to be under its control."-Smith v. Doe d. Jersey (1821), 2 Brod. & Bing. 473, at pp. 541, 542, Park, J.

"I cannot help saying that I think it is very important, according to my view of the law of contracts, both at Common Law and in Equity, that if parties have made an executory contract which is to be carried out by a deed afterwards executed, the real completed contract between the parties is to be found in the deed, and that you have no right to look at the contract, although it is recited in the deed, except for the purpose of construing the deed itself. You have no right to look at the contract either for the purpose of enlarging or diminishing or modifying the contract which is to be found in the deed itself. A recital of the agreement in such deed would have the same effect as an ordinary preamble to an Act of Parliament, or any other instrument, as showing what the object of the parties was, and what they were about to do, so as to afford a guide in the construction of their words; but you have no right for any purpose to look at anything but the deed itself, unless there be a suit for rescinding the deed on the ground of fraud, or for altering it on the ground of mistake."-Leggott v. Barrett (1880), 15 Ch. D. 306, at p. 309; 51 L. J. Ch. 90, at p. 92, James, L. J.

"I entirely agree with my Lord [James, L. J.] that where there is a preliminary contract in words which is afterwards reduced into writing, or where there is a preliminary contract in writing which is afterwards reduced into a deed, the rights of the parties are governed in the first case entirely by the writing, and in the second case entirely by the deed; and if there be any difference between the words and the written document in the first case, or between the written agreement and the deed in the other case, the rights of the parties are entirely governed by the superior document and by the governing part of the document. If there is any doubt about the construction of the governing words of that document, the recital may be looked at in order to determine what is the true construction; but if there is no doubt about the construction, the rights of the parties are governed entirely by the operative part of the writing or the deed."—Ibid., at p. 311; L. J., at p. 93, Brett, L. J.

"In Leggott v. Barrett (1880), 15 Ch. D. 306, at pp. 309, 311; 51 L. J. Ch. 90, at pp. 92, 93, Lord Justice James and the present Master of the Rolls (Sir W. B. Brett) laid down what is indubitably the law, that when a preliminary contract is afterwards

reduced into a deed, and there is any difference between them, the mere written contract is entirely governed by the deed."-Palmer v. Johnson (1884), 13 Q. B. D. 351, at p. 359; 53 L. J. Q. B. 348, at p. 351, Fry, L. J.

"This case is an illustration of a broad principle of law which is perfectly well known and is constantly acted upon—namely, that where a preliminary contract of any description, whether verbal or written, is intended to be superseded by, and is in fact superseded by, one of a superior character, then the later contract-the superior contract-prevails, and the stipulations in the earlier one can no longer be relied upon."—Greswolde-Williams and Others v. Barneby (1901), 49 W. R. 203, at p. 204, Wills, J.

The Interpretation of Deeds should be favourable. The interpretation of deeds ought to be favourable and as near to the apparent intent of the parties as possibly may be, and as the law will permit.

Too much regard is not to be had to the natural and proper signification of words and sentences to prevent the simple intention of the parties from taking effect.

False English will not make a deed void, if the intent of the parties plainly appears.

Insensible words may be rejected.

"It is a known maxim in law, that benigne faciendæ sunt interpretationes chartarum ut res magis valeat quam pereat. (Co. Litt. 36.) There is another, that verba intentioni et non e contra debent inservire. (8 Co. 94.)

"It is said in our books that the construction of deeds ought to be favourable and as near to the apparent intent of the parties as possibly may be, and as the law will permit.

"That too much regard is not to be had to the natural and proper signification of words and sentences to prevent the simple intention of the parties from taking effect; for that the law is not nice in grants, and therefore it doth often transpose words contrary to their order to bring them to the intent of the parties. For neither false Latin nor false English will make a deed void, if the intent of the parties doth plainly appear. I have collected these rules and maxims from Littleton, Plowden, Coke, Hobart, and Finch, persons of the greatest authority. But they are themselves so full of justice and good sense, that they do not want any authority to

B.

L

support them, and I do not know that they were ever yet controverted.

"On the foundation of these rules, whenever it is necessary to give an opinion upon the doubtful words of a deed, the first thing we ought to inquire into is, what was the intention of the parties. If the intent be as doubtful as the words, it will be of no assistance at all. But if the intent of the parties be plain and clear, we ought, if possible, to put such a construction on the doubtful words of a deed, as will best answer the intention of the parties, and reject that construction which manifestly tends to overturn and destroy it. I admit that though the intent of the parties be never so clear, it cannot take place contrary to the rules of law, nor can we put words in a deed which are not there, nor put a construction on the words of a deed directly contrary to the plain sense of them. But where the intent is plain and manifest, and the words doubtful and obscure, it is the duty of the judges (and this is that astutia which is so much commended by Lord Hobart, p. 277, in the case of the Earl of Clanrickard) to endeavour to find out such a meaning in the words as will best answer the intent of the parties."-Parkhurst v. Smith (1741, 1742), Willes Reps. 327, at p. 332, Willes, C. J. (cited and applied by Alexander, C. B., in Colmore v. Tyndall (1828), 2 Y. & J. 605, at p. 618, and by Lord Brougham, L. C., in Langston v. Langston (1834), 2 Cl. & F. 194, at p. 243).

