as respects the grantee, the law to be collected from Spyve v. Topham (d), and the cases there cited, is, that though the grantee be not named in this part of the deed, or though some other person be named by mistake, yet the grant will be good, if from the context, and in particular the habendum, &c. the intended grantee can be ascertained beyond all reasonable doubt; and if the grant be to several, and some of them only are capable of taking, the grant will be good to those alone who are capable. It is also usual to express in this clause the words of limitation when an estate in fee is to be conveyed. This is only a formal part of the deed, nor is it necessary when there is an habendum, since the habendum is in point of law the proper part of the assurance for introducing the words of limitation, for it is the office of the premises to name the grantee, and describe the parcels, and of the habendum to limit the estate. But it may be observed, that if the habendum be inconsistent with the grant in the premises, the grant in the premises will prevail, and the habendum be rejected (e). (d) 3 East. 115. (e) Sheppard's Touchstone, 98. Auditor King's case, cited 8 Rep. 56. Therefore, if a grant be made to A., and his heirs; habendum to him for his life, or to him and his executors for years; the grant will prevail, and the habendum be rejected. Whenever the grant in the premises can be rendered consistent with the limitations in the habendum, the words in the grant will be qualified by the words in the habendum (ƒ). The rule is, that where a deed speaks by general words, and afterwards descends to special words, if the special words agree to the general words, the deed shall be intended according to the special words (g). Thus, if a grant be, to A. and his heirs, habendum to him and the heirs of his body (h), or habendum to him and his heirs, during the life of some other person or several persons in the former case only an estate tail, and in the latter case, only an estate for life or lives will pass, because in both these instances, the word "heirs," in the habendum, is rendered consistent with the word "heirs" in the grant (¿). (f) 8 Rep. 154. b. (g) 7 Edw. 3. Mortimer's case, 8 Rep. 154. b. (h) Co. Lit. 21. 8 Co, 154. Moor 87. Cro. Jac. 476, (i) Grant to two, habendum to one for life, remainder to another, Shep. Touch, 109. Co. Litt. 183. And when the grant and the habendum import the gift of different estates, as a grant to A., and the heirs of his body, habendum to him and his heirs, an estate in tail will pass by the grant in the premises, and the remainder in fee will pass by the habendum (k). It would have been the reverse if the grant had been to. A. and his heirs, habendum to him and the heirs of his body, for the habendum would have qualified the grant. So the habendum may destroy the effect of the grant, and render void a deed which, without the habendum, would have been good as when a grant is made to A. for his life, or to A. and his heirs, without any habendum (7), the grant may operate according to the intention of the parties; but by the addition of an habendum, To hold from a day to come, or from an event, thus importing to pass an estate of freehold under the rules of the common law, and to commence in futuro, which is contrary to the rules of that law, the (k) 2 Co. 55. 9 Co. 476. 3 Lev. 339. (1) Co. Litt. 21. a. 8 Rep. 154. a. habendum will destroy the effect of the grant, and the deed cannot operate either under the grant, or under the habendum (m). Also the habendum may regulate and modify the language of the grant, as in the instance of a grant to two, habendum to one for life, remainder to another in tail or in fee; and in the instance of a grant to two persons, of lands, habendum, one moiety to one in fee, and the other moiety to the other in fee. As it is the proper office of the premises of a deed to name the grantee, and of the habendum to limit the estate, it is highly expedient to observe this regulation, so as to introduce the limitation of estate into the habendum without attempting to express the estate in the premises. General convenience enforces this regulation. It facilitates practice: it aids the judgment; it assists the memory; it enables men of experience to perform their duty with dispatch and with judgment. And each of these considerations is of importance to the public as well as the individual practitioner. 3dly, The lease for a year is generally recited in this part of the release. Some (m) Baldwin's case, 2 Rep. 23. Shep. Touch. 109. 1 Inst. 183. (n) Buckler's case, 2 Rep. 55. 1st resolution, Hogg v. Cross, Cro, Eliz, 254, times, though not very frequently, it is recited after the clause, "All the reversion." It is immaterial in what part of the deed this recital is introduced. But as it is more generally expected to find this clause in this part of the assurance, there is, with a view to practice and professional habits, a convenience in having it inserted in this part of the deed. It is observable also, that the recital is only a formal and not an essential part of the release; for if, in point of fact, there be a lease, it is of no consequence that the recital is omitted. The object of the recital is to make it evidence of the lease as against the releasor, and those who claim under him. In practice it is doubted by some gentlemen of experience, whether this recital operates by way of evidence or estoppel; and those who think that it operates by way of estoppel, contend, that in recovery deeds, and as against the issue in tail, or the persons in remainder or reversion, the recital cannot be used, since persons of this description claim under the original donor, and are not bound by estoppel. But considering the recital as evidence only, and not as estoppel, there does not seem to be any well founded reason against the admission of this evidence, in a question in which the issue are concerned, or, as in the case of recovery deeds, the réversioners or remainder-men are in◄ |