1833. Dor dem. SMITH against GALLOWAY. unto the said W. Marsh, J. H. Stracey, and M. Stewart, their executors, administrators, and assigns, all mines and quarries of stone, timber, and other trees whatsoever (with a like exception and reservation of hedges, of a right of hunting, shooting, fishing, and fowling, and of the liberty of keeping a herd of deer in the park, and depasturing three heads of cattle there). Since the execution of this deed, Marsh, Stracey, and Stewart had become bankrupts, and all their property had been regularly assigned before the action was brought; the plaintiff, therefore, relied upon the lease to Smith, Cleeve, and Southam. The premises claimed were within the line and abuttals set out in the inquisition and lease: but the defendant had occupied them, by the permission of the original owner, up to the time of the inquisition, without paying any rent, no demise having been made to her. Smallbones had also suffered her to occupy them in the same way during the whole time of his tenancy; and she had continued in a similar occupation up to the time of the action brought. It was now insisted for her, that the premises, not having been in the occupation of Smallbones, did not pass by the lease. The learned Judge directed the jury to find a verdict for the plaintiff, reserving leave to the defendant to move to enter a nonsuit. The defendant obtained a rule to that effect in Michaelmas term, 1832. Talfourd Serjt. and Walesby now shewed cause. There can be no doubt that the intention of the parties to the lease of the 22d of June 1824, was that all which the lessors held by the elegit should pass; and the words of the demise are sufficient to carry that into effect. effect. The premises are locally within the line set out in the later part of the description, and the words added respecting the occupation are mere surplusage. Besides this, the defendant resided on the premises by the permission of Smallbones; they may, therefore, be considered to have been in his occupation. If it be contended that the part granted is limited, by grammatical construction, to the part occupied by Smallbones, the answer is that, by such a construction, all that was occupied by Smallbones would be within the grant. Now that would comprehend parts of the park without the described line. Besides, the lease goes on to make certain exceptions; and, if the present premises were not within the intention of the lessors, they also would have been marked off from the property within the prescribed line by a specific exception. In Wrottesley v. Adams (a), the words of a lease, as set out on the record, were "granted and to farm let to the same R. W., the tenements aforesaid, with the appurtenances, by the name of the reversion of all their [the grantors'] farm in B., and by the name of one other tenement there, with all the lands, leasows, pastures, and meadows to the same belonging, and with all and singular their appurtenances then in the tenure and occupation of the aforesaid R. W." On demurrer, an exception was taken that the "tenements aforesaid" (being the premises mentioned in the declaration) were not averred to have been in the tenure and occupation of R. W. (b). But the Court held that the averment was not necessary, and said that "another certainty put to a thing which was certain enough be (a) Plowd. 187. (b) 5th exception, p. 191. fore 1833. Dox dem. against GALLOWAY. 1833. Dox dem. SMITH against GALLOWAY. fore was of no manner of effect; and therefore there is a diversity where a certainty is added to a thing which is incertain, and where to a thing certain." Therefore it was considered not to be material, whether the farm of B. was in the tenure of R. W. or not. The Court also held, that the words "one other tenement" were not material to make the lease good; and, consequently, that, so far as the farm of B. was concerned, no averment was necessary (a). So, where a demise was made of "all that their [the grantors'] glebe lands lying in C., viz. seventy-eight acres of land, and also the demesnes of the said seventy-eight acres, with all profits, commodities, tithes personal and predial, &c., belonging to the said subchanter and vicars, as parsons and proprietaries of the parish church of C., &c., and all other tithes whatsoever, and also the tithes of the said seventy-eight acres, all which were lately in the farm and occupation of M. P. ;" and it was found, on special verdict, that none of the tithes of the lands mentioned had been in the possession of M. P., but that other tithes and lands were in the tenure of M. P.; it was held, that the tithes of the lands mentioned passed by the demise. Swift, Subchanter, and one of the Vicars Choral of Litchfield v. Eyres and Others (b). The maxim, that where there is sufficient certainty in a description a false reference added shall not destroy its effect, was lately recognised in Doe d. Ashforth v. Bower (c). [Parke J. The general rule is laid down in Doddington's Case (d), and in the note added at the end of the (a) S. C. 195. (b) Cro. Car. 546. S. C. W. Jones, 455. (d) 2 Rep. 32. b. judgment judgment there. There are also cases on the same point in Rolle's and Viner's Abridgments, Grant (a).] Jervis and Cooper in support of the rule. It must be conceded that if the words "and now in the occupation," &c. had followed the particular description, the case would have fallen within the rules laid down in the cases cited. But here the words relied upon by the defendant, precede the particular description; therefore, according to Wrottesley v. Adams (b), and Swift v. Eyres (c), and Doddington's case (d), the particular-description must be rejected, if there be any inconsistency. And this was held in the case of Stukeley v. Butler (e). There a bargain and sale was made of all woods, underwoods, &c. standing, growing, &c. in the whole of the bargainor's manor of C., viz. in all his wood called E., and in all his wood called B., and in other woods expressly named: and it was adjudged that woods in C., not being in any of the woods afterwards expressly named, should pass by the conveyance. [Denman C. J. As you construe the sentence, the question would be, whether you are compelled to resort to all the description for the purpose of understanding the meaning. Suppose the premises had been described by reference to a coloured plan, and the words had been "all the part coloured green and now in the occupation of A. B.," all the green must have passed, though some of (a) 2 Rol. Abr. 54. 14 Vin. Abr. 87. See also 2 Rol. Abr. 423. and 425. Rent, B. 6. D. 7. "If a man grants and confirms to another in fee 10s. rent, to take out of certain land, which rent he has of the grant of his father; though he never had any thing of the grant of his father, yet this shall create a rent." (b) Plowd. 187. ! (d) 2 Rep. 32. (c) Cro. Car. 546. (e) Hob. 168. (edit. 1724.) 1833. Doɛ dem. against GALLOWAY. 1833. Dox dem. SMITH against GALLOWAY. it had not been the occupation of A. B. Littledale J. Is it not the same thing, whether the place be expressly named, or its limits particularly set out?] In Doe d. Parkin v. Parkin (a), it was held that a devise of all hereditaments in T. and then in the devisor's own occupation, would not pass hereditaments in T. not occupied by the devisor. In Blague v. Gold (b), it was held that the devise of "the corner house in A. in the tenure of B. and H.," passed a corner house in A. which was in the tenure of B. (c), (though not a house in the tenure of H. not being a corner house); and the reason given was, that the devise was of a thing certain at the first. Where a lease was made of a room, a cellar, a vault, and a yard, all expressly set out and described to have been late in A.'s occupation, it was held that a cellar, not expressly named, which was under the yard, but which had not been in the occupation of A., would not pass, Doe v. Burt (d). The word "and," here, is superfluous in the description; the meaning must be the same as if the description of the parcels had been, "All that part, &c. which is now in the occupation of Smallbones, in a direct line," &c. Doe d. Ashforth v. Bower (e) is in favour of the defendant; for there the Court held that such premises only passed by the devise, as were within the whole of the description, excluding such as corresponded to a part only of the description. In Swift v. Eyres (g), (a) 5 Taunt. 321. (b) Cro. Car. 447, 473. See also Hunt v. Singleton, Cro. Elix. 475. (c) This house was found by the jury to be in the tenure of B. and N. and the Court held, that if it were a joint tenure, all the house should pass, but that if one part were in the tenure of B., and another part in the tenure of N., the former part only should pass. (d) 1 T. R. 701. (e) 3 B. & Ad. 453. (g) Cro. Car, 546. there |