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. interpretatio. Therefore every part of a deed ought, 112. 1 P. 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 Wms. 457. 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. 6 Mod. 107. 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 clausula 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, 6 Rep. 38 b. Grumsden, 335. 10 Rep. 28 a. Atto v. 2 Buls. 282. shall stand for otherwise the general words would have no effect. 9. Mala grammatica non vitiat chartam : so that neither bad Latin, nor bad English, will make a deed void. 10. The law will construe that part of a deed to precede, which ought to precede. As if a person Hemmings, makes a lease reserving rent, habendum for 20 years; 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 reserIvation 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; Bro. Ab. 2 Bulst. 298. 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. 12. Ancient charters are to be taken according to Grants, 89. the ancient usage: for there are many old grants 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. 183 a. 1 Inst. 273 b 14. Thus, if lands be let in the premises of a deed, I Inst. 42 a. or a rent granted, generally; an estate for life will pass. So if a man makes a lease for the life of B., and afterwards releases to A. all his right in the land, A. will take an estate for his own life; because that is higher than an estate for the life of another. 15. Where general words stand alone in a release, unqualified by any recitals, they shall be construed most strongly against the releasor. But where there is a particular recital in a deed, and general words of release are afterwards inserted; the generality of the words shall be qualified by the recital. Handson, 16. A release was executed in pursuance of an Henn v. award; in which a release of all demands was in- 1 Sid. 141. serted. It was contended, that the words were sufficient to release a growing rent: but it was determined, that they should not have so extensive an effect; because they were qualified by a particular 235. recital. 17. A distinction must however be made, in cases of this kind, between an indenture and a deed-poll. For the words of an indenture executed by both parties are to be considered as the words of both: but in a deed-poll, they are the words of the grantor, and shall be taken most strongly against him. 18. If the words of a deed will bear two different senses, the one conformable to law, and the other against it; that sense shall be preferred which is conformable to law: for it is also a maxim, quod legis constructio non facit injuriam. Thus if a tenant in tail creates an estate for life generally, it shall be only for the life of the tenant in tail; for otherwise it would operate as a wrong. 19. The word and is sometimes construed in a disjunctive sense, in order to support the intention of the parties. Thorpe v. 1 Ld. Raym. 1 Leon. 246. Owen, 251. 8 Mod. 312. 1 Inst. 42 a. 183 a. & b. Chapman v. 20. A person leased lands for 21 years, and covenanted with the lessee to make to him and his assigns 1 Inst. 225 a. a lease for 21 years, to commence after the end of Plowd. 289. 4 Mod. 156. Cook v. Booth, infra, c. 24. Words sometimes rejected. Tit. 16. c. 1. $48. the first term. The lessee died, and his executor brought an action of covenant for a second lease. The Court held that the word and should be construed or, in the disjunctive; therefore that the lessor was bound to make a new lease to the executor of the lessee, as being his assignee in law. 21. It was held in the case of Davis v. Speed, that no estate will arise by implication in a deed: though in conveyances deriving their operation from the statute of uses, a use may arise to the owner of the estate by implication; to which the statute will transfer the legal estate. 22. In some cases deeds have been construed according to the manner in which the parties themselves appeared to have understood them. But this doctrine has been lately denied; and it has been laid down, that a legal instrument shall not be construed by the acts of the parties. 23. Where there are any words in a deed that evidently appear repugnant to the other parts of it. and to the general intention of the parties, they will be rejected, as insensible. For the words are not the principal things in a deed, but the intent and design of the parties. 24. Thus, in the case of Berrington v. Parkhurst, where lands were limited to A. for 99 years, if he should so long live; and from and after the death of A. or other sooner determination of the estate limited to him for 99 years, to the use of trustees and their heirs, during the life of A., to preserve contingent remainders; it was determined that the words "and from and after the death of A." should be re jected, as insensible and repugnant to the subsequent words. supplied. 25. An evident omission or mistake will be supplied Omissions in a deed. Thus in a case where the name of the bargainor was omitted in the operative part of a bargain and sale, it was supplied. 26. Lord Say and Sele conveyed his estate to B. K., for the purpose of making him tenant to the præcipe, by a deed of bargain and sale, which was worded in the following manner: "Witnesseth that for and in consideration of five shillings by the said B. K. to the said Lord S. in hand paid, as also for the cutting off of all entails, &c., and for settling and assuring the same to the said Lord S. and his heirs, doth bargain, sell, and confirm unto the said B. K., &c. The Court was of opinion that this deed passed the freehold; because such was the plain intention of it. Lloyd v. Say & Sele, Ca. 73. Upon a writ of error in the House of Lords, it was 4 Bro. Parl. contended, that this bargain and sale could not convey any estate, because it was not mentioned therein that any person did bargain and sell. On the other side it was argued, that it appeared prima facie that the consideration money was paid by B. K. to Lord S., and that it was for barring all entails and remainders in the premises, and assuring the same to Lord S. and his heirs. That it appeared, as well by this deed as by the evidence on the trial, that the lands therein mentioned were the estate of Lord S,; and that the intent of the deed was to make B. K. tenant of the freehold, in order that a common recovery might be suffered therefore the Court of K. B. was of opinion that the freehold was well conveyed by the deed. The judgement was affirmed. 27. Where there is an evident mistake in a mar- Settlements riage settlement, the Court of Chancery will rectify it. rectified. |