Ante, c. 2. § 3. person not named in the premises may take an estate in remainder by the habendum. III. If no name whatever be mentioned in the premises, then a person named in the habendum may take.

Touch, 75.

1 Inst. 7. a. n. 3.

Sammes' case, 13 Rep. 55.

2 Roll. Ab. 65. Touch. 76.

2 Roll. Ab. 65.

Plowd. 157.

Void when re

pugnant to the premises.

70. There is a case where the two Chief Justices and the Chief Baron certified to the Chancellor that a lease was good, though the lessee was only named in the habendum.

71. In declarations of uses, a use may be declared, in the habendum, to a person to whom no estate is granted in the premises.

72. Sir T. B., by indenture between him and John and George Sammes, bargained, sold, and enfeoffed to John Sammes, to hold to the said John and George Sammes, their heirs and assigns, to the use of them and their heirs for ever. Resolved, that although the feoffment was good only to John and his heirs, yet the use limited to John and George and their heirs, was good; because the seisin of John was sufficient to serve the use declared to George.

73. Nothing can be limited in the habendum of a deed, which has not been given in the premises; because the premises being the part of a deed in which the thing is granted, it follows that the habendum, which is only used for the purpose of limiting the certainty of the estate, cannot increase the gift; for in that case the grantee would in fact take a thing which was never given to him.

74. Thus if a person grants a manor, habendum una cum another manor, or una cum advocatione of another manor, this is not good; because it was not included in the premises. But if a thing is comprehended in the premises, and has another name in the habendum, the habendum is good as if the nomination of an advowson is granted, habendum the advowson, it is good, though it varies in name; for it is one and the same thing. 75. Where the habendum is repugnant and contradictory to the premises, it is void; and the grantee

will take the estate given in the premises. This is a consequence of the rule already stated, that deeds shall be construed most strongly against the grantor; Ante, c. 19. therefore he shall not be allowed to contradict or re- 8 Rep. 56. b. tract, by any subsequent words, the gift or grant

made in the premises.

1 Inst. 299. a.

76. Thus if lands are given in the premises of a Plowd, 153. deed to A. and his heirs, habendum to A. for life; the habendum is void; because it is utterly repugnant to, and irreconcileable with the premises. So if the grant were to two persons, habendum to the one for life, remainder to the other for life, it would be void; because by the premises the grantees were joint tenants; so the habendum would sever the jointure, and make the one to have the whole during his life, and the other to have the whole after him.

77. In the case of things which derive their effect 2 Rep. 23. b. from the delivery of the deed, without other ceremony, and which lie in grant; there the habendum, if repugnant to the premises, is void: as if a man grants rent or common out of his land, in the premises of a deed, to one and his heirs, habendum to the grantee for years or for life, the habendum is repugnant and void; for an estate in fee passed in the premises, by the delivery of the deed. But where a ceremony is requisite to the perfection of the estate limited by the premises; and nothing more than the mere delivery of the deed is required to the perfection of the estate limited by the habendum; there, although the habendum be of a lesser estate than is mentioned in the premises, if the ceremony is not performed, it shall stand.

78. A person by indenture covenanted, granted, Baldwin's case, and demised, and to farm let, certain lands to A. B. 2 Rep. 23. and A. her son, and to the heirs of the said A.; habendum to them from the date of the same indenture until the end of ninety-nine years: no livery of seisin was made. It was resolved, that as livery of seisin

But may qualify them.

Ante c. 19.

was necessary to perfect the estate limited in fee, nothing would have passed but an estate at will, if the deed had not gone further: but as an estate for years was limited in the habendum, that was good presently, by the delivery of the deed. And so it appeared to have been the intention of the parties that the deed should take effect by the delivery.

79. There are, however, several cases where the 8 Rep. 154. b. habendum is allowed to abridge, or rather qualify the premises. For we have seen that where a deed first speaks in general words, and afterwards descends to special ones, if the special words agree with the general ones, the deed shall be intended according to the special ones.

1 Inst. 183. a. 2 Rep. 55. a.

8 Rep. 154. b. Thurman's case, 1 Roll. Ab. 68.

Pilsworth v.
Pyett,

T. Jones, 4.

1 Inst. 183. b. 190. b.

1 Inst. 299. a.

Sometimes

not controlled

80. Thus where no estate is limited in the premises, and an express estate for years is limited in the habendum, this will qualify and abridge the general intendment of the premises, by which an estate for life would otherwise have passed.

81. If lands are given in the premises to A. and to his heirs, habendum to him and the heirs of his body, he will only take an estate tail; because the habendum may qualify and restrain the general import of the word heirs.

82. Where lands were granted to A. and his heirs, habendum to him and his heirs for three lives; the habendum was construed so as to abridge the estate given in the premises, to an estate for three lives.

83. If a lease be made to two persons habendum, the one moiety to the one, and the other moiety to the other, the habendum makes them tenants in comwhereas by the premises they were joint tenants. 84. The estate given in the premises may be enlarged by the habendum; thus where an estate is given in the premises to the grantee for life, habendum to him and his heirs, the grantee will take an estate in fee.

85. Where the premises and the habendum of a deed by the premises. are equally clear, the former will not be controlled

by the latter, but both will be allowed to operate. It being a rule that a deed shall be construed in such

a manner as that every part may be effectual, if they Ante, c. 19. can stand together.

1 Inst. 21. a.

86. Thus if lands are given in the premises to a 8 Rep. 154. b. person and the heirs of his body habendum to him and his heirs, he will take an estate tail, with a fee simple expectant.

Turnman v.
Cowper,
Cro. Ja. 476.

87. Lands were given to husband and wife, and to their heirs, habendum to them and the heirs of their bodies. It was held that the grantees took an estate tail, with a fee simple expectant. Mr. Hargrave has observed, that this case was attended with circumstances particularly showing an intention to pass both: for there was a reservation of tenure to the lord paramount, which could not be, if only an estate tail passed to the donee, and the reversion had remained in Tit. 2. c. 1. the donor, for then the tenure must have been of the

donor.

tation and pur

108. 4th edit.

88. The words inserted in the habendum for the pur- Words of limipose of showing the quantity of estate intended to be chase. given, are called words of limitation; in contradistinction to the words in the premises by which the lands are given, and which are called words of purchase. Thus Mr. Fearne says "In general, words Cont. Rem. of purchase are those by which, taken absolutely, without reference to or connexion with any other words, the estate first attaches, or is considered as commencing in the person described by them: whilst words of limitation operate by reference to or connexion with other words, and extend or modify the estate given by those other words."

89. Mr. Fearne had previously observed, that Idem. 107. "when the word heirs, &c. operates only to expand an estate in the ancestor, so as to let the heirs described into its extent, and entitle them to take derivatively, through or from him, as the root of succession, or person in whom the estate is considered as

commencing, they are properly words of limitation. But when they operate only to give the estate imported by them to the heirs described, originally, and as the persons in whom that estate is considered as commencing, and not derivatively from or through the ancestor, they are properly words of purchase."

90. In some cases the same words operate as words of purchase, and also as words of limitation. Thus Lord Coke says, where a remainder is limited to the right heirs of B., it need not be said, and to their heirs; for being plurally limited, it includes a fee simple; and yet it rests but in one by purchase.

So where an estate is limited to the heirs male of the body of A. the eldest son of A. takes by purchase, and his male issue by descent.

What words

create an estate

in fee. Lit. §1.

1 Inst. 8. b.

WITH respect to the words required to create an estate in fee simple, it is laid down by Littleton and Lord Coke, that in all feoffments and grants the word