majority in number, representing three-fourths in value of his creditors and was then registered; after registration, the names of two additional creditors were added to the schedule:-Held, that the alteration was not material, and that, as before registration the necessary number of creditors had executed, the insertion of the names of the two creditors did not affect the validity of the deed; Wood v. Slack, L. R. 3 Q. B. 379. Bond conditioned for payment of £100 by six equal payments of £16 13s. 4d. on the 13th of October in every year "until the full sum of one pounds" was paid. A stranger inserted the word "hundred after one. Held, that the alteration was immaterial, as the word “hundred” did not alter the sense, and therefore did not destroy the bond; Waugh v. Bussell, 5 Taunt. 707.

After a deed had been executed, one of the parties drew his pen through his own and another party's signatures; it was admitted that the erasure was made wilfully, and under the impression that it might influence claims to be made dehors the deed, but no fraud was intended; the deed contained no grant or covenant by the parties whose signatures were thus erased, and imposed no liability on them; they were simply covenantees. It was held that the erasure was immaterial, and did not avoid the deed; Caldwell v. Parker, Ir. R. 3 Eq. 519; disapproved of in Suffell v. Bank of England, 9 Q. B. D. 555.

As to filling up of blanks after execution, see ante, p. 26 et seq.

Observation.-Old law as to immaterial alterations.—It was formerly held that even an immaterial alteration made by or with the consent of the person for whose benefit it was intended, would render an instrument void; Pigot's Case, 11 Rep. 26 b; S. C., 2 Bulstr. 246; Shep. Touch. 68, 69: but this is no longer law; Aldous v. Cornwell, L. R. 3 Q. B. 573; S. C. 9 B. & S. 607; 37 L. J. Q. B. 201.

Fraudulent alterations. "If the alteration be fraudulently made by the party claiming under the instrument, it

does not seem important whether it * be in a material or [*34] an immaterial part; for, in either case, he has brought himself under the operation of the rule established for the prevention of malpractices; and having fraudulently destroyed the identity of the instrument, he must incur the peril of all the consequences:" Taylor, Ev. s. 1830 (7th ed.), citing Sanderson v. Symonds, 1 Brod. & B. 426; the American case of Adams v. Frye, 3 Metc. 103; and other cases.'

15

15 Turner v. Billingham, 2 Cal. 523; Bliss v. McIntyre, 18 Vt. 466; Woods v. Hildebrand, 46 Neb. 284; Letcher v. Bates, 6 J. J. Marsh (Ky.), 524. But

Rule 7.-An alteration or cancellation made in a deed by accident or mistake does not affect it.

This was not formerly law; Shep. Touch. 69.

Examples. Where the seals were eaten by rats and mice: Bayly v. Garford, March, 125; where the seal was pulled off by a little boy: Anon., Latch, 226; S. C., Palmer, 403; the deeds were allowed to be given in evidence.16

"If the absence of intention to cancel be shown, the thing is not cancelled;" per Maule, J., Bamberger v. The Commercial Credit, 15 C. B. 693; Perrott v. Perrott, 14 East, 423.

"I can no more consider this as avoiding the instrument than if it had been obliterated or cancelled by accident;" per Lord Ellenborough, C.J., Henfree v. Bromley, 6 East, 309.

Mr. Taylor (Ev. s. 1828, 7th ed.) seems to consider that a deed would still be vitiated even by an accidental alteration, or one made by mistake, provided in either case the deed, when so altered, was in the custody of the party seeking to enforce it: he cites Davidson v. Cooper, 11 M. & W. 778; 13 M. & W. 343; but see Nichols v. Haywood, Dyer, 59, and Master v. Miller, 4 T. R., at p. 339, where Buller, J., says: "It is not universally true that a deed is destroyed by an alteration, or by tearing off the [*35] seal. . . . In any case where the seal is torn off by accident after plea pleaded, the deed is held good (see 1 Roll. Rep. 40; Michael v. Scockwith, Cro. Eliz. 120);. and in these days, I think even if the seals were torn off before the action brought, there would be no difficulty in framing a declaration which would obviate every doubt upon that point, by stating the truth of the case. . . . The difficulty which arose in the old cases depended very much on the technical forms of pleading applicable to deeds alone."

