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14. Thus, if lands be let in the premises of a deed, 1 Inst. 42 d. or a rent granted, generally; an estate for life will 1834.
1 Inst. 273 6pass. 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 generał words stand alone in a release, unqualified by any recitals, they shall be constrned 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. 16. A release was executed in pursuance of an Henn v.
Handson, award; in which a release of all demands was in serted. It was contended, that the words were sufficient to release a growing rent: but it was deter- Thorpe v. mined, that they should not have so extensive an Thorpe, effect; because they were qualified by a particular 235. recital.
17. A distinction must however be made, in cases i Leon. 246. of this kind, between an indenture and a deed-poll.
• 8 Mod. 312. 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 1 Inst. 42 a.
183 a. & b. 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.
Chapman v. '20. A person leased lands for 21 years, and cove-
the first term. The lessee died, and his executor
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. 4 Mod. 156. 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 them. Cook v. selves appeared to have understood them. But this Booth,
doctrine has been lately denied ; and it has been laid infra, c. 24.
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 times rejected.
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, Tit. 16. c. 1. 24. Thus, in the case of Berrington v. Parkhurst, 18.
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.
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., Lloyd r.,
Say & Sele, for the purpose of making him tenant to the præcipe, i Šalk. 341. by a deed of bargain and sale, which was worded in 10 Mod. 40. 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 free. hold; because such was the plain intention of it. Upon a writ of error in the House of Lords, it was 4 Bro. Parl,
Ca. 73. 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.
Uvedale v. 28. In a settlement lands were limited to the husHalfpenny, 2 P. Wms.
band for life, remainder, as to part, to the wife for 151.
life, remainder of the whole to the first and other sons. of the marriage in tail male, remainder to trustees for 500 years, to raise portions for the younger sons and daughters : the trust of the term was declared to be to secure maintenance for the younger children from the husband's death, and to pay the portions of the younger sons at 21, and of the daughters at 21 or marriage. The eldest son suffered a recovery of the estate tail. A bill was brought to rectify the mistake in the settlement, in placing the term after the limitation to the first and other sons in tail ; whereas
the term should have come in before that limitation. Targus V. Sir J. Jekyll decreed that the settlement should be Puget, 2 Ves: 194. rectified, by placing the term of 500 years before the
estate tail. Where aDeed 29. Where the words of a deed are so uncertain is uncertain,
that the intention of the parties cannot be discovered, 1 Inst. 20 b.
the deed will be void. Thus a gift to A. or B. or to one of the children of J. S., he having four children, is
void for uncertainty. Windsmore 30. Lands were demised to T. H., habendum to v. Hobart, Hob. 313. the said T. H. and three other persons successivè.
Resolved, that no one could take immediately but T. H., because he was the only party to the deed, for the rest were only named in the habendum : and that the others could not take by way of joint remainder, on account of the word successivè, nor in succession ; on account of the uncertainty who should take first,
and who should follow Some Opera- 31. Where a deed cannot operate in the manner tion is always given to a' intended by the parties, it will be construed in such Deed.
a manner as to operate in some other way. Quando Hob. 277.
quod ago non valet ut ago, valeat quantum valere potest.
In consequence of this principle it has been deter- , mined, that a deed which was intended to operate as a lease and release, or bargain and sale, but could ante, ch. 9. not take effect in that manner, should operate as a 27 covenant to stand seised.
32. A deed intended to operate as a bargain and sale, but which was void for want of a pecuniary consideration, has been held to operate as a confirmation. 33. A father by indenture, in consideration of the Osborn v.
Churchman, love he bore his son, bargained, sold, gave, granted, Cro. Ja. 127. and confirmed certain lands to him and his heirs. The deed was enrolled; and the question was, whether the lands should pass. It was held they should not, unless money had been paid, or estate were executed; for the use should not pass : but because the son was then in possession, it was held to enure by way of confirmation.
34. So where a conveyance was void as a lease and release, because the releasor had only a term for years in the land, it was resolved that it should operate as a grant and assignment. · 35. A person possessed of lands for a term of 999 Marshall v.
Franks, years, by lease and release, for a valuable considera- Gilb. R. 143. tion, granted, bargained, sold, and demised them to trustees and their heirs, to the use of himself and his wife for their lives, remainder to the heirs of the wife; and covenanted that he was seised in fee. It was argued, that nothing passed by this conveyance; for it being only a term in gross, no use passed to the trustees by the statute 27 Hen. VIII., which only raises a use out of a freehold : that no use passed by the lease for a year, or bargain and sale, and therefore the release could not operate by way of enlargement. But the Chancellor was of opinion, that