1826.

HAGGERSTON against HANBURY.

posed to be favorable to the present plaintiff is, that where a deed is capable of a two-fold operation, but according to one construction takes effect immediately, without the performance of any further act, it shall be so construed, rather than in a mode which renders such further act necessary to its validity; and Barker v. Keat, and Lutwich v. Mitton, and Anon. 3 Leon. were cited as instances. Now in each of those cases the deed was held to operate as a bargain and sale, that being a conveyance by which the land passed immediately; and it is clear from other authorities that a bargain and sale takes effect from the time of the execution, although it may afterwards be rendered void by a neglect to enrol it within the time prescribed by the 37 H. 8. c. 16. The whole question, therefore, turns upon the application of the rule of law given in Co. Litt. 49 b., and Shep. Touch. 83., that "if a man have two ways to pass lands, and he intends to pass them one way, and they will not pass that way, ut res valeat, they may pass the other way." Now here it appears to have been the intention to pass these lands by bargain and sale to Leteney and Burke ; that the reversion might so pass is clear from Fox's case (a), although the limitation of uses would be void. The first part of the rule is, therefore, inapplicable; and indeed it has been admitted, that in all the cases upon this point, the deed, if taken according to the letter, would have been wholly void; and it may also be observed, that in each of them the construction put upon the instrument was against the grantor; that which is now contended for is in his favor. Neither was it originally necessary to construe this deed as a grant of

(a) 8 Co. 105.

the

the reversion in order to carry into effect the main object of the parties. That object was to make a tenant to the præcipe to suffer a recovery. If the deed operated as a bargain and sale, Leteney and Burke would be jointtenants, and the writ might have been against them jointly. Suppose Leteney to have died before the recovery, and a writ to have been issued against Burke, it could hardly have been contended that this deed had not the effect of vesting the estate in him as the survivor of two joint-tenants, so as to make him a good tenant; and if so, it must have operated as a bargain and sale; to say now that Leteney was tenant of the whole, is to say that the deed might at the same time have a two-fold operation. The point now raised has never yet been decided, and Mr. Preston, in his edition of Sheppard's Touchstone, 83., makes this observation upon it: "It is far from being clear that a deed, though enrolled, and capable of effect as a bargain and sale, may not be pleaded as a grant, so that uses may arise from the person or estate of the grantee." At all events, therefore, the defendants have good ground for saying that it is far from being clear that it can be so pleaded.

The following certificate was afterwards sent:

This case has been argued before us by counsel, and we are of opinion that the said John Leteney became solely seised of the said hereditaments and premises comprised in the said indenture of the 14th April 1780, so as to be a good tenant of the freehold for suffering a recovery of the entirety of the said hereditaments and premises.

J. BAYLEY.

G. S. HOLROYD.

J. LITTLEDALE.

1826.

HAGGERSTON against HANBURY.

1826.

An attorney entered into a written contract, whereby he agreed to take into partnership in the business of an

attorney, a person who had

not at that time

WILLIAMS against JONES.

ASSUMPSIT upon an agreement, dated 11th November 1822, whereby plaintiff, "in consideration of 250l. paid by the defendant, and of 100l. to be paid by the defendant within two years from the date thereof, agreed to take T. Jones, the defendant's son, into partnership with him, as attornies and solicitors, and to give him a moiety of the profits of the partnership, and of the profits arising from the hundred court of Werrall, of which the plaintiff was lord, and a moiety of the royalties." The partnership to continue for ten years. Breach, pressly appoint- non-payment of the 1007. Plea, non-assumpsit. At the trial before Warren C. J. of Chester, at the Spring

been admitted,

no time was

expressly fixed

for the com

mencement of the partnership: Held, that no

time being ex

ed, the partner

ship commenced from the date of the agreement; that parol evi

dence was pro

perly admitted to shew that the person taken

into partnership

was not an at

torney at the

time when the

agreement was

executed; but

that it could

not be received

to shew that the

agreement was not to take

effect until he should be duly admitted, for that would

assizes, 1825, for that city, the plaintiff proved the agreement as set out in the declaration, but it appeared by the cross-examination of his witnesses that the defendant's son was not admitted an attorney until April 1823. For the defendant it was contended, that the agreement was illegal, as constituting a partnership between an attorney and a person who had not at that time been admitted. For the plaintiff evidence was offered that the agreement was not put in force before the admission of the defendant's son. The learned Judge thought the evidence inadmissible, and directed a nonsuit. In Easter term a rule nisi for a new trial was

make the agree-granted, and now

ment different

from that which

it purported to be; viz. an agreement for a present partnership.

Cross Serjt. was called upon to support it. No time. being fixed for the commencement of the partnership, it was open to the plaintiff to give parol evidence upon

that

that point. The contract, upon the face of it, was perfectly legal, the defendant sought to impeach the legality of it by parol evidence that the defendant's son was not at the date of the contract an attorney; it was, therefore, but reasonable that the plaintiff should be allowed by testimony of the like nature to answer the presumption of illegality so raised, by shewing that the agreement was not to take effect until after the party had been duly admitted. The agreement contains reference to the date, in order to fix the time of payment, but no such reference is made to point out the commencement of the proposed partnership.

BAYLEY J. Where a written contract has been entered into, the Court must look to that in order to ascertain the meaning of the parties; and we are not at liberty to admit the introduction of parol evidence to shew that the agreement was in reality different from that which it purports to be. The declaration in this case describes the contract as forming a partnership to commence in præsenti, and as made between parties, then attornies, and the agreement corresponds with the description given in the declaration. It is described as an absolute contract, but it is now contended that it was conditional, to commence in futuro, if T. Jones should be admitted an attorney. But it is impossible to put such a construction upon it. Here, then, there was a bargain giving a present share of the profits of an attorney's business to a person not admitted; that was illegal, according to the 22 G. 2. c. 46. s. 11.; and even if the evidence had been admissible, to shew that the agreement was to take effect in futuro, the agreement as proved would not correspond with the description of

1826.

WILLIAMS

against JONES.

it

1826.

WILLIAMS

against JONES.

it in the declaration, and on that ground the nonsuit would be right. This rule must, therefore, be discharged.

HOLROYD J. I am of opinion that the nonsuit in this case was right. Whatever may have been the intent of the parties, which I collect to have been that the instrument should take effect immediately, at all events the law gives it that effect, no time for its commencement being mentioned in the instrument. Parol evidence was properly admitted to shew that the agreement was illegal, but not for the purpose of varying the contract, by adding to or diminishing from it. It is contended for the plaintiff that evidence should have been admitted, which certainly would have shewn the contract not to be illegal, but would at the same time have shewn it to be different from the legal import of the instrument declared upon. If the evidence had merely gone to rebut the illegality, I should have thought it admissible; but it went further, and then two objections arose to it; first, it went to shew that an agreement apparently absolute was really conditional; secondly, its effect was to add by parol to an agreement, which, according to Boydell v. Drummond (a) could not be valid, unless in writing, inasmuch as it was not to be performed within a year from the making of it.

LITTLEDALE J. concurred.

Ruie discharged.

D. F. Jones was to have opposed the rule.

(a) 11 East, 142.