as of greater force than a lease or estate at will: nor shall any assignment, grant, or surrender of any interest in any freehold hereditaments be valid; unless in both cases the same be put in writing, and signed by the party granting, or his agent lawfully authorized, in writing. (353) And now in all these cases, as before observed, a deed is requisite. Fourthly, the matter written must be legally and orderly set forth; that is, there must be words sufficient to specify the agreement and bind the parties; 4. The deed must which sufficiency must be left to the courts of law to determine. (354) For it is not absolutely necessary in law, to have explain itself. (353) The substance of this statute, 29 Car. II, c. 3, has been re-enacted in all the States of the Union, or the English law has been assumed to be in force, or has been adopted and followed by the courts. 4 Kent's Com. 450; 3 Washb. Real Prop. 214, 215, 3d ed. Contracts for the sale of lands must be in writing, and signed by the party to be charged, or they will not be obligatory. Thompson v. Elliott, 28 Ind. 55; Mather v. Scoles, 35 Ind. 1; Walker v. Herring, 21 Gratt. 678; Henry v. Colby, 3 Brewst. (Pa.) 171; Harper v. Spainhour, 64 N. C. 629; Hogsett v. Ellis, 17 Mich. 351; Huff v. McCauley, 53 Penn. St. 256; Kingsley v. Holbrook, 45 N. H. 313; Rutan v. Hinchman, 1 Vroom (N. J.), 265; Bozza v. Rowe, 30 I11. 198; Mac Kubin v. Clarkson, 5 Minn. 247; Frazer v. Ford, 2 Head (Tenn.), 464. So an oral agreement to execute and deliver a written contract to convey land is within the statute and therefore void. Lawrence v. Chase, 54 Me. 196; Trammell v. Trammell, 11 Rich. (S. C.) 471; Ledford v. Farrell, 12 Ired. (N. C.) 285; Yates v. Martin, 1 Chand. (Wis.) 118. Judicial sales, in which the entire proceedings are under the guidance and direction of the court, are not within the statute. Smith v. Arnold, 5 Mason's C. C. 420; Hutton v. Williams, 35 Ala. 503; Fulton v. Moore, 25 Penn. St. 468; Halleck v. Guy, 9 Cal. 181; Watson's Admr. v. Violett, 2 Duvall (Ky.), 332. (354) The interpretation or construction of all contracts or instruments belongs exclusively to the courts; and the rule is the same whether the agreement be oral or written, sealed or unsealed. Nash v. Drisco, 51 Me. 417; Drew v. Towle, 30 N. H. 538; Wason v. Rowe, 16 Vt. 525; Smith v. Faulkner, 12 Gray, 251; McAvoy v. Long, 13 Ill. 147; Collins v. Banbury, 5 Ired. 118; Emery v. Owings, 6 Gill. 191; Monadnock R. R. v. Felt, 52 N. H. 379; Williams v. Waters, 36 Ga. 454; Kane v. Hood, 13 Pick. 282; State v. Lefaivre, 53 Mo. 470; Lippett v. Kelley, 46 Vt. 516, 523. If the contract be oral, and there is a dispute as to its terms, that question is one of fact, to be tried by a jury or by the court. Guptill v. Damon, 42 Me. 271; Globe Works v. Wright, 106 Mass. 216; Illinois, etc. v. Cassell, 17 Ill. 389; Chapin v. Potter, 1 Hilt. 366; Bradbury v. Marbury, 12 Ala. 520. But after its terms are settled or agreed upon, the construction is for the court. Pratt v. Langdon, 12 Allen, 544; Short v. Woodward, 13 Gray, 96; Globe Works v. Wright, 106 Mass 216; Fosterman v. Parker, 10 Ired. 477; Rhodes v. Chesson, Busbee's Law, 336. In the construction of deeds there are some general rules which are resorted to in cases of dispute or doubt as to the true meaning of the instrument. As a general rule, a deed ought to be construed upon a consideration of what is contained in it. Caldwell v. Fulton, 31 Penn. St. 475, 489; Bond v. Fay, 12 Allen, 86, 88; Rutherford v. Tracy, 48 Mo. 325, 328; Ewing v. Burnet, 11 Pet. 41, 54; Warren v. Jones, 51 Me. 146. The construction ought to be such as will carry into effect the intention of the parties, if it can be done consistently with the rules of law. Bruensmann v. Carroll, 52 Mo. 313; Rutherford v. Tracy, 48 id. 325; S. C., 8 Am. Rep. 104; Barlow v. Scott, 24 N. Y. (10 Smith) 40; Gray v. Clark, 11 Vt. 583. And in seeking for such intention, the grammatical construction is not