could any one have doubted that the object and effect of the deed were that the three persons named should take the rent-charge as tenants in common? If so, the Statute of Uses cannot alter the common law construction of the deed. The case of Doe v. Prestwidge, 4 M. & S. 178, has also an important bearing upon this question, as showing that the whole limitation in the habendum is to be taken together, and a rational interpretation to be put upon it. There, the limitation was to Thomas and Henry and their heirs. habendum to them, their heirs and assigns, as tenants in common, and not as joint-tenants, to the only proper and absolute use and behoof of them, their heirs and assigns for ever. There was, therefore, a difference between the two parts of the habendum, the limitation of the use being such as to create a jointtenancy. The matter was argued, and further time was given to Reader, the counsel for the plaintiff, to consider it; and upon a subsequent day," he admitted that Thomas and Henry took as tenants in common," "although, if it had been an use executed by the Statute, the consequence would be that they were joint-tenants." That case is cited by various text-writers; and I do not find that it is questioned by any of them, except that in 3 Bythewood and Jarman's Conveyancing, p. 324, the learned editor (Sweet) says: "This was certainly admitting the principle to a great extent, and it seems that there was ample room for argument." That room has been afforded here, and the result shows that there is no authority to contradict it. There is also an important passage in the 7th edition of Sheppard's Touchstone, by Preston, at p. 106, where that very great conveyancer says: "But if a grant be made to a man and his heirs, habendum to him and his heirs, to the use of him and his heirs for lives, this habendum and declaration of use are one entire limitation at the common law, and the grantee hath merely an estate for the lives," which passage is very applicable to the present case. It is, indeed, only acting upon the general rule of construction of a deed, which is, that, in order to ascertain the intention of the grantor, regard must be had to the whole of the instrument, and especially of the habendum. So dealing with the deed in the present case, the effect of it seems to me to be that the three persons named take the rent-charge as tenants in common. Each takes a legal estate in an undivided third part of the rent; and, no third party intervening, there is nothing for the Statute of Uses to operate upon. The party claiming, therefore, taking by force of the common law, the case is entirely out of the operation of the Statute of Uses. Consequently, it cannot come within the decision in Heelis v. Blain, but is governed by the two previous cases of Murray v. Thorniley, and Hayden v. Twerton.

The decision of the revising barrister, therefore, must be reversed, on the ground that the claimant had not been in actual possession of the rent-charge for the period required by § 26 of the Reform Act of 1832.

BRETT, J. In this case Orme claimed to be registered as a voter in

respect of a rent-charge; and in order to substantiate his claim. it was Tecessary for him to bring himself within § 26 of 2 Wm. 4, 6, 45 ; that is,

mow that he had been in actual possession" of the rent-charge for sx mams previously to the last day of July. In point of fact be bad not been in setinal receipt of the rent for the required period, the first parmens having only become dze on the 5th of April preceding: and the questica is whether, notwithstanding this, the cisimant has brough himself within § 25.

It seems to me that there are two canons or rules of conduct which the mom in dealing with these revising appeals ought to observe. Te frst is to roastre the words of these Statutes according to their orditary meaning: and the second is, to adhere loyally to former decisions, Less dearly satisfied that they are wrong. Now, the first case which is appliable to the present is that of Murray v. Thorning, 2 C. B. 217: 15 L. J. (C. P.) 155. It was there held that actual possessice in $26 of the Reform Act meant a possession in fact as contradistinguished from a possession in law. The next case was Heelis v. B, 18 C. B. (N. S.; 90; 34 L. J. (C. P.) 88, where it was held that, though the grantee of a rent-charge under a grant at common law is not entitled to be registered until he has been in the actual receipt of the rent for six months prior to the last day of July, since until such receipt be had only a possession in law, and not the actual possession required by 2 Wm. 4, c. 45, § 26, it is otherwise where he acquires the rent-charge by a conveyance operating under the Statute of Uses, for then the person to whose use the rent-charge is limited is by virtue of the Statute of Uses to be deemed to be in actual possession. It follows, therefore, if we observe the rule of conduct I have referred to, that, if the deed conveying the rent-charge in the present case operates at common law, the case is governed by Murray v. Thorniley; and that. if it operates under the Statute of Uses, then the case is gov erned by Heelis v. Blain, and we are bound to hold, whatever be our opinion of that case, that the possession given by the Statute of Uses is the possession required by the Reform Act. The result is, that the question for our determination is whether the deed conveying the rent-charge in respect of which Orme claimed in this case was one which operated at common law or by virtue of the Statute of Uses.

