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Doe v. Williams, infra.
ante, c. 4. $ 45.
597. Cowp. 597.
although the conveyance was void as a lease and release ; yet, the husband being in possession, and the word grant being inserted in the release, it should take effect as a grant or assignment of his whole interest at common law.
36. A release will be construed to operate as a grant of a reversion, in order to effectuate the intention of the parties.
37. Robert Edwards being entitled to a reversion in fee, expectant on an estate for life, by deed of release, renounced, remised, released, and for ever quit-claimed all the said premises to A., and the heirs male of his body; and all his right, title, and interest therein. It was contended, that nothing passed by the release in this case, for want of proper operative words. There were appropriated terms to every conveyance; and where the word grant was used, being genus generalissimum, if the instrument could not take effect according to its proper form, it should operate in some other, if by law it could. But here the words were, renounce, release, and quit-claim ; which were the special form of words adapted to a release only : therefore it could not operate as a grant. 1 Inst. 301 b.“ A release, confirmation, or surrender, &c. cannot amount to a grant.” In the case of Roe v. Tranmer, the word grant was used ; and so it was in the cases there cited: but here there was no such word, nor any thing equivalent to it; consequently, nothing passed by the deed. Lord Mansfield said, the rules laid down in respect of the construction of deeds, were founded in law, reason, and common sense ; that they should operate according to the intention of the parties, if by law they might; and if they could not operate in one form, they should operate in that which by law would effectuate
the intention. But an objection was made in this case, which, it was said, took it out of the general rule, and the doctrine of the authority cited : that was, that in the release in question, the word grant was not made use of. But that the intention of the parties was to pass all the right and title of the plaintiff in the premises, was manifest beyond a doubt.
Mr. Justice Aston observed, that this was the Vide Chester common wording of a releasee ; but though in the v. Willan,
Eustace v. shape of a release, if there were sufficient words, it Scawen.
Tit. 18. c. 2. might operate as a grant.
$ 27, 28. Judgement was given upon another point.
38. Where a deed of bargain and sale is not en- 11 Ves. 625. rolled, relief may notwithstanding be had in equity upon it, as an agreement to convey : an obligation arising upon it from the payment of the money. It may also be good as a grant of the reversion, if the ante, c. 4.
:ww $ 45. lands are in the occupation of tenants.
39. All modern deeds contain, in the granting part, a great number of the most operative technical words. Thus, in a release, the words, grant, bargain, sell, release, and confirm, are always used : because, if the conyeyance should not happen to be good as a release, it may operate as a grant, a bargain and sale, or a confirmation.
40. Where a deed may enure in different ways, the Where the person to whom it is made shall have his election Grantee has
an Election which way to take it. Thus, if a deed be made by how to take. the words dedi et concessi ; this in law may amount to
Touch, 83. a grant, feoffinent, gift, lease, release, confirmation, or surrender. And it is in the choice of the grantee to plead or use it the one way or the other. 41. Sir R. Heyward, being seised in fee of the Heyward's
Case, -manor of D. &c., and of divers lands and tenements, 2 Rev. 35. whereof part was in demesne, part in lease for years,
with rents reserved, and part in copyhold; by indenture, in consideration of a sum of money paid to him by R. W. and E. P., demised, granted, bargained, and sold, to the said R. W. &c., the said manors, lands, tenements, and the reversions and remainders of them, with all rents reserved on any demise; to hold to them and their assigns, presently after the decease of the said R. Heyward, for the term of 17 years; which indenture was enrolled. Afterwards the said Sir R. H., by another indenture, covenanted with T. F. and others, to stand seised of the premises to the use of himself and the heirs of his body; and no attornment was made under the first conveyance. The question was, whether the bargainees should have election to take by the bargain and sale in toto, notwithstanding their general entry; or whether the estate which passed as an interest at common law, should be preferred before the raising an use. It was resolved by Popham and Anderson, chief justices, and the whole Court of Wards, that R. W. and E. P. had election to take it, either by demise at the common law, or by bargain and sale : for where a person seised in fee, for money, demises, grants, bargains, and sells his lands for years, he who is owner of the land, by his express grant, gives election to the lessee to take it by the one way or the other; for 'he hath sole power to pass it by demise or bargain; and therefore the law will not make construction against such express grant : and namely, in this case, where it would tend to the prejudice of the lessees; for if the law should force them to take it by demise, then they would lose the rents reserved upon the leases for years. It was also resolved, that this right of election continued, notwithstanding the alteration of the estate by the second indenture, the death of the
lessor, and the Queen's right to the wardship of the heir. And that where an estate passes, and the 1 Inst, 145 a. donee or grantee has a right of election, such right descends to his heirs or executors.
42. A lease was made to A. for 20 years, rendering Darrell v. rent. A. entered ; afterwards the lessor for money paid by B., demised, granted, and to farm let to B. the 206.
2 Roll. Ab. same land for four years from the date of the said
787. pl. 7. indenture; and afterwards enfeoffed by deed the second lessee, before he had elected to take the lease by way of bargain and sale, or otherwise, and before any rent paid to him: and neither upon the deed of feoffment, nor after, did he declare what way he took the lease; nor had he any attornment from the first lessee : and therefore Jones, Just. was of opinion, that B. had election to take it by demise at common law, or by way of bargain and sale, executed by the stat. 27 Hen. VIII., according to Heyward's and ante. Fox's case : but till election, he should take it as a lease at common law; and if there was no attornment, it was as a future interest : but if he had received the rent of the first lessee, this had been an election in law to take it by way of bargain and sale. · 43. It is laid down by Jenkins, 166, that against a No Aver
ments ad consideration alleged in a deed, or an use declared, mitted no averment to the contrary can be received. So of against
Deeds. indentures upon fines and recoveries, where the fines and recoveries pursue them. Nihil est tam naturale quam quilibet dissolvi, eo modo quo ligatur. Contract by contract ; deed by deed; record by record; parliament by parliament. And since the statute of frauds, by which all contracts for lands must be in writing, no averment founded on parol evidence, which tends to contradict or vary a written agreement is, in general, admissible.
44. Upon a motion for a new trial, the facts were, that an agreement in writing was entered into, by which it was stipulated that the grass and vesture of hay, of a close called Boreham Meadow, was to be taken by one Ansell. The subscribing witness to the agreement deposed, that when the written agreement was made, it was also agreed by the parties by parol, that Ansell should not only have the hay of Boreham Meadow, but also the whole possession and soil thereof, and of another close called Millcroft. Lord Mansfield admitted this evidence; but the Court of Common Pleas said,—“ We are all clearly of opinion, that no parol evidence is admissible to disannul, and substantially to vary, a written agreement. The parol evidence in the present case , totally annuls, and substantially alters and impugns, the written agreement."
45. An action on the case was brought for the use and occupation of a house, of which, it was agreed in writing, that a lease should be let by Christiana Preston to Abraham Gamage, for 21 years, at 26 l. per annum. Gamage died, and made Merceau his executor, who paid into court 261. for one year's rent. On the trial the plaintiff offered to show by, parol evidence, that besides the 26 l. per annum, the defendant had agreed to pay 21. 12 s. 6d. a year, being the ground-rent of the premises, to the ground landlord; but no evidence was offered of the actual payment of such ground-rent during the testator's life ; withoạt which, Ld. Ch. Just. de Grey thought such parol evidence inadmissible, and nonsuited the plaintiff. Upon a motion to set aside the nonsuit, Mr. Justice Blackstone declared his opinion that it was right to reject this evidence. That courts should
Preston v. Merceau, 7 Bloemen 1249.