always, in judgment of law, to be followed; for neither bad English nor false grammar will render a deed void, when the meaning of the party is apparent. Broom's Leg. Max. 686. Punctuation is a most fallible standard by which to interpret a writing; it may be resorted to when all other means fail; but the court will first take the instrument by its four corners in order to ascertain its true meaning; if that is apparent on judicially inspecting all the formal parts that are usually drawn out in deeds, so as there be sufficient words to declare clearly and legally the party's meaning. We had occasion to notice a few instances in which technical language is essential, as *"heirs" to create a fee-simple, and words of procreation to create [* 483] a fee-tail; but in general no special form of words is necessary. Formerly the word "warrant" used by a grantor or feoffor had a special force and effect, binding him and his heirs not only to forego all title, however derived, to the land, but also to compensate the grantee in case of eviction (e). The word "grant" also was considered to carry with it the force of a warranty valid as against the grantor (ƒ) though not extending to his heirs: as also the word "give" (g). The former word has received a sanction to this construction by several acts of parliament (h). Again, the word "exchange," in a deed of that character implied a warranty to the extent of the lands received in exchange. These technical expressions have, however, lost their force, partly (e) Co. Litt. 365. (g) Spencer's Case, 5 Rep. 17, where it is said the word "dedi" implies a warranty but not a covenant. (h) 1 & 2 Vict. c. 20, s. 22; 8 & 9 Vict. c. 18, s. 132. the whole, the punctuation will not be suffered to change it. Ewing v. Burnet, 11 Pet. 41, 54. See, also, Waugh v. Middleton, 8 Exch. 352, 357; Nettleton v. Billings, 13 N. H. 446; Gray v. Clark, 11 Vt. 583; Churchill v. Reamer, 8 Bush (Ky.), 256, 260. Every deed ought to be construed with reference to its object and the whole of its terms; and, therefore, the whole context must be considered for the purpose of ascertaining the intention of the parties, even when the immediate object of inquiry is to ascertain the meaning of some separate clause. Collins v. Lavelle, 44 Vt. 230; Flagg v. Eames, 40 id. 16; Churchill v. Reamer, 8 Bush (Ky.), 256; Folsom v. McDonough, 6 Cush. 208; Babcock v. Wil son, 17 Me. 372; Morris v. Showerman, 2 Doug. (Mich.) 16; Jackson v. Blodget, 16 Johns. 172. In cases of doubt as to the meaning of the words used, the rule is to construe the deed in favor of the grantee, and against the grantor. Hathaway v. Power, 6 Hill, 453, 457; Saunders v. Hanes, 44 N. Y. (5 Hand) 353, 359; Mills v. Catlin, 22 Vt. 98; Winslow v. Patten, 34 Me. 25; Cocheco Manufacturing Co. v. Whittier, 10 N. H. 305; Barney v. Newcomb, 9 Cush. 46; Palmer v. Warren Ins. Co., 1 Story, 360-365. This rule, however, is not applied where a satisfactory construction can be reached by any other legal rules of analysis and interpretation. Clough v. Bowman, 15 N. H. 504; Sanborn v. Clough, 40 id. 330; Marshall v. Niles, 8 Conn. 469; Carroll v. Norwood, 5 Harr. & J. 155, 163 ; Vance v. Fore, 24 Cal. 446. If the words used are susceptible of two different meanings, one of which is in accordance with the law and the other against it, that construction will be adopted which will render the words consistent with the law. Townsend v. Stearns, 32 N. Y. (5 Tiff.) 209, 215; Riley v. Vanhouten, 4 How. (Miss.) 428. A deed is to be construed with reference to the situation and surroundings of the property at the time it is conveyed; and the grantee will be entitled to any advantages resulting therefrom. Lampman v. Milks, 21 N. Y. (7 Smith) 505; New Ipswich Factory v. Batchelder, 3 N. H. 190; United States v. Appleton, 1 Sumner, 492; Thayer v. Payne, 2 Cush. 327. If there be in the former part of a deed, an adequate and sufficient description which shows with convenient certainty the subject-matter to which it was intended to apply, a subsequent erroneous addition will not vitiate that description. Lippett v. Kelley, 46 Vt. 516; Doane v. Willcutt, 16 Gray, 368, 371; Morrell v. Fisher, 4 Exch. 591, 604; Abbott v. Abbott, 53 Me. 360, 361; Law v. Hempstead, 10 Conn. 23; Bass v. Mitchell, 22 Texas, 285, 294; Harvey v. Mitchell, 31 N. H. 575; Jackson v. Clark, 7 Johns. 