The result of the authorities cited is this: You must first look at the whole deed of conveyance; and wherever the grant in the habendum and the declaration of uses is to the same person, if the description is general in the one part and specific in the other part, the latter is to override the former; and, so reading it, it is a common-law conveyance, and the Statute of Uses has no application at all. In Jenkins v. Young, Cro. Car. 230, the limitation was to E. R. and his wife, in the form of a declaration of uses; but, inasmuch as the habendum was general in its terms, and not inconsistent with the declaration of the use, it was held that it was "a limitation of the estate to them and the heirs of

their bodies by the course of the common law." The case put in Sanders on Uses, p. 91, is open to the same observation. The limitation was to A., B., and C., and their heirs, to the use of A., B., and C., for their lives and the life of the survivor. There again the habendum was general, and the supposed declaration of use specific; but there was no inconsistency, and therefore the habendum was read as specific, and the conveyance was held to be a common law conveyance. In Doe v. Prestwidge, 4 M. & S. 178, the habendum was to two persons, their heirs and assigns, as tenants in common, and not as joint-tenants; that which was called the declaration of uses was general, "to the use of them, their heirs and assigns; " but, inasmuch as the habendum was specific, it was held that the whole must be read as if the declaration of uses had been as specific as the limitation, and so the deed took effect as a common-law conveyance. This seems to me to be the result of the opinions of Lord Bacon, Mr. Booth, Mr. Butler, and Lord St. Leonards.

Apply that to the present case. The grant is to Orme, Lawton, and Kerfoot and their heirs, — habendum "to Orme, Lawton, and Kerfoot, their heirs and assigns, to the use of the said Orme, Lawton, and Kerfoot, their heirs and assigns for ever, as tenants in common, and in equal shares.” The habendum is general, and the declaration of uses specific; therefore the habendum is to be read as if it were as specific as the declaration of the use. Consequently the conveyance is a common-law conveyance of the rent-charge to the three as tenants in

common.

I should have been prepared to go the length of Mr. Herschell's argument and to say that the Statute of Uses does not apply, unless there be some person named in the declaration of the use who is not named in the grant. It is not necessary, however, to go that length in the present case: it is enough to say that, one part of the habendum being general, and the other part specific, the whole is to be read together, and the intention collected from that part which is specific.

The result is that this must be taken to be a common law conveyance, and not a conveyance operating by force of the Statute of Uses. The case is, therefore, within Murray v. Thorniley, and is not within Heelis v. Blain. I therefore think the decision of the revising barrister was wrong, and that the appeal must be allowed.

GROVE, J. I am of the same opinion. The question turns upon § 26 of the Reform Act, 2 Wm. 4, c. 25, which enacts that no person shall be registered as a county voter in any year in respect of his estate or interest in any lands or tenements, as a freeholder, unless he shall have been "in the actual possession thereof, or in the receipt of the rents and profits thereof," for his own use, for six calendar months at least next previous to the last day of July in such year. Prima facie, the meaning of those words is clear and simple: "actual possession" would seem to mean an actual and not a constructive possession

