« PreviousContinue »
Sir Francis Englefield. For although the tender of a ring was a thing that might be done by any person, yet, as that circumstance was only a mark of the intention of Sir Francis Englefield, which intention must arise from the opinion he himself should form of his nephew's future disposition and conduct, thereföre no person but Sir Francis himself could direct the tender of the ring. But the Judges held, that the whole force and effect of the power of revocation depended on the tender of the ring, so that the Queen might lawfully execute the power, and therefore judgement was given for the Crown. .
Lord Coke observes, that the counsel of Francis Englefield were not satisfied with this judgement; and therefore advised a writ of error; but at
the next parliament a special act was passed to estaI Hale Bc blish the forfeiture in the Queen. And Lord Hale
d on this case, that if Sir Francis Englebeld had died before the Queen had made the tender, then the condition, which was only limited to him during s lite, had been determined, and the Queen could not have tendered; for the attainder could
204 lengthen the condition, longer than the first werk ist lauitation.
28. power given to a person, having a particular De tempus estate in the land, may be merged by his acquisition
of the tee simple.
. An estate was limited to John Hay for life, Ambasa... Pomainder to his wife for life, remainder to the
children of the marriage in tail, remainder to the survivor of the husband and wife in fee; with a power to the husband, by deed or will, to charge the lands with a rent. There was no issue; and the husband in the lifetime of his wife, by will, reciting the power, devised, in execution of his power, and of
all other powers, a rent of 100 l. a year; and survived his wife.
Lord Thurlow said the power was merged; but he was also of opinion, that though the power was gone, and the will purported to be an execution of the power; yet as he evidently meant the charge should take place on the estate at all events, it must be sustained as a charge on the estate, out of the interest he had at his death.
Where there 30. Where there is no object for the execution of is no Object
of a Power, a power, it of course becomes void.
it becomes 31. Thus where a person had a power given him void.
Roe v. Dunt, by his marriage settlement, to appoint the lands to 2 Wils. R. the children of the marriage ; and for default of 336. appointment, then to all the children equally; and there was but one child ; an appointment to that child was held to be yoid, because he took under the limitation in the settlement.
1. General Rules.
| 44. But admitted in support of 23. Words sometimes rejected. I
them. 25. Omissions supplied.
51. And where there is an Ambi:27. Settlements rectified.
guity. 29. Where a Deed is uncertain, it 54. And where there is Fraud. is void.
55. Where a Deed operates as an 31. Some Operation is always Estoppel. given to a Deed.
61. Construction of Conveyances 40. Where the Grantee has an
to Uses. Election how to take. | 65. of Declarations of Trust. 43. No Averments admitted 67. Of Articles of Agreement.
1. Inst. 36 a. Plowd. 154. 160.
SECTION 1. TN the construction of deeds, there are two sorts 1 of rules : one general, and applicable to every kind of deed: the other particular, and applicable only to some kind of deeds; or to some particular part of a deed.
2. With respect to the first sort, it is a maxim of the highest antiquity in the law, that all deeds shall be construed favourably, and as near the apparent intention of the parties as possible, consistent with the rules of law-Benignæ sunt faciendæ interpre. tationes chartarum, propter simplicitatem laicorum; ut res magis valeat quam pereat.
3. If, however, the intention of the parties be contrary to the rules of law, it will then be otherwise ;
for it would be highly improper and inconvenient to permit private persons to contradict the general rules of law. Thus, if a person conveys lands to another 1 Inst. 46 b. and his heirs for 21 years; the executor of the grantee, and not his heir, will be entitled to the land ; because it is a rule of law that a term for years is but a chattel.
4. Quoties in verbis nulla est ambiguitas, ibi nulla 2 Saund. 167. expositio contra verba expressa fienda est. And where the intention is clear, too minute a stress ought not to be laid on the strict and precise signification of words : according to another maxim-qui hæret in litera, hæret in cortice. . . . . . ..
5. The construction ought to be made on the entire deed, and not merely on any particular part of it. Ex antecedentibus et consequentibus fit optima Carter, 98. inlerpretatio. Therefore every part of a deed ought, 112. 1 P..
Wms. 457. if possible, to take effect ; and every word to operate. Vaugh. 167.
6. Verba posteriora propter certitudinem addita ad priora, quæ certitudine indigent sunt referenda. And if certainty once appears in a deed, and afterwards in 4 Leon. 248. the same deed it is spoken indefinitely, reference shall be to the certainty which appears... · 7. Subsequent words shall not defeat precedent Hard 94. ones, if by construction they may stand together. OM But where there are two clauses in a deed, of which the latter is contradictory to the former, there the former shall stand.
8. Quando carta continet generalem clausulam, posteaque descendit ad verba specialia, quæ clausulæ generali sunt consentanea ; interpretanda est carta secundum verba specialia. But it is also a maxim, that generalis Carth. 120. clausula non porrigitur ad ea quæ antea specialiter sunt comprehensa. Therefore, when the deed at first contains special words, and afterwards concludes in general words ; both words, as well general as special,
shall stand: for otherwise the general words would
have no effect. 6 Rep. 38 b. 9. Mala grammatica non vitiat chartam : so that Cromwell v. neither bad Latin, nor bad English, will make a deed Grumsden, 1 Ld. Raym. void. 335.
. 10. The law will construe that part of a deed to 10 Rep. 28 a. Atto “ precede, which ought to precede. As if a person Hemmings: makes a lease reserving rent, habendum for 20 years; 2 Buls. 282.
so that the reservation is placed before the habendum, yet it is good ; and the Judges by their construction are so to marshal the words, as to make it a reser'vation of rent for the whole term.
11. It is a maxim of law, that idem semper refertur 1 Inst, 20 b. proximo antecedenti. Therefore if a man gives lands
to A. in tail, remainder to B. in eadem forma ; B. will take an'estate tail. But if an estate be limited to A. for life, remainder to B. in tail, remainder to
C. in forma prædicta ; it is void for uncertainty. Bro. Ab.
12. Ancient charters are to be taken according to Grants, 89. the ancient usage: for there are many old grants 2 Bulst. 298.
generally and insufficiently made, so that at this day they would be void : but being before time of memory, and having been used since, therefore they are good; and many liberties and franchises used thereby are
likewise good. 1 Inst. 183 a. 13. A deed is always construed most strongly
against the grantor. -Verba chartarum fortius accipi. untur contra proferentem ; et quælibet concessio fortissime contra donatorem interpretanda est. For the principle of self-interest will make men sufficiently careful not to prejudice themselves, by using words of too extensive a meaning. And all manner of deceit is hereby avoided in deeds; for people would always affect ambiguous expressions, if they were afterwards at liberty to put their own construction on them.