And where there is an ambiguity. Harding v. Ante, § 46. 1 Bro. R. 388. Beaumont v. was not offered to contradict the written agreement, but to ascertain an independent fact, and therefore it was properly received in evidence. 53. In the case of an ambiguitas patens, that is, an ambiguity which appears upon the face of the instrument, no averment is allowed to explain it; but in the case of an ambiguitas latens, an averment to explain it, supported by parol evidence, is admissible. Hence Lord Bacon's maxim, No. 23. Ambiguitas verborum latens, verificatione suppletur; nam quod ex facto oritur ambiguum, verificatione facti tollitur, Thus if a feoffment be made of the manor of S., and the feoffor has a manor called North S., and another called South S., parol evidence will be admitted to show which manor was meant. 54. This doctrine is not altered by the statute of frauds; it being now held that parol evidence is admissible in all cases of latent ambiguities. And in the case of Meres v. Ansell, the Court of Common Pleas said, that in some cases of deeds, where there were two Johns named, or two black acres mentioned, parol evidence might be admitted to explain which John, or which black acre, was meant. 55. In a modern case, Lord Thurlow said-" If there be a latent ambiguity, it must be explained by parol evidence; for though the words do not primá & Ald. 247. facie import an ambiguity, yet if such ambiguity can be made to appear from parol evidence, it must be admitted to explain it, as well as to raise it; but if words have in themselves a positive precise sense, I have no idea of its being possible to change them; and I take it to be an established rule that words cannot be changed in that manner." A nd where or Tat. of Eq. 56. Where it is alleged in a court of equity that a material part of a deed has been omitted by fraud; or B. 1. c. 3.11. that the intention of the parties has been mistaken and misapprehended by the drawer of the deed; parol evidence will be admitted to prove such fraud or mistake. A deed may estoppel. operate as an 1 Inst. 352. a. Plowd. 434. 57. It is a rule of law that a person shall always be estopped by his own deed; that is, he shall not be allowed to aver any thing in contradiction to what he has once so solemnly and deliberately avowed. Thus Id. 47. b. if a person makes a lease for years, by indenture, of lands wherein he has no estate at the time, and after purchases those lands, the lease will be good; because the lessor is estopped to say that he did not demise them. If however such a lease be made by deed poll, the lessee will not be estopped from averring that the lessor had nothing in the land at the time when the lease was made; because the deed poll is only the deed of the lessor, whereas the indenture is the deed of both. 58. When an interest actually passes by a lease, Idem. there is no estoppel; though the interest purported to be granted be really greater than the lessor, at that time, had power to grant. As if A., lessee for the life of B., makes a lease for years by indenture, and afterwards purchases the reversion in fee, and then B. dies; A. shall avoid his own lease, though the Cro. Car. 109. years expressed in the lease be not expired. Iseham v. Morrice, 59. If A. seised of ten acres, and B. of other ten 1 Inst. 45. a. acres, join in a lease for years, by indenture, these are several leases, according to their several estates, and no estoppel is wrought by the indenture to either party: because each has an estate whereout such lease for years may be derived. For the reason why estoppels were at any time allowed was, because otherwise, when the party had nothing in the lands, the deed must be absolutely void. 60. Every estoppel ought to be reciprocal; that is, 1 Inst. 352. a. to bind both parties. This is the reason that regularly a stranger shall neither take advantage, nor be bound by an estoppel. Privies in blood, as the heir; privies in estate, as the feoffee, lessee, &c.; privies in law, as lord by escheat, tenant by the curtesy, tenants in dower, and others that come in by act of law, or in Skipwith v. Green, 1 Stra. 610. Fairtitle v. Gilbert, Construction of conveyances to uses. Carter v. 2 Ves, 252. the post; shall be bound, and take advantage of estoppels. 61. A lessee is not estopped by the description of the lands contained in his lease, for this is not the essence of the deed: he may therefore show that what 2 Term R. 169. is there called meadow, has been sometimes ploughed. 