1826. WYNNE against GRIFFITH. uses, and when that distinction is adverted to, there is not any discrepancy between the last case and the case of Cox v. Chamberlain (a); Roach v. Wadham (b) was decided upon the ground, that the intention of the parties was to be effectuated only by considering the instrument as an appointment, although it may well be doubted whether a different intention might not have been collected from the instrument. At all events, it would have been more consistent with Cox v. Chamberlain, and with the practice of the profession, which was founded on the rule laid down in Sir Edward Clere's case (a rule which has governed titles for a period of 200 years), to have held the deed to operate as a conveyance and not as an appointment. (c) In Roach v. Wadham much stress was placed upon the circumstance, that the trustee joined in the conveyance, but, in point of fact, he was a mere releasee to uses, and he had no interest whatever in the estate in question. If he had had any estate, his concurrence would have afforded decisive evidence that Watts did not intend to exercise his power. If the instrument in this case be held to operate as an appointment, the words "bargain, grant, sell, release and confirm," are inoperative as words of conveyance. If the words" direct, limit, and appoint," operate as an appointment, the other words operate as a release and an extinguishment of the estate. On the other hand, if the words of conveyance operate as a conveyance, the words direct, limit, and appoint must declare an intention to release and extinguish the power. Either the words of conveyance or of appointment must be rejected; but if the words of appointment are retained (a) 4 Ves. jun. 631. (c) See Sugd. on Pow. 511. 4th edit.. (0) 6 East, 289. and and those of conveyance are rejected, then this Court, which is a Court of law, cannot take notice of uses and trusts, and the deed can only be construed by the rules of law. It is a rule of law, that when two parts of a deed are inconsistent with each other, the first part is to be retained and the latter rejected. According to the construction contended for, the Court must reject all the words of grant, all the words of uses, and so make one half of the deed wholly inoperative. But assuming that the estate was vested in the trustees, a reconveyance from them ought, after so great a lapse of time, to be presumed. [Bayley J. Such a presumption ought not to be made by this Court in a case sent to them from the Court of Chancery. It is a presumption of fact which is to be made by a jury, and not a presumption of law which is to be made by the Court. Upon proof of the facts stated in this case, a judge would not direct a jury to presume a reconveyance, but would leave it to them to make such presumption or not, as they thought proper. It is a conclusion to be drawn by the jury from the circumstances of the case.] Coote contrà. It may be conceded, that if this instrument is to be considered as a conveyance by H. Roberts and C. Roberts, it will operate as an extinguishment of the power, because, after H. Roberts had conveyed his interest, it would have been impossible for him to concur in exercising the power of appointment, so as to defeat that which he had already done. It may be conceded also, that where the objection to a deed is, that it cannot operate in a particular mode, the party claiming under it may plead it as operating in some other way to support his interest. But this is not a case 1826. WYNNE against GRIFFITH 1826. WYNNE against GRIFFITH. case where a deed can only take effect in one of two ways; for here it may take effect either as an appointment or as a release. The question, whether a particular instrument operates as a conveyance or as an appointment, has been considered in a court of law to depend entirely on the intention of the parties at the time when they executed the instrument. There is, in the cases on this subject, some obscurity arising from the ambiguous sense of the word intention. In almost every human action there is a twofold intention: first, there is an intention as to the mode of doing an act; and, secondly, an intention as to the object to be effectuated by the act. In the cases upon this subject, the first question considered has been, whether the parties, upon the face of the instrument, have sufficiently manifested their intention that it shall operate particular mode. If that be explicitly declared, then the Courts, without reference to the ultimate object which the parties had in view, have held that it must operate in that particular mode. But if that intention is not clearly manifest on the face of the instrument, but is left in doubt, then, in order to ascertain whether the parties have intended it to operate in one mode or the other, the courts have looked to the ultimate object of the parties, and have construed the instrument to oper ate in that way which will best effect that object. That is the sound principle to be deduced from the authori ties on this subject; and that principle governed the decision of this Court in the case of Roach v. Wadham. (a) There the Court decided that the parties in tended the deed should operate in a particular mode, (a) 6 East, 289. viz. by way of appointment, because it clearly appeared, from the instrument itself, that the parties intended that it should operate in that mode. If that be the principle upon which the question in this case is to be decided, there is no difficulty in it, because it appears evident from the instrument itself, that the parties intended it should operate as an appointment, in execution of their power. If they had intended that it should operate as a conveyance of their interest, it would have been unnecessary for any other persons than C. Roberts and H. Roberts to have been parties to the deed; but it is executed by four, and one of them, Mary Roberts, had no legal or equitable estate in the property. If C. Roberts and H. Roberts are considered the only conveying parties, the acts of D. Roberts and M. Roberts will be nullified, and their names may be considered as struck out of the deed. [Holroyd J. May it not operate as a confirmation by them?] M. Roberts had no estate either in possession or reversion in the property, and D. Roberts was a married woman. With what intent, therefore, could Mary Roberts execute the bargain and sale for a year? It is true, that where the same person has an interest and a power, and the deed may operate either as a conveyance in respect of the interest, or as an appointment in execution of the power, it shall refer to the interest and not to the power; but that rule does not apply to a case like this, where four persons had the power and one only the fee, and the four have executed the instrument. A reasonable construction must be put upon the act done by the four, and that act could only have been done with reference to the power. The case of Roach v. Wadham was not so strong a case as the present; it was an action against the 1826. WYNNE against GRIFFITH. the defendant as executor, and also as heir and devisee of J. Wadham, for arrears of a rent-charge. There the estate had been conveyed to a person named Thomas Coates, his heirs and assigns, to the use of such persons as W. Watts should by deed appoint; and for want of such appointment, to the use of Watts and his heirs; and there was reserved a fee farm rent to the grantors, their heirs and assigns, with a covenant by Watts for the payment of it, with clauses of distress and re-entry in default of payment. By subsequent deeds of lease and release Coates, by the directions of Watts, bargained, sold, and released, and Watts granted, bargained, sold, aliened, released, ratified, and confirmed, and also directed, limited, and appointed the premises to the purchasers, their heirs and assigns, as tenants in common, subject to the rent and performance of covenants. The question argued was, whether the deeds operated as a conveyance or as an appointment. It is clear that they might have operated in either way, and therefore, according to the argument urged on the other side, in the present case, it was wholly unnecessary to consider the question whether it was intended at the time when the deed was executed that it should operate in one way or the other, because it was competent to the plaintiff, who was the representative of the party claiming the rent under the deeds, to have made his election that it should operate as a conveyance; but the point considered and decided by the Court was, that it was the intention of the parties at the time when they executed the instrument that it should operate as an execution of the power. There Lord Ellenborough says (a), "Had (a) Page 305. |