"It is a question of evidence whether a deed is cancelled animo cancellandi: per Lord Abinger, C. B., Alsager v. Close, 10 M. & W. 581; and see pp. 583, 584, 'Production of a deed with the seal torn off is primâ facie evidence of cancellation.'"

in Moger. Herdon, 30 Miss. 120, the rule was confined to material alterations, on the ground that the motive of an act cannot be inquired into, unless the rights of parties are materially affected.

16 See cases in note 12, these being properly cases of spoliation.

*CHAPTER III.

[*36]

EXPRESSED INTENTIONS.

Expressed Intentions only regarded: General Purpose effected notwithstanding ineptitude of Form used: Instruments construed as Covenants to stand seised, Grants, Releases, Bargains and Sales, Feoffments, Leases, and Appointments.

Rule 8.-Expressed intentions. To interpret a deed, we must discover the expressed intention of the parties."7

Explanatory Observation.-Intention.-The word "intention" may be understood in two senses, as descriptive of, either (1) that which the parties intended to do, or (2) of the meaning of the words that they have employed; here it is used in the latter sense.18 See the remarks of Lord Wensleydale: Abbott v.

17 Thomas v. Hatch, 3 Sumn. 170; Moore v. Griffin, 22 Mo. 350; Deering v. Long wharf, 25 Me. 51; Pike v. Monroe, 36 Mo. 309; Bell v. Woodward, 46 N. H. 337; Mills v. Catlin, 22 Vt. 98; Collins v. Lavelle, 44 Vt. 230; Litchfield v. Cudworth, 15 Pick. 23; Frost v. Spalding, 19 Pick. 445; Bent v. Rogers, 137 Mass. 192; Bryan v. Bradley, 16 Conn. 475; Jackson v. Meyers, 3 Johns. 388; S. C. 3 Am. Dec. 504; Jackson v. Blodgett, 16 Johns. 172; Waterman v. Andrews, 14 R. I. 589; Wager v. Wager, 1 S. & R. (Pa.) 374; Means v. Presb. Church, 3 W. & S. (Pa.) 312; Tyler v. Moore, 42 Pa. St. 387; Huss v. Stephens, 51 Pa. St. 282; Phillips' Est., 93 Pa. St. 50; Barnes v. Haybargen, 8 Jones (N. C.), 76; Jennings v. Brigladine, 44 Mo. 332; Waffle v. Scarborough, 2 Ohio St. 361; Braman v. Mesick, 10 Cal. 95; Mulford v. LaFrance, 26 Cal. 88. "The only rule of much value is to place ourselves as near as possible in the seats which were occupied by the parties at the time the instrument was executed; then taking it by its four corners, read it." Walsh v. Hill, 38 Cal. 487.

18 A deed must be interpreted according to the force of the language used by the grantor and the apparent intention deducible therefrom. Thomas v. Hatch, 3 Sumn. 176. In the construction the expressed will of the parties is to control." Jennings v. Brigladine, 44 Mo. 332; Pike v. Monroe, 36 Mo. 309; Moore v. Griffin, 22 Me. 350; Mills v. Catlin, 22 Vt. 98; Benedict v. Gaylord, 11 Conn. 332; Wolfe v. Scarborough, 2 Ohio St. 361; Mulford v. LaFrance, 26 Cal. 88. "If the language clearly indicates the intention of the parties that intention will stand, notwithstanding the law may prevent its being carried into effect." Deering v. Longwharf, 25 Me. 62. The effect of a deed must be the effect of its language. An expressed motive of the grantor cannot control it. Manzy v. Manzy, 79 Va. 527.

6 INTERPRETATION OF DEEDS.

81

Middleton, 7 H. L. C. at p. 114; Grey v. Pearson, 6 H. L. C. 106. The rule is clearly enunciated by Byles, J., in Hayne v. Cummings, 16 C. B. N. S. 427.

In other words, the question always is, "What is the meaning of what the parties have said?" not, "What did the parties mean to say?" The latter question is one which the law does not permit to be asked; it being a presumption juris et de jure, to rebut which no evidence is allowed, that the parties intended to say that which they have said.