62. It was formerly held, that conveyances to uses should be construed like wills; that is, according to the intention of the parties, though not expressed in the proper, legal, and technical words required in conveyances deriving their effect from the common law. This doctrine has been partly denied by Lord Hardwicke, who, in a case where the question was, whether, in a covenant to stand seised, the words were to be construed strictly, said-" It is objected that there is no warrant to construe a deed to uses, as to the limitations and words of it, in a greater latitude than a conveyance at common law; and if construed in a different manner, would cause great confusion; which I hold to be true in general. For, the statute joining the estate and the use together, it becomes one entire conveyance, by force of the statute; and the words are to be construed the same way: but this is to be taken with some restriction. As to the words of limitation in a deed, they are, to be sure, to be construed in that manner, viz. in the same sense: but where they are words of regulation or modification of the estate, and not words of limitation, I think there is no harm in giving them greater latitude in deeds on the statute of uses, which are trusts at common law; than in feoffments, which are strict conveyances at common law." 63. If it should be established that conveyances to uses, which are now become the common assurances of the realm, were to be construed in the same manner as wills, even with respect only to the words of regulation or modification of the estate; such a doctrine would, in some degree, tend to introduce all that latitude and uncertainty which now prevails in the construction of testamentary dispositions. Of this opinion was the late Mr. Booth, the most able conveyancer of the last century; who says, in one of his opinions, "If deeds of uses must be governed by Cases and Opinions, v. 2. the same rules as prevail with respect to wills, then a 279. limitation to a man's male descendants, or male children, may create an estate in tail; and an absolute inheritance may pass by a limitation to the use of the grantee for ever; which will produce infinite confusion." 180. 64. Mr. Booth's opinion is confirmed by Lord C. J. Willes' Rep. Willes and his brethren, in the case of Tapner v. Marlott; where he says-" As to what was insisted upon, that a conveyance to uses is to be construed as a will, and in a different manner from other conveyances, we are all clearly of a contrary opinion. For since the statute of uses, an use is turned into a legal estate, to all intents and purposes; it must be conveyed exactly in the same manner, and by the same words: and if it were otherwise, as most conveyances are now made by way of use, endless confusion would ensue." 65. Lord Thurlow and Lord Kenyon have fully assented to this doctrine. Therefore it may now be laid down as settled, that conveyances to uses are to be construed in the same manner as deeds deriving their effect from common law. 2 Bro. R. 233. Term R. 519. 3 Term R. 765. of trust. Rem. 218. 4th ed. 66. Declarations of trust are construed in the same Of declarations manner as common law conveyances, where an estate Fearne Cont. is finally limited by a deed, without any kind of reference to a further execution of the trust, by a conveyance directed to be made. For in such cases any occasional conveyance that may at any time be required of the legal estate from the trustees, may well be deemed a matter of form only; and not otherwise requisite than for the mere purpose of investing the subsisting trusts, whatever they may be, with their commensurate legal estates. Idem. 1 Atk. 602. 1 Ves, 103. Of articles of agreement. 2 Atk. 545. Collect. Jur. vol. 2. 374. Infra, c. 22. 67. But a declaration of trust, whose effect is referred to another conveyance, directed to be made for its establishment, which was formerly called an executory trust, may reasonably be considered as left to some degree of modification, by that supplemental part of the deed, viz. the conveyance to which the completion of the trusts is referred. And such conveyance may be directed to be made, so as to effectuate the intention of the person creating the trust, with less regard to the strict rules of construction, than in a case of a trust executed. 68. Articles of agreement being only considered as preparatory to something which is to be completed afterwards, the construction of them is different from that of regular conveyances; it being a rule to look on them merely as the heads of what has been agreed upon between the parties, and only as minutes drawn up by them, to lay before counsel, in order to direct and guide them to carry the intent and scheme of the parties into execution. Therefore the Court of Chancery will mould them in such a manner, as to comprehend what appears to be the manifest intent and design of the parties, without paying a nice attention to the legal sense or operation of the words which may be made use of in framing the articles. 69. This doctrine is particularly applicable to articles of agreement made previous to marriage. And Lincoln v. New where a covenant to convey property at a future time is inserted in a marriage settlement, it will be construed in the same manner as an article of agreement. castle, infra, c. 23. |