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14. How a deed of grant shall be

[The rule is, modus et conventio vincunt legem.]
And yet the grantor, as this case is, cannot him-
self cut any of the wood during the time; as in
case where a man doth grant to another, that he
shall cut every year four or five acres in such a
wood: for in this case the grantor may notwith-
standing cut as much as he will, [leaving sufficient
wood for the grantee to satisfy the terms of the
grant. In one case there is a grant of the wood,
and this grant excludes the grantor, notwithstanding
a restraint or regulation is placed on the grantee in
the mode of cutting. In the other case the gran-
tee hath merely a privilege or right of cutting,
without any specific right in the other parts of the
wood.] And here note, that in all the cases be-
fore, according to the construction that the law
makes of the deed, so must the party, that is to
use it, set it forth and plead it; as when it shall
enure as a lease, then it must be pleaded as a
lease, &c. See more in release, numb. 9. surren-
der, numb. 7. confirmation, numb. 7.

In the construction of deeds it must be observed,
construed & taken that there are some general rules that are appli-
in all the parts & cable to all the parts of all kinds of deeds, and some
branches thereof.
that are applicable only to some kind of deeds, and
to some part of the deed only. In the construc-
tion therefore of all parts of all kinds of deeds,
these rules are universally observed :

General rules.

1. That the construction be favourable, and as Co. super Lit. near to the minds and apparent intents of the par- Lit. Sect. 563. ties, as possible it may be, and law will permit: Plow. 160. 154. for benigne sunt faciendæ interpretationes charta- [Cro. Car. 400.] rum propter simplicitatem laicorum. Et verba intentioni non è contra, debent inservire. As, if there be lord and tenant, and the tenant grant the tenements to one man for term of his life, the remainder to another in fee, and the lord grant the services to the tenant for life [for an estate] in fee; in this case, howbeit a grant may enure by way of release, and a release to the tenant for life shall enure to him in remainder, and is [be] an extinguishment; yet, because this is contrary to the intent, it shall be taken for a suspension only of the services during the life of the tenant for life, and the services shall go afterwards to his heir. (In short the deed operates as a grant and not as a release; and in consequence of the party being tenant for life of

Doct. & Stud. 39. Lit.cap. 1.

the land and of the services at the same time, the right to the services is suspended during the estate for life; had the assurance been made by words proper to a release, the deed should have enured as such, and of consequence the rent would have been extinguished. The rule is only when the intent is to pass the land one way or another, there it may be good either way. Per C. J. Willes, in 2 Wils. 78. By the word intent is not meant the intent of the parties to pass the land by this or that particular kind of deed, or by any particular mode or form of conveyance, but an intent that the land shall pass at all events in one way or another. Ibid.] But if the intent of the parties be apparently against law, then the construction shall not apply the deed to their intent, [for the intent cannot change the law; as if one give land to another and his heirs for twenty years, in this case the executor, and not the heir, shall have this land after the death of him to whom it is given, [for a chattel, except in particular instances, as muniments of title, a horn by which the estate is held in point of tenure, &c. &c. cannot, by the rules of law, be transmitted from the ancestor to the heir. Chattels devolve from the owner to his executor or administrator, i. e. his personal representative. In this case, as the time for which the land is to be held is expressly declared, it shall mark the continuance of the estate, and the words and his heirs being words of surplusage, which cannot have any application, shall be rejected. In the other instance, the express limitation of the party controls what, in its absence, would have been the construction of law. The words, and his heirs, standing substantively, would have passed the fee; but the party having declared that he intended to pass only an estate for years, the construction which will accomplish the intent shall prevail. But see a distinction in Baldwin's case, 2 Rep. 23 b.] So if one by deed intending to give land to another and his heirs, give the land to him, to have and to hold to him, or to him and his assigns, for ever, [it is otherwise in a will, Essay on Estates, chap. Fee,] without these words " and his heirs," this is but an estate for life at the most, [for in deeds the inheritance cannot pass without a limitation to the heirs, &c. in express terms, or by words of reference to those terms.

P

1 Est. & Distinctions, 442. A different rule pre-
vails in wills.]

Plow. 161.

16 H. 8. 10.

Bro. Don. 14.

2. That the construction be reasonable and according to an indifferent and equal [viz. reasonable] Dyer, 15. understanding: and therefore if I grant to another, Fitz. Barre. 237. common in all my manor, this shall be expounded 17 E. 3. 7. to extend to commonable places only, and not in 46 E. 3. 17. my gardens, orchards, &c. And if I grant to one estovers out of my manor, he may not by this cut down my fruit trees. And if one grant me (a barrister) a fee pro consilio; this shall be taken for counsel in law only. And so in case of a physician [for advice in medicine only.) And if one *P. 87. grant to me to dig in all his * lands for tin, I may not by this grant dig under his house. And if one grant me common for all my beasts, this shall be taken for all my commonable beasts, and not for goats, and the like, [as geese, &c. which are not commonable beasts.) And if one grant me all his trees in his manor, by this I shall not have his apple trees (78). And if one lease to me his house and land, to the end that I may make profit thereof in the best manner, by this grant I may not prostrate the house or make waste.

Plow. 154. 170.

134. Dyer, 46.

10.1.8.