[N.B.-This case is also reported under the name of Smith v. Packhurst, in 3 Atk. 135, where the judgment is not so full as in the above report. See infra.]

"First, it is a maxim that such a construction ought to be made of deeds, ut res magis valeat quam pereat, that the end and design of the deeds should take effect rather than the contrary.

"Another maxim is that such a construction should be made of the words in a deed, as is most agreeable to the intention of the grantor; the words are not the principal things in a deed, but the intent and design of the grantor; we have no power indeed to alter the words or to insert words which are not in the deed, but we may and ought to construe the words in a manner the most agreeable to the meaning of the grantor, and may reject any words that are merely insensible; these maxims, my Lords, are founded upon the greatest authority-Coke, Plowden, and Lord Chief Justice Hale, and the law commends the astutia, the cunning

of judges in construing words in such a manner as shall best answer the intent; the art of construing words in such a manner as shall destroy the intent may show the ingenuity of counsel, but is very ill-becoming a judge."-Smith v. Packhurst (1741, 1742), 3 Atk. 135, at p. 136, Willes, C. J.

"Lord Hobart (who was a very great man) in his report (fo. 277), says: 'I do exceedingly commend the judges that are curious and almost subtil, astuti, to invent reason and means to make acts according to the just intent of the parties, and to avoid wrong and injury which by rigid rules might be wrought out of the Act'; and my Lord Hale in the case of Crossing v. Scudamore (1670), 1 Vent. 137, at p. 141, cites and approves of this passage in Hobart."-Roe v. Tranmarr (or Tranmer) (1758), Willes Reps. 682; 2 Wils. 75, Willes, C. J. (applied in In re Johnston Foreign Patents Co., Ltd., [1904] 2 Ch. 234, at p. 247; 73 L. J. Ch. 617, at p. 623, by Vaughan Williams, L. J.

"Undoubtedly the generally received principle of law is, that the party who makes any instrument should take care so to express the amount of his own liability, as that he may not be bound beyond what it was his intention that he should be; and on the other hand, that the party who receives the instrument and parts with his goods on the faith of it, should rather have a construction put upon it in his favour, because the words of the instrument are not his but those of the other party."-Mayer v. Isaac (1840), 6 M. & W. 605, at p. 612; 9 L. J. Ex. 225, at p. 226, Alderson, B.

"It is quite true, I am not to conjecture or guess at what might have been the intention of the parties, but I am to consider the whole instrument, and if there appear a plain intention to give interest, then, though there should be no express words to that effect, and this is the case of a deed, yet I am bound to give it that construction."-Clayton v. Glengall (1841), 1 Dr. & W. 1, at p. 14, Sir Edward B. Sugden, L. C.

"That was done in accordance with the maxim which ordinarily governs the interpretation of written instruments Benigna faciendæ sunt interpretationes propter simplicitatem laicorum, ut res magis valeat quam pereat."-Cheney v. Courtois (1863), 13 C. B. N. S. 634, at p. 640, Erle, C. J.

All contracts should, if possible, be construed, ut res magis valeat quam pereat."-Vestry of St. Leonards, Shoreditch v. Hughes (1864), 17 C. B. N. S. 137, at p. 162, Byles, J.

Supplying or rejecting Words.

"The result of all the authorities is, that when a Court of law can clearly collect from the language within the four corners of a deed, or instrument in writing, the real intentions of the parties, they are bound to give effect to it by supplying anything necessarily to be inferred from the terms used, and by rejecting as superfluous whatever is repugnant to the intention so discerned.” -Gwyn v. Neath Canal Co. (1868), L. R. 3 Ex. 209, at p. 215; 37 L. J. Ex. 122, at p. 126, Kelly, C. B.

(See also, "Insensible Words and Phrases," ante, p. 70, and post, p. 324, "Statutes.")

Date and Delivery.

A deed has no operation until delivery.

When a deed is dated, the date is the date of delivery and of its execution until the contrary appears.

When a deed is undated or has an impossible date, the word must mean delivery.

"date 99

A deed is taken to speak from the time of its execution, and not

from the date apparent on the face of it.

The date of a deed is only primâ facie evidence of the time when it was made.

"Delivery is either actual, i.e., by doing something and saying nothing, or else verbal, i.e., by saying something and doing nothing, or it may be both; and either of these may make a good delivery and a perfect deed."-Sheppard, Touchstone, Ch. IV., p. 57.

"A deed has no operation until delivery, and there may be cases in which, ut res valeat, it is necessary to construe date, delivery. Where there is no date, or an impossible date, that word must mean delivery. But where there is a sensible date, that word in other parts of the deed means the day of the date, and not of the delivery."-Styles v. Wardle (1825), 4 B. & C. 908, at p. 911, Bayley, J.

"Where an instrument is formally sealed and delivered, and there is nothing to qualify the delivery but the keeping the deed in the hands of the executing party, nothing to show that he did not intend it to operate immediately, it is a valid and effectual