217. Some things will pass by the conveyance of land as incidents appendant or appurtenant thereto; such as a right of way, or to flow water over lands, and the like. See 4 Kent's Com. 467, 468; 3 Washb. Real Prop. 343, 344. through disuse and also by the indirect and direct effect of several acts of parliament (i), and they are not now relied on in conveyancing. Except, therefore, as above-mentioned, a conveyancer is not restricted in the language he may employ: nevertheless, certain forms of expression having been universally adopted, great convenience follows from their invariable use; whereas much trouble and uncertainty would be introduced by the use of new expressions. Consequently the phraseology of formal deeds is found to be pretty uniform; the tendency of the present day, however, is to a considerable extent to revert as far as is possible to the simplicity and conciseness of ancient times, * and to abandon the prolix verbosity which was prevalent during the last century. Two acts have indeed been passed with this object specially in view, but they are rarely, if ever, made use of (j). The same remark as to convenience applies with even greater force to the arrangement of the parts of a deed than to the words employed. The usual order should not be departed from without good reason; of the parts of therefore we may shortly describe what that order is in a con Arrangement & deed. veyance. [*484] First, the date, and the name and descriptions of the parties are set forth, (355) followed immediately by the recitals of such deeds, agreements, or matters of fact, as are necessary to explain the reasons upon which the present transaction is founded (k). In these recitals Date and names of parties. (i) 6 Edw. 1, c. 3; 13 Edw. 1 (which protected the issue in tail from the warranty of a tenant in tail; Litt. s. 712; 2 Inst. 293); 11 Hen. 7, c. 20; 4 & 5 Anne, c. 16; 3 & 4 Will. 4, cc. 27, ss. 29, 36, and 74. See 8 & 9 Vict. c. 106, which however preserves the implied covenant, contained in the word grant, by virtue of act of parliament. See 8 & 9 Vict. cc. 119. 124, as to a parliamentary construction of words. (j) 8 & 9 Vict. cc. 119, 124. (k) As to the advantage of recitals, see Bailey v. Lloyd, 5 Russ. 330; Farrell v. Hil one. ditch, 5 C. B. N. S. 840. They do not usually control the effect of the deed, except in releases, in which it is presumed the parties do not intend to do more than the history of facts and statement of intention contained in the recitals indicate. Yet mere general words contained in the operative part may be controlled so as to have a restricted meaning by the recitals, Childers v. Eardley, 28 Beav. 648; and so where there is an ambiguity in the operative part, the recitals may be referred to in order to discover the meaning. Walsh v. Trevanion, 15 Q. B. 733. (355) A date is not essential to a deed, yet it is the common and correct practice to insert When a deed has a date it will be presumed to have been delivered at the time of its date. Robinson v. Wheeler, 25 N. Y. (11 Smith) 252; Jackson v. Hill, 5 Wend. 532; McConnell v. Brown, Litt. Sel. Cases (Ky.), 459; Ellsworth v. Central R. R. Co., 34 N. J. L. 93; Jayne v. Gregg, 42 Ill. 413; Blake v. Fash, 44 id. 302; County of Henry v. Bradshaw, 20 Iowa, 355. This presumption may be rebutted, and the true time of the delivery shown by competent evidence. Harris v. Norton, 16 Barb. 264; Sweetser v. Lowell, 33 Me. 446; Ford v. Gregory, 10 B. Monr. 175; McKenzie v. Roper, 2 Strobh. 