sale, may, no doubt, operate as a grant.[180] As often, then, as the bargain and sale is void, as such, either for want of a proper consideration, or inrolment within due time, it should be considered, whether the intended bargainor had an estate in remainder or reversion. Admitting he had a remainder or reversion, or that the subject of the deed was an incorporeal hereditament, as a rent or advowson, the deed may be treated as operating as a grant (e), notwithstanding the want of any consideration or inrolment. In Barker v. Keat (f), the tenant to the writ of entry was made by an instrument in the form of a lease and release. No consideration was expressed in the clause of grant in the lease. In the reddendum, a pepper corn, which is money's worth, was reserved. On this ground, the lease was considered as a good bargain and sale for a year so that there was an estate for a year capable of enlargement; and it was enlarged by the release; and the releasee had the freehold, and the recovery was duly suffered, since the writ of entry was brought against this releasee.

This part of the deed is intimately connected with the two divisions, which treat of, 1st, the person who has the freehold (g), and (g) Supra, 165.

(e) Supra, 41.
(S) 2 Mod. 249.

2dly, the intended tenant (h); for the office [181]of this clause of the deed is to introduce an effectual grant from the person who has the freehold to, or in favor of the person who is intended to be, the tenant; or, at least, it must introduce a grant, in favor of some other person, to uses, under which the freehold may be vested in the tenant.

From subsequent parts of this treatise, it will be collected that a grant may be good, though the name of the grantor is omitted, in the words of the intended grant from him, provided the intention, that he should grant, can be collected from the deed.

So a grant may be good, though the grantee is named in the habendum, and not in the grant; and even though some other person is, by mistake, named in the grant.

On this and other subjects connected with the form of the grant, the observations in the chapter Release, will afford the necessary information. That the deed should be sufficient to pass the freehold, is the object to be regarded, both in preparing the recovery deed, and considering the effect of the recovery, with a view to support its validity.

(h) Supra, 172.

5. Of the Operative Words.

These words ought, in point of form, to

mode of opera

They must be

vary with the nature and
tion of the recovery deed.
sufficient to pass the estate. In the more
early period of the history of the laws of
property in this country, particular words
were allowed only a particular import, and
were considered as peculiarly adapted to
particular assurances. In modern times,
this rule has been relaxed. No more is
now regarded, than that there should be
such words as declare a manifest intention
to convey. Such words, however informal,
will operate.

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The rules which now prevail, are "Benigne faciendæ sunt interpretationes chartarum, propter simplicitatem laicorum, ut

res magis valeat quam pereat.-Verba in"tentioni, et non e contra debent inservire."Deeds intended, and made to operate "one way, may operate another way, if "the intention of the parties cannot take

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place, unless they operate a different way "from what they were intended.-Judges ought to be curious and subtle, to invent reasons and means to make acts effectual, according to the just intention of the parties. More consideration is to be

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[182]

"had for the substance, to wit, the passing of the estate according to the intent of [183]" the parties, than the shadow, to wit, the manner of passing it (g)." The application of these rules will be shown in the chapter on Releases.

[184]

The words of grant ought to proceed from a person as grantor, in favor of the person named as grantee. The observations respecting the nomination of these persons and mistakes in these particulars, will be found in the chapter to which reference has been lately made.

6. Of the Parcels.

In all deeds, and in none more than in recovery deeds, particular attention should be paid, that all the parcels intended to pass, should be included, and that none should be included which it is the intention of the parties to omit.-The points proper to recovery deeds, are, not to include more lands than are intended to pass -to comprise, either by general or special words, all the lands to which the recovery is to extend, and to restrain general words to those townships, parishes, &c. which are to be named in the recovery.

It is said, that the issue in tail may de

(g) Roe v. Tranmer, Willes's Rep. €82.

mand the parcels according to their quality at the time of the intail, without regard to any alteration made in these parcels by the defendant (h).

When the parcels are of considerable length, or the description of them is attended with nicety, or involved in any difficulty or uncertainty, general words should be added, extending to all the townships, parishes, &c. named, or to be named, in the recovery, so as to embrace, under these general terms, any parcels omitted out of the particular description. Many a title has been supported under these general words, which would have been defective, or at least doubtful, as far as it depended on the particular description.

Such general words may be to this effect: -And all other the manors, messuages, farms, lands, tenements, and hereditaments, situate, lying, and being in the several towns, parishes, and places of A. B. C. and D. in the said county of of which the said is tenant for an estate-tail, either in possession, reversion, or remainder, under or by virtue or means of the said hereinbefore mentioned or recited and every part and

parcel of the same, with their, and every of their rights, members, and appurtenances.

(h) Dyer, 47. a. pl. 6. 1 Burr. 145.