"As far as it may stand with the rule of law, it is honourable for all judges to judge according to the intention of the parties, and so they ought to do;" Co. Litt. 314b.

[*37] *"The question in this, and other cases of construction of written instruments is, not what was the intention of the parties, but what is the meaning of the words they have used;" per Lord Denman, C. J., Rickman v. Carstairs, 5 B. & Ad. 663.

"The question is not what the parties to a deed may have intended to do by entering into that deed, but what is the meaning of the words used in that deed: a most important distinction in all classes of construction, and the disregard of which often leads to erroneous conclusions;" per Lord Wensleydale, Monypenny v. Monypenny, 9 H. L. C. 146.

"I am disposed to follow the rule of construction which was laid down by Lord Denman and Baron Parke. . . . They said that in construing instruments you must have regard, not to the presumed intention of the parties, but to the meaning of the words which they have used;" per Brett, L. J., Ex parte Chick, Re Meredith, 11 Ch. D. 739.

"One must consider the meaning of the words used, not what one may guess to be the intention of the parties; " per Jessel, M. R., Smith v. Lucas, 18 Ch. D. 542.

In Throckmerton v. Tracy, 1 Plowd. 160, the following rules were laid down by Staunford, J., for interpreting deeds: "First, that deeds shall be taken most beneficially for the party to whom they are made (see rule 21); secondly, that a deed shall never be void, where the words may be applied to any intent to make it good (see rule 16); and upon this he cited Bracton, who saith, 'Benigne faciendæ sunt interpretationes instrumenti, ut res magis valeat quam pereat,"19 and in another place he saith, 'in re dubiâ ;' thirdly, that the words shall be construed according to the intent 19 A deed should be construed as intended to have some effect. It will not be intended that the parties meant it to be a nullity, and a construction making it operative will be preferred to one rendering it void. Abbott v. Holway, 72 Me. 298; Gans v. Aldridge, 27 Ind. 292; Hoffman v. Mackall, 5 Ohio St. 124; Anderson v. Baughman, 7 Mich. 69; Riggin v. Love, 72 Ill. 556; Dismukes v. Parrott, 56 Ga. 513.

of the parties, and not otherwise; and here he cited what Bracton saith, Carta non est nisi vestimentum donationis,' and the intent directs gifts more than the words."

In Smith v. Packhurst, 3 Atk. 136; S. C. sub nom. Parkhurst v. Smith, Willes, 327, Willes, C. J., says, in delivering the unanimous opinion of the Judges to the House of Lords: "I shall lay down some general rules and maxims * of the [38] law, with respect to the construction of deeds. 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 (see rule 9). Another maxim is, 'that such a construction should be made of the words in a deed, as is made 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.'"

Technical words. In the great case of Cholmondeley v. Clinton, (2 Ja. & W. 91), Plumer, M. R., says: "The real intention of the framer of the deed, the written declaration of whose mind it is always considered to be, is the end and object to the discovery and effectuating of which all the rules of construction, properly so called, are uniformly directed. When technical words or phrases are made use of, the strong presumption is, that the party intended to use them according to their correct technical meaning (see p. 48); but this is not conclusive evidence that such was his real meaning. If the technical meaning is found, in the particular case, to be an erroneous guide to the real one, leading to a meaning contrary to what the party intended to convey by it, it ceases to answer its purpose. The deed may be drawn inartificially, from ignorance or inadvertence, or other causes; but still, if there is enough clearly to convey information as to the real meaning, the object is attained. The mind is with certainty discovered, and being known, must be the guide, or the act and deed would not be the act and deed of the party, but of the court. Because the words, which are the signs of the ideas of the persons using them, are in general, and in the correct use of them, the signs of ideas different from those of which in the particular case, they are found less technically and correctly, but with equal certainty, to be the signs; can it follow that they are to be construed, to represent the ideas of which [*39] they are known not to be the signs, in preference to those of which they appear to be the signs? Where is the authority that compels the court to go this length in its adherence to technical meaning? The contrary has been long and universally established to be the rule by the highest authorities from the ear

*