but the land itself passes; for they are compound. 52. If a person grants aquam suam, the soil will Id. 4 b. not pass; but only the right of fishing in that water: for the proper words, in that case, to pass the soil, would be, so many acres of land aqua coopertas, covered with water. But the word stagnum, or pool, will pass both the water and the land. 53. It has been stated, that tithes will not pass Tit. 22. § 3. under the denomination of land; and that a release of all claims arising out of lands would not affect them; so that they can only be conveyed by the word tithes. 54. The word tenement is of greater extent than 1 Inst. 6 a. any that has been mentioned: for though in its usual acceptation it is only applied to houses and other buildings; yet in its original, proper, and legal sense, it signifies every thing that may be holden, provided it be of a permanent nature; whether it be of a substantial and sensible, or of an unsubstantial ideal kind. Thus, the words liberum tenementum, or frank tenément, are applicable, not only to land, but also to rents, commons, offices, and the like. hum. 8. 55. The word hereditament is much the largest and 1 Inst. 6a. most comprehensive one used in deeds; for it includes Fearne Postnot only lands and tenements, but also whatever may be inherited; be it corporeal or incorporeal, real, personal, or mixed. Thus, an heir-loom, or piece 3 Atk. 82. of furniture, which by custom descends to the heir, together with a house, is neither land nor tenement, but a mere moveable; yet being inheritable, it is comprised under the general word hereditament. And so a condition, the benefit of which may descend to a person from his ancestor, is also an hereditament. Tit. 1. § 3. 1 Term R. 56. Notwithstanding the maxim cujus est solum, Doe v. Burt, &c., a lease of a yard will not pass a cellar, situated under that yard; if it can be shown by evidence that the cellar was not intended to be demised. 701. Doe v. 25. The words, all lands and meadows to the said messuage or mill belonging, or used, occupied, or enjoyed, or deemed, taken, or accepted as part thereof, inserted in a release, have been held to pass leasehold, as well as freehold lands. the words, 57. In consequence of the maxim, id certum est Touch. 250. quod certum reddi potest, lands will pass in a deed by all that the estate in the tenure of J. S., or all that estate which descended to the grantor from J. S., or all the grantor's lands in the county of B. And it is very common, after a particular description of the estates intended to be granted, to insert the words; and all other the messuages, &c. of the said A. B. in the county of C. Effect of Id. 105. 58. Lord Bacon says, veritas nominis tollit errorem demonstrationis. And therefore, if lands are described, in the first instance, by their proper name; as the manor of Dale; or by their abuttals, as a close of pasture bounded on the east by Endsdenwood, on the south by, &c. ; or if the general boundary is mentioned, and the grantor has no other lands in the same precinct; or if the lands are described by their appendancy to other lands more notorious, as parcel of the manor of A.; in all these cases, if there be an error in any addition made to these names or descriptions, it will have no effect. 59. Thus, if a person grants his close called Dale, in the parish of Hurst, in the county of Hants, and the parish extends into the county of Berks, and the whole close of Dale lies in the county of Berks; yet, because the parcel is especially named, the falsity of Windham v. the addition hurteth not. Windham, v. Adams, 60. In a case reported by Plowden, where a lease Wrottesley was made of all that the farm of Brosley, then in the Plowd. 191. tenure and occupation of R. Wilcox; which was not the fact; the Court said, that the word farm had a certainty in itself: and when the description went farther, and said, in the tenure and occupation of R. Wilcox, this was of no effect; for if it was not in his tenure and occupation, yet it should pass : because there was a certainty in the thing demised, viz· the farm of Brosley; and so another certainty put to a thing which was certain enough before, was of no manner of effect. 61. But if there is an error in the principal description of the thing intended to be granted, though there be no error in the addition, nothing will pass. Thus, Lord Bacon says, if a person grants tenemen- Tra. 105. tum suum, or omnia tenementa sua, in the parish of St. B. without Aldgate, where in truth it is without Bishopsgate, in tenura Gulielmi A., which is true, yet the grant will be void: because that which sounds in denomination is false, which is the more worthy; and that which sounds in addition is true, which is the Dowtie's Case, less. And though the words, in tenura Gulielmi A., 3 Rep. 9. which is true, had been first placed, yet it had been Hob. 171. all one. 62. Where words of addition are mistaken, and contrary to the real fact, they will not even operate as a restriction on the preceding words. Eyres, 63. A corporation demised, in these words-all that Swift v. their glebe land lying in Chesterton, viz. 78 acres of Cro. Car. land, and also the demesnes of the said 78 acres, with 546. all the tithes of the said parish of Chesterton, and also the tithes of the said 78 acres; all which lately were in the occupation of Margaret Peto deceased. The tithes of the lands demised never were in the occupation of Margaret Peto; and the question was, whether they passed to the lessee. It was urged for the plaintiff that the words, in the occupation of M. Peto, were a clause of restriction, which showed an intent that nothing should pass but what was in her occupation. But all the Judges held the lease good, and no restriction of the first words, because there were three distinct clauses before. 1°. The grant of the 78 acres of glebe. 2°. The grant of the tithes. 3. The grant of the tithes of the 78 acres of glebe which were all distinct several clauses by themselves. And the clause, all which, &c., did not depend on any of them; for the words, "which were, &c." was a restriction only, when the clause was general, and was all but one and the same sentence; and not ended or certain before the end of the sentence. But where the clause was not in one entire sentence, but distinct and disjoined from the other, as here it was, there could not be any restriction. Also this being in the case of a common person, addition of a false thing; viz. false possession, shall never hurt the grant: for the addition of a falsity shall never hurt, where there is any manner of certainty before. Wherefore they all concluded that the grant was good; and observed, that though the words" which were in the tenure of M. P." when they are in one and the same sentence, may be construed to be a restriction; yet in these words, "all which were, &c." the word all, so disjoined, could not be a restriction, but an explanation. 64. Where the lands are first described generally, and afterwards a particular description is added, that shall restrain the general words. Thus if a man grants all his lands in D. which he has by the gift and feoffment of J., S. nothing will pass but lands of the gift and feoffment of J. S. But if he had granted all his lands in D. called N., which was the estate of J. S., there the lands called N. shall pass though they never were the estate of J. S. Bro. Ab. 65. The next clause usually inserted in the pre- Clause re mises of a deed, where the fee simple is conveyed, is, Deeds. specting together with all deeds, evidences, and writings, 66 &c." For although in general, deeds follow the land, Rep. 1 a. and a purchaser in fee, without warranty, is entitled to them, though not particularly granted, yet it is not amiss to insert this clause. And in conveyances to 1 Inst. 6. uses, it ought never to be omitted, because in that ". 4. case there is a doubt whether the deeds pass to the releasees to uses, or to the cestui que use. 66. In Lord Buckhurst's case it was resolved, that 1 Rep. 1. if a person made a feoffment with warranty, by which he was bound to render in value, there, without an infra,c. 24. express grant, the feoffee should not have the charters that comprehended warranty, upon which the feoffor might have his warranty paramount. Touch. 77. 67. The next clause in the premises of a deed is Exception. that whereby the grantor excepts something out of that which he has before granted; by which means it does not pass by the grant, and is severed from the thing granted. 68. The following circumstances are necessary to Idem. make a good exception. 1°. It must be made by apt words. 2°. The thing excepted must be part of the thing previously granted, and not of any other thing. 3°. It must only be a part of the thing granted; for if the exception extends to the whole, it will be void. 4°. It must be of such a thing as is severable from the thing granted; and not an inseparable |