3. That too much regard be not had to the native and proper definition, significations, and accep- super Lit tance of words, and sentences, to pervert the simple 223. 146. 217. intentions of the parties: for [qui hæret in literá Co. 9. 48. hæret in cortice: i. e. the lawyer who forms his opinion on the mere words without the context, goes only skin-deep into the argument: thus] a manor may pass by the name of a messuage, or a knight's fee, if it be used so to be called: & sic è converso, a messuage by the name of a manor: a remainder may be granted by the name of a reversion; a reversion by the name of a remainder : for the law is not nice in grants, and therefore it doth oftentimes transpose words contrary to their order, to bring them to the intention of the parties (79), [but lands in possession will not pass by

the grant of a remainder or reversion, for this

(78) See accordingly Hob. 304.

(79) " For the words are not the principal things in a deed, but the intent and design of the grantor." And the words are to be construed in a manner most agreeable to the meaning of the grantor; and words which are merely insensible, are to be rejected. 3 Atk. 136, per Lord Chief Justice Willes, who there lays down some general rules for the construction

of deeds.

4

Plow. 160, 161.

Lit. Sect. 283.

would be a construction against the words, and to
pass the possession contrary to the intention:] and
it is a rule of law, mala grammatica non vitiat
chartam, neither false Latin nor false English will
make a deed void when the intent of the parties
doth plainly appear. It is therefore held that two
negatives do not make an affirmative when the
apparent intent is contrary. And it is another rule
of law, falsa orthographia non vitiat concessionem.
4. That the construction be made upon the en-
tire deed, [viz. on the context, and that one part
of it doth help to expound another, and that every
word (if it may be) may take effect and none be
rejected, and that all the parts do agree together
and there be no discordance therein. Ex antecedenti-
bus & consequentibus est optima interpretatio: for
Turpis est pars quæ cum suo toto non convenit.
Maledicta expositio quæ corrumpit textum. If a
man make a feoffment of all his land in D. with
common in omnibus terris suis, this common shall
be intended in the lands granted in D. only, and
not elsewhere, for it must be understood secundum
subjectam materiam. [Query in this case, for as all
the lands in D. are granted, the grant of common
would not, by this construction, be of any avail.]

5. That the construction be such as the whole Finche'sLey.60. deed and every part of it may take effect, and as Plow. 160. 154. much effect as may be to that purpose for which it

is made (80); so as [read that] when the deed can-
not take effect according to the letter, it be con-
strued so as it may take some effect or other :
Verba debent intelligi cum effectu. Et benigne fa-
ciendæ sunt interpretationes, ut res magis valeat
quam pereat. [The maxim, cum quod ago non
valet ut ago valeat quantum valere potest, is appli-
cable to the second branch of this rule. This is
the origin of the doctrine of cy pres in wills and to
conditions, and trusts executory at least, even in
deeds: the doctrine was borrowed by equity from the
common law learning on conditions; and the prin-
ciple of that doctrine in wills is, that when there is a
general, and also a particular intention, and the par-
ticular intention cannot take effect, the words shall
be so construed as to give effect to the general in-
tention. Per Buller, 2 Term Rep. 254; 3 Atk. 136;

(80) This is a rule both in law and equity, per Ld. Ch. Parker, 1 Pr. Wms. 457.

*P. 88.

Forfeiture.

Roe v. Tranmer, Willes, 682.] And therefore if
an annuity be granted pro consilio impendendo, or
a feoffment made ad erudiendum filium, or ad sol-
vendum 10s. these shall be construed conditional
grants without any words of condition; for other-
wise the party will be without remedy. [This seems
to be the rule of the civil law, causa data non
secuta.]

6. That all the words of the deed in construction
be taken most strongly against him that doth speak
them, and most in advantage of the other party :
Verba chartarum fortius accipiuntur contra pro-
ferentem: & quælibet concessio fortissime contra
donatorem interpretanda est (81). [The object of this
rule seems to have been to prevent any injury from
the use of ambiguous terms, and to punish the party
whose meaning they express, by turning the am-
biguity against him.] * And therefore if one seised
of land in fee grant it to another, and say not for
what time, this shall be taken an estate for [his
own] life. But this is to be understood with this
limitation, that no wrong be thereby done, for it is
a maxim in law, quod legis constructio, non facit
injuriam, [and also that the construction be most
beneficial to the grantee.] And therefore if tenant for
life [or in tail] grant the land he doth hold for life [or
in tail] to another, and doth not say for what time,
this shall be taken an estate for his own life, [the life
of the grantor, and not the life of the grantee, for then
it would [in some cases] be a forfeiture; [for the law,
in its genuine construction, prefers a less estate by
right, to a larger estate by wrong. Also, where no
forfeiture would be incurred, the like construction
would be made, because this is the construction
most beneficial for the grantee.] So if one be
seised of some lands in fee, and possessed of other
lands for years, all in one parish, and he grant all
his lands in that parish (without naming them) in
fee simple, or for life; by this grant shall pass no
more but the lands he hath in fee simple. [See Doe d.

Davies v. Williams, 1 H. Black. 25; where, in

Co. super Lit.
185. Finch of
the Law, 6.
[Cro. Car. 400.]

(81) This rule must be understood with a restriction; for a distinction should be made between an indenture, and a deed poll: the latter is executed by the grantor alone, and the words are his only, and shall therefore be taken most strongly against him; but in an indenture executed by both parties, they are to be considered as the words of them both. Plow. 134. This rule, from its strictness and rigour, is the last to be resorted to; and is never to be relied on but where all other rules of exposition fail. Bac. Elm. reg. 3.

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