306. The usual parties to a conveyance of land are the grantors and the grantees. The person who executes the deed is the grantor, and the opposite party is the grantee. The parties to a deed are those persons who grant or convey some estate, and those persons to whom such grant or conveyance is made with their assent. Endsley v. Strock, 50 Mo. 508; Caraway v. Caraway, 7 Caldw. 245. A party who executes a deed and delivers it cannot avoid it because his name is nct correctly spelled in it. O'Meara v. North Americus, etc., Co., 2 Nev. 112. Nor can the grantor avoid his deed on the ground that he signed it by a wrong name, where he is designated by his true name in the body of the deed. Middleton v. Findla, 25 Cal. 76. there often appears the consideration upon which the deed is made, and a general description of the subject matter (7). (356) Habendum. Then is introduced the operative part of the deed, prefaced usually by the words "now this indenture witnesseth," or other similar words. Here is commonly stated in precise terms the consideration, if not sufficiently Operative part. mentioned in the recitals. These premises, constituting the vital part of the deed, are followed by the habendum and tenendum. The office of the habendum is properly to determine what estate or interest is granted by the deed: though this may be performed, and sometimes is performed in the premises. In which case the habendum may enlarge, explain, or qualify, but not totally* contradict or be repugnant to [* 485] the estate granted. (357) As, if a grant be "to A. and the heirs of his body," in the premises, habendum "to him and his heirs for ever," or vice versá; here A. has an estate-tail, and a fee-simple expectant thereon (m). But, had it been in the premises "to him and his heirs," habendum "to him for life," the habendum would be utterly void (n); (358) for an estate of inherit (1) See the specimen of a modern grant in Appendix, No. II. (m) Co. Litt. 21; 2 Roll. Rep. 19, 23; Cro. Jac. 476. (n) 2 Rep. 23; 8 Rep. 56; 5 B. & C. 716. See also 5 B. & Ad. 783. (356) The recital is generally contained in the premises of the deed, and usually commences with the formal word "whereas," which, when there are several recitals in connection, is repeated accordingly, "and whereas." This, however, is not the only way of introducing recitals, nor are they always confined to the mere statement of the inducement and purpose of the deed. Recitals are sometimes inserted in a deed by way of explanation of certain things, or for some other purpose, and though they are not a necessary part of the deed, they may be of use in ascertaining the intention of the parties. It has been stated that every deed is to be construed with reference to its object, and the whole of its terms, etc., as it appears from the entire instrument (ante, 725, note 354); therefore, every deed is to be construed according to the intention of the parties, as manifested by the entire instrument, although it may not comport with the language of a particular part of it. Thus, a recital or a preamble in a deed may qualify the generality of the words of a covenant or other parts of a deed. Allen v. Holton, 20 Pick. 463, 464. A recital in a deed of a particular fact, which all the parties to the deed have agreed to admit as true, is an estoppel upon all. Carpenter v. Buller, 8 M. & W. 209, 212; Stronghill v. Buck, 14 Q. B. 731, 787; Cutler v. Dickinson, 8 Pick. 386; Doane v. Willcutt, 16 Gray, 368; Farrar v. Cooper, 34 Me. 394; Hovey v. Woodward, 33 id. 470;Bruce v. United States, 17 How. (U. S.) 437; Williams v. Swetland, 10 Iowa, 51. Recitals in a deed are binding on the parties and privies, but not generally on strangers to it. Whitaker v. Garnett, 3 Bush (Ky.), 402. 