subsequent has been iubstituted therefor.

The resolve of 1816, c. 116, extended the time for the performance of the conditions, as to settlers, contained in the {rants of the commonwealth, where the same had hot been jerformed, for the term of five years, ending the 1st of June, *4271822. By this resolve, the commonwealth waived the condition in their deed to Peck, and, thereupon, if not before, the estate vested in Peck subject to the new condition. The resolve operated as a confirmation of the original grant, substituting only a subsequent condition for a condition precedent.

This new condition, however, was not performed; and it has been argued by the defendant’s counsel, that the right of the commonwealth, to recover possession of the premises for the breach of the condition, has been barred by the Rev. Sts. c. 119, § 12, as the commonwealth did not enter, or commence any action to recdver possession, for more than twenty years after the breach of the condition. This might be so, but for subsequent resolves, whereby the time for the performance of the condition was still further enlarged; such enlargement being undoubtedly a waiver of the right of the commonwealth to enter or to recover possession for the breach of the former condition. By the resolve of 1831, c. 40, the time for the performance was enlarged for the term of six years ending June, 1836; and before that term expired, another resolve passed, which appears to the court decisive of this case. By the last mentioned resolve, (1836, c. 43,) the land agent of the commonwealth was directed to give notice to all proprietors, who were not known to have fulfilled the conditions as to settlers, to transmit to him, on or before the first day of June then next, a list of the number of settlers they had respectively placed on their lands, if any, and pay the sum of thirty dollars to the agent, for each and every family which should then be deficient of the whole number, which they were severally required by their deeds from the commonwealth to place thereon, or their lands would be declared forfeited to the commonwealth: “ Provided, however, that they may have the further time of one year for the payment of the commutation, by giving bonds satisfactory to the land agent.” We entertain no doubt of the meaning of this proviso. It was to place those who should pay the commutation money, and those who should *428give satisfactory security therefor, on the same footing; and, in either case, their lands were not to be forfeited And so it is declared in the resolve of 1844, c. 81, which refers to the resolve of 1836, c. 43, and provides, that compliance with that resolve should be deemed and taken to be a satisfactory performance of the conditions contained in such conveyances; and further declares the title of such as had so complied to be complete in themselves or in their assignees. And this is the obvious meaning of the resolve of 1836, c. 43, which makes no distinction between the payment, and the giving satisfactory security for the payment, of the commutation money. If it were not the intention of the resolve to discharge the lands from the liability to forfeiture, by compliance with the proviso, there would be no reason for requiring security.

This being the meaning of the resolve, we are of opinion that it is decisive of the present action; for it is agreed, that James Barnard and Richard S. Roberts, the assignees of Peck, did give their sealed note or bond, obligating themselves to pay to the commonwealth, in one year, the sum of $900, being the amount of the commutation money then due on account of the township, which bond was satisfactory to the land agent. This security was given in compliance with the proviso in the resolve, and vested an absolute title in the assignees of Peck, although the commutation money was not paid within the year, so that no legal estate passed by the deed from the commonwealth to John L. Roberts.

Another ground of defence, we also think, is well founded. It is objected, that if the non-payment of the commutation money within the year were a breach of the condition, so as to entitle the commonwealth to recover possession for condition broken, the commonwealth had no power to assign such right, without first recovering possession. The question is not whether the commonwealth can be disseized, so as to invalidate a sale of their lands, as in the cases of individual proprietors of lands, but whether the commonwealth can assign a chose in action.

In the case of Wilbur v. Tobey, 16 Pick. 175, it was *429decided, that the commonwealth is not so seized of an escheat before an inquest of office, as to be enabled to grant the same to another, and that nothing passes by such a grant. In that case, the estate escheated to the commonwealth by the death of the tenant without heirs. It was held, that the statute of 18 Henry VI., c. 6, was in force in this commonwealth. That statute provides, that all letters patent or grants of lands and tenements, before office found or returned into the exchequer, shall be void. The construction of this statute was very fully considered in Doe v. Redfern, 12 East, 96. That was the case of a grant of lands by the king, which had escheated by the death of the tenant without heirs, and it was held, that the grant was void, although made after inquest found, there being a defect in the inquisition. It was admitted by the counsel for the grantee, that if that had been a case of forfeiture, or entry for condition broken, the grant before office found would be void. But it was contended, though not admitted by the court, that the case of an escheat was very different from that of a forfeiture; as in the case of escheat, the king is in possession immediately on the death of the tenant without heirs. It was answered, and so it was decided by the court, that, although the king might be considered as having a possession in law, before office, yet ie cannot grant until office found and returned, by the 18th of Henry VI., c. 6. Blackstone, in his commentaries (3 El. Comm. 259), says, that “ inquests of office were devised by law, as an authentic means to give the king his right by solemn matter of record, without which, in general, he can neither take, nor part from, any thing. For it is a part of the liberties of England, and greatly for the safety of the subjects, that the king may not enter upon, or seize any man’s possessions, upon bare surmises, without the intervention of a jury.” And, “with regard to real property, if an office be found for the king, it puts him in immediate possession, without the trouble of a formal entry, provided a subject, in the like case, would have had a right to enter. “

In Jackson v. Smith, 7 Wend. 367, it was decided, that if *430an estate escheat by the death of the tenant without heirs, yet, until office found, the state has no right to enter and take possession; and a grant of the lands before office found conveys no title. And the case of Fairfax's Devisee v. Hunter, 7 Cranch, 603, was decided on the same principle. And the principle unquestionably applies to all cases of for feiture, except as to the forfeiture of the lands of persons, attainted of high treason, which, some of the judges were of opinion, vested the actual possession in the king, without office, on the ground, that the 33d of Henry VIII., c. 20, had taken such cases out of the 18th of Henry VI., c. 6. Dyer, 145. Upon these principles and authorities, we are of opinion, as to both grounds of defence, that this action cannot be maintained.