or receipt of the rent. The proviso which is engrafted upon that section would seem to show that that is its true meaning, “provided always, that, where any lands or tenements, which would otherwise entitle the owner, holder, or occupier thereof to vote in any such election, shall come to any person at any time within such respective periods of six or twelve calendar months, by descent, succession, marriage, marriage-settlement, devise, or promotion to any benefice in a church, or by promotion to any office," such person shall be entitled to be inserted as a voter. This was the meaning put by this court in Murray v. Thorniley, 2 C. B. 217; 15 L. J. (C. P.) 155, where it was held that the possession required by that section was an actual possession, as contradistinguished from a possession in law; and there would have been no difficulty in this case but for the decision in Heelis v. Blain, 18 C. B. (N. S.) 90; 34 L. J. (C. P.) 88, where, the use being in a person different from the person who took the fee, the Statute of Uses applied, and it was held to give such a possession as amounted to actual possession. Now the question arises, whether the Statute of Uses is confined to a case where the use is not limited to the same persons as those to whom the rent-charge is granted. It seems to me to be clear, as well from the language of the preamble as from the enacting words of § 1, that the Statute was intended only to meet the case of a limitation of the use to persons other than those to whom the rentcharge is granted. The object of the Statute was to prevent conveyances from being otherwise than bona fide, and to make the ostensible and the real ownership of the estate always identical. We all know how that object was defeated, viz., by repeating the words "to the use of." The Statute, as I have already observed, in terms applies only to the case where the use was limited to a different person from the grantee or feoffee. One exception is that mentioned in Sammes's Case, 13 Rep. at p. 56 a, where it was resolved that, "if a man maketh a feoffment in fee to one, to the use of him and the heirs of his body, in this case, for the benefit of the issue, the Statute according to the limitation of the uses divests the estate vested in him by the common law, and executes the same in himself by force of the Statute; and yet the same is out of the words of the Statute 27 Hen. 8, which are, where any person, &c., stand or be seised, &c., to the use of any other person; and here he is seised to the use of himself; and the other clause is, where divers and many persons, &c., be jointly seised to the use of any of them, &c.; and in this case A. is sole seised: but the Statute of 27 Hen. 8 hath been always beneficially expounded, to satisfy the intention of the parties, which is the direction of the use according to the rule of the law. So, if a man seised of lands in fee-simple by deed covenants with another that he and his heirs will stand seised of the same land to the use of himself and the heirs of his body, or unto the use of himself for life, the remainder over in fee; in that case, by the operation of the Statute, the estate which he hath at the common law is divested, and a new estate vested in himself, according to the

limitation of the use." In Bacon on Uses, edit. 1806, p. 63, it is said, "that the whole scope of the Statute was to remit the common law and never to intermeddle where the common law executed an estate; therefore the Statute ought to be expounded, that, where the party seised to the use and the cestui que use is one person, he never taketh by the Statute, except there be a direct impossibility or impertinency for the use to take effect by the common law." All the other authorities are in favor of the plain and obvious construction of the words of the Statute. In Sanders on Uses, 5th ed., p. 91, after quoting the case of Jenkins v. Young, Cro. Car. 230, it is said: "So, if an estate be conveyed to A., B., and C., and their heirs, to hold unto the said A., B., and C., their heirs and assigns, to the use of the said A., B., and C., for and during the natural lives of them and the life and lives of the survivor and survivors of them, it would seem that this is not a Statute use, but that A., B., and C. will take an estate of freehold for their lives by the common law." In the present case the grantees of the rent-charge and the cestuis que use are the same persons; and the question we have to determine is whether the use is executed by the Statute. It has been ingeniously argued by Mr. Mellor that, as by the terms of the grant the grantees would prima facie take as jointtenants, the limitation of the use to them as tenants in common so changed the character of the estate to which the use attached as to make it in some sense a limitation to different persons. But then comes the case of Doe v. Prestwidge, 4 M. & S. 178, which is somewhat the converse of this case, where the habendum was to T. and H. and their heirs, as tenants in common, and not as joint-tenants, and the use was to them, "their heirs, and assigns " generally, and it was held that the general words were controlled by the specific words, and that T. and H. took as tenants in common. Counsel for the plaintiff, after time for consideration, admitted that, although, if this had been an use executed by the Statute, the consequence would be that T. and H. were joint-tenants, yet that, where the person seised to the use and cestui que use is the same person, the Statute does not operate, cept (as Bacon says) there be a direct impossibility or impertinency for the use to take effect by the common law." That was in effect the judgment of the court. Is there here any direct impossibility or repugnancy in holding that the grantees here take as tenants in common? I think not. The specific words of the declaration of uses clearly show that the intention was not only to limit the use, but to give the original estate to the three persons named and their heirs as tenants in common. If so, the Statute of Uses does not apply.

ex

There may be a difficulty in saying that the possession given by the execution of the use by the Statute is different from the possession in law which was held in Murray v. Thorniley to be insufficient to satisfy § 26 of 2 Wm. 4, c. 45; but it is unnecessary to consider that on the present occasion, for we are not now called upon to overrule the case of Heelis v. Blain, 18 C. B. (N. S.) 90; 34 L. J. (C. P.) 88.