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 com- Vide Chester v. Willan, mon wording of a release; but though in the shape Eustace v. of a release, if there were sufficient words, it might Tit. 18. c. 2. operate as a grant. Judgment was given upon another point. Scawen. 40. 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. lands are in the occupation of tenants. 41. 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 conveyance should not happen to be good as a release, it may operate as a grant, a bargain and sale, or a confirmation. § 38. grantee has an election how to take. 42. Where a deed may enure in different ways, the Where the person to whom it is made shall have his election which way to take it. Thus, if a deed be made by the words dedi et concessi, this in law may amount to a grant, feoffment, gift, lease, release, confirmation, or surrender. And it is in the choice of the grantee to plead or use it in any of these ways. 43. Sir R. Heyward, being seised in fee of the Heyward's case, 2 Rep. manor of D. &c., and of divers lands and tenements, 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 seventeen 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 1 Inst. 145. a. right to the wardship of the heir. And that where an estate passes, and the donee or grantee has a right of election, such right descends to his heirs or executors. 44. A lease was made to A. for twenty years, rendering rent. A. entered; afterwards the lessor for Ab. 787. pl. 7. money paid by B., demised, granted, and to farm let to B. the same land for four years from the date of the Darrell v. W. Jones, 206. 2 Roll. said indenture; and afterwards enfeoffed by deed the 45. It is laid down by Jenkins, Cent. 4. Ca. 20. that against a consideration alleged in a deed, or an use declared, no averment to the contrary can be received. So of indentures upon fines and recoveries, where the fines andre coveries pursue them. Nihil est tam naturale quam quodlibet 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. 46. 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 No averments admitted against deeds. Meres v. Ansell, 3 Wils. R. 275. Preston v. 2 Black, R. 2 Atk. 384. Treat. of Eq. 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.' 47. 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 twenty-one years, at 261. 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 261. per annum, the defendant had agreed to pay 27. 12s. 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; without 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. The Courts should be very cautious in admitting any evidence to supply or explain written agreements, else the statute of frauds would be eluded, and the same uncertainty introduced, by suppletory or explanatory evidence, which that statute had suppressed in respect to the principal object. It never ought to be suffered so as to contradict or explain away an explicit agreement; for that was in effect to vary it. Here was a positive agreement that the tenant should pay 261. Should the Court admit proof that this meant 281. 12s. 6d. ? What was it to the tenant to whom the rent was to be paid, so as he was obliged to pay more than his contract expressed. The Court could neither alter the rent, nor the term. 48. The same doctrine is established in equity; for B. 1. c.3.11. Lord Hardwicke has said, that to add any thing to an Coleman, agreement in writing, by admitting parol evidence, Tinney v. Tinney, Tit. 7. which would affect land, was not only contrary to the c.1.19. statute of frauds, but to the rule of the common law, before that statute was in being; and it has been laid Binstead v. down by the Court of Exchequer, that where there is an agreement in writing executed, no evidence can be given to supply any defect in it, which was intended to be part of it, but not inserted; for that would be to evade the statute of frauds, and introduce more. perjury. Bunb. 65. support of 49. There are, however, some cases in which aver- But admitted in ments, founded on parol evidence of collateral facts, them. tending to support or explain a deed, have been ad- 5 Rep. 68, b. mitted. Thus in the case of a bargain and sale to uses, Ante, c. 9. an averment, that a pecuniary consideration was given, might have been made before the statute of frauds, and is still allowed; because such an averment stands with the deed. $20. 2 i Rep. 176. a. Roll. Ab. 786. ante, c. 10. Bedell's case, 50. In the case of Preston v. Merceau, Sir W. Black- Ante, § 47. stone observed, that with respect to collateral matters, parol evidence might be admissible: the plaintiff might show who was to put the house in repair, or the like, concerning which nothing was said; but he could not by parol evidence shorten the term to fourteen, or extend it to twenty-five years; or make the rent other than 267. a year. Scammenden, 474. 51. In a modern case, the consideration expressed The King v. in a deed of conveyance was 281., but parol evidence 4 Term R. was admitted to prove that 30l. was the real consideration; and Lord Kenyon said, it was clear that the party might prove other considerations than those expressed in the deed; it was permitted in all cases of covenants to stand seised to uses. Laindon, 52. In a subsequent case parol evidence was re- The King v ceived, to prove that a sum of money was paid as an 8 Term. R. apprentice fee; though no mention of that circum- 379. stance was made in the contract of apprenticeship: and Lord Kenyon observed, that this parol evidence |