57) Where a grant is indefinite on account of its generality in respect to the estate in lands conveyed, which it is intended to create in the grantee, the habendum serves to enlarge, to define, qualify, or control it. Corbin v. Healy, 20 Pick. 514; Moss v. Sheldon, 3 Watts & Serg. 160; Berry v. Billings, 44 Me. 416, 423; Sumner v. Williams, 8 Mass. 162, 174; Jamaica Pond, etc., Corp. v. Chandler, 9 Allen, 159, 168, 169. (358) Where the whole interest in property is conveyed to one person in the premises of a deed, but in the habendum is limited to another, the latter is repugnant to the former and void, and the property is vested in the grantee named in the premises. Hafner v. Irwin, 4 Dev. & Bat. 433; Nightingale v. Hidden. 7 R. I. 115, 118. See Stockton v. Martin, 2 Bay. 471; Moss v. Sheldon, 3 Watts & Serg. 160, 162; Corbin v. Healy, 20 Pick. 514; Humphrey v. Foster, 13 Gratt. 653. ance is vested in him before the habendum comes, and shall not afterwards be taken away or divested by it. Tenendum. If the premises do not indicate the estate which is granted, then the habendum is essential to the deed, or at least to render it free from ambiguity, for in such a case the grantee, if he take anything at all under the premises, can do so only by implication, or presumption of law, a not very satisfactory foundation to rest upon. (359) The "tenendum" "and to hold," though it is still in use, is only kept in by custom. It was sometimes formerly used to signify the tenure by which the estate granted was to be holden; viz. "tenendum per servitium militare, in burgagio, in libero socagio, &c." But, all these being now reduced to free and common socage, the tenure is never specified. Before the statute of quia emptores, 18 Edw. I., it was also sometimes used to denote the lord of whom the land should be holden: but that statute directing all future purchasers to hold, not of the immediate grantor, but of the chief lord of the fee, this use of the tenendum has been long antiquated; though for a long time after we find it mentioned in ancient charters, that the tenements shall be holden de capitalibus dominis feodi (0); but, as this expressed nothing more than the statute had already provided for, it gradually grew out of use. Reddendum. [* 486] Next follow the terms of stipulation, if any, upon which the grant is made: the first of which is the *reddendum or reservation, whereby the grantor creates or reserves some new thing to himself out of what he had before granted, as "rendering therefor yearly the sum of ten shillings, or a pepper corn, or two days' ploughing, or the like" (p). Under the pure feudal system, this render, reditus, return or rent, consisted, in chivalry, principally of military services, in villenage, of the most slavish offices; and in socage, it usually consists of money, though it may still consist of services, or of any other certain profit (q). To make a reddendum good, if it be of anything newly created by the deed, the reservation must be to the grantors, or some, or one of them, and not to any stranger to the deed (r). But if it be of ancient services or the like, annexed to the land, then the reservation may be to the lord of the fee. We must distinguish between exception and a reservation. The former, meaning that a part of the whole hereditament which has been described is not to pass, should obviously be mentioned in the "parcels" or Exceptions and reservations. description of the subject matter of the grant; as when the grant is "of all that house except the rooms on the basement," or "all that piece of land except the underwood" (s). "A reservation is always of a thing not in esse, but newly created or reserved out of the land or tenement" granted (t), (0) See 4 Ed. 1, c. 6. (p) Madox, Formul. (q) Ante, p. 164. (r) Plowd. 13; 8 Rep. 71. There is sometimes a repugnancy between the granting part of the deed and the habendum as to the estate which the grantee is to take in the land, and when the contradiction cannot be reconciled, if the language of the grant is definite in limiting the estate, the habendum must yield to the terms of the granting part. Budd v. Brooke, 3 Gill. 236; Farquharson v. Eichelberger, 15 Md. 63. See Tyler v. Moore, 42 Penn. St. 374, 387. (359) See notes 357, 358. VOL. I.-82 |