water. But the word stagnum, or pool, will pass both the water and the land. 50. It has been stated, that tithes will not pass Tit. 22. under the denomination of land; and that a release of all claims arising out of lands would not affect them; so that they only can be conveyed by the word tithes. 51. 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 tenement, are applicable, not only to land, but also to rents, commons, offices, and the like. Inst. 6. a Fearne, Posthum. 8. 52. The word hereditament is much the largest and most comprehensive one used in deeds; for it includes not 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 of fur- 3 Atk. 82. niture, 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. 53. Notwithstanding the maxim cujus est solum, &c., a lease of a yard will not pass a cellar, situate under that yard; if it can be shown by evidence that the cellar was not intended to be demised. Tit. 1. Doe v. Burt, Term R. 701. 54. 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, Doe v. Williams, inserted in a release, have been held to pass leasehold, as well as freehold lands. 55. In consequence of the maxim, id certum est quod 1 H. Black. 25. Touch. 250. Effect of addi scription. Bac. Tracts, 102. certum reddi potest, lands will pass in a deed by the words, 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." 56. Lord Bacon says, veritas nominis tollit errorem tions to the de- demonstrationis. Therefore, if lands are described, in the first instance, by their proper names, 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. Id. 105. Windham v. 57. 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 specially named, the falsity of the addition hurteth not. 58. In a case reported by Plowden, where a lease was made of all that the farm of Brosley, then in the 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 further, 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. 59. But if there be 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 tenementum suum, Tra. 105. 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 less. though the words, in tenurâ Gulielmi A., which is had been first placed, yet it had been all one. And Dowtie's case, true, 60. Where words of addition are mistaken, and contrary to the real fact, they will not even operate as a restriction on the preceding words. 3 Rep. 9. Hob. 171. Cro. Car, 546 61. A corporation demised, in these words-all Swift v. Eyres, that their glebe land lying in Chesterton, viz. seventyeight acres of land, and also the demesnes of the said seventy-eight acres, with all the tithes of the said parish of Chesterton, and also the tithes of the said seventy-eight 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 seventyeight acres of glebe, II. The grant of the tithes. III. The grant of the tithes of the seventy-eight 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. 62. 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. 63. The next clause usually inserted in the premises of a deed, where the fee simple is conveyed, is, "Together with all deeds, evidences, and writings, &c. relating to the premises conveyed," &c. For although in general deeds follow the land, 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 uses it ought never to be omitted, because in that case the deeds will otherwise pass to the releasees to uses, not to the cestui que use. 64. In Lord Buckhurst's case it was resolved, that if a person made a feoffment with warranty, by which he was bound to tender in value, there, without an express grant, the feoffee should not have the charters that comprehended warranty, upon which the feoffor might have his warranty paramount. Touch. 77. 65. 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 things granted. 66. The following circumstances are necessary to Idem. make a good exception:-1. It must be made by apt words. II. The thing excepted must be part of the thing previously granted, and not of any other thing. III. It must only be a part of the thing granted; for if the exception extends to the whole, it will be void. IV. It must be of such a thing as is severable from the thing granted; and not an inseparable interest, or incident. v. It must be such a thing as that he who excepts may retain it. VI. It must be of a particular thing out of a general one; not a particular thing out of a particular one. VII. It must be certainly de scribed and set down. 2 Rep. 55. a. 67. With respect to the habendum, its office is only Habendum. .to limit the certainty of the estate granted; therefore no person can take an immediate estate by the habendum of a deed, where he is not named in the premises; for it is in the premises of a deed that the thing is really granted. Brooks, 68. If land be given to J. S. habendum, to him and Brooks v. a stranger, for a certain estate; this is void as to the 2 Roll. Ab, 67. stranger, because he was not mentioned in the pre- Windsmere mises; and when J. S. dies, there will be no occu- v. Hobart, pancy; for the grant to the stranger in the habendum was intended an estate to him, and not as a limitation of the estate of J. S. ante ch. 19. 69. There are, however, some exceptions to this 1 Inst. 21. a. rule. 1. If lands are given in frank marriage, the wife, who is the object of the gift, may take by the habendum, though not named in the premises. II. A VOL. IV. |