Chapman v. Dalton, Plowd.. 289. 1 Inst. 225, a.. Bro. Ab. Tit. 2 Bulst. 298. 4 Mod. 1 16. 20. A person leased lands for twenty-one years, and covenanted with the lessee to make to him and his assigns a lease for twenty-one years, to commence after the end of 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. Ancient charters are to be taken according to ancient usage; for there are many old grants generally and insufficiently made, so that at this day they would be void. But being made before time of memory, and having been used since, they are good; and many liberties and franchises used thereby are likewise good. 22. 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. 23. In some cases deeds have been construed according to the manner in which the parties themselves Cook v.ooth, 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. infra, c. 2. 24. Where the words of a deed are so uncertain that the intention of the parties cannot be discovered, the deed will be void. Thus a gift to A. or B., or to one of the children of J. L., he having four children is void for uncertainty. And it has been stated, that if an estate be limited to A. for life, remainder to B. in tail, remaina'er to C. in formâ prædictâ, it is void for uncertainty. 25. 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. 26. Thus it is stated in Broke's Ab., that if a Tit. Estates, feoffment in fee be made to W. N. during the life of J. S. The words, during the life of J. S., would be rejected, because they were contrary to the fee. 27. A rent of 201. was granted to B. and M. habendum to them after the decease of one C. and D. or either of them during the lives of B. and M. and the longer liver of them, the first payment to begin after the decease of the said C. and D., or either of them. And if the said rent should be unpaid, that it should be lawful for the said B. and M., at any time during the joint natural lives of the said C. and D., to distrain. Here the power to distrain being given before the rent could be behind, it was held that the words, during the joint lives of the said C. and D., being insensible, ought to be rejected. Crowley v. Vaugh. 173. Swindles, 28. In the case of Berrington v. Parkhurst, where Tit. 16. c. 1. $43. lands were limited to A. for ninety-nine 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 ninety-nine 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 rejected, as insensible and repugnant to the subsequent words. 29. An evident omission or mistake will be supplied Omissions in a deed. Thus where the name of the bargainor supplied. was omitted in the operative part of a bargain and sale, it was supplied. 30. Lord Say and Sele conveyed his estate to B. K., Lloyd v. Say & for the purpose of making him tenant to the præcipe 341. Sele, 1 Salk. 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 Bro. Parl, Ca. 73. Clinton v. Cholmondeley, 2 Barn. & Ald. 625. Settlements rectified. Uvedale v. Halfpennny, 2 P. Wms. 151. Targus v. 2 Ves. 194. 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 intention of it. Upon a writ of error in the House of Lords, it was 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 primâ 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 King's Bench was of opinion that the freehold was well conveyed by the deed. The judgment was affirmed. 31. Where there is an evident mistake in a marriage settlement, the Court of Chancery will rectify it. 32. In a settlement, lands were limited to the husband for life, remainder as to part, to the wife for life, remainder of the whole to the first and other sons of the marriage successively 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 twenty-one, and of the daughters at twenty-one, 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. Sir J. Jekyll decreed that the settle ment should be rectified, by placing the term of 500 years before the estate tail. Some operation is always given to a deed. Hob. 277. 33. Where a deed cannot operate in the way intended by the parties, it will be construed in such a manner as to operate, if possible, in some other way, quando quod ago non valet ut ago, valeat quantum valere potest. And, in consequence of this principle, it has been determined that a deed which was intended to operate as a lease and release, or bargain and sale, but could not take effect in that manner, should operate Ante, c. 10. as a covenant to stand seised. 34. 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. 35. A father by indenture, in consideration of the love he bore his son, bargained, sold, gave, granted, 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. 36. 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. 37. A person possessed of lands for a term of 999 years, by lease and release, for a valuable consideration, 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 there § 5. Osborn v. Churchman, Cro. Ja. 12", Marshall v. Franks, Gilb. R. 143. Doe v. Williams, infra. Ante, c. 4. $38. Goodtitle v. 597. ment. fore the release could not operate by way of enlargeBut the Chancellor was of opinion, that 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. 38. A release will be construed to operate as a grant of a reversion, in order to effectuate the intention of the parties. 39. Robert Edwards being entitled to a reversion Bailey, Cowp. 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, Ante, c. 10. § 4. |