precise mode in which it was intended to have effect, it is to be considered whether it cannot operate with effect in some other mode. The general rule is, "that the "construction be such, that the whole deed " and every part of it may take effect, and "as much effect as may be to that purpose " for which it was made: so as when the "deed cannot take effect according to the "letter, it be construed so as it may take some effect or other (b);" and this rule is highly favoured, and receives a very liberal interpretation and extensive application (c). In many instances, a title, deemed defective for want of due inrolment, might be, and in point of practice may be supported by considering whether the deed though invalid as a bargain and sale inrolled, may not operate as a grant, and pass the freehold in that mode. At the common law there were only four species of assurance; a feoffment, a grant, a lease, and a release in enlargement of an estate previously granted. Unless the owner had the possession, he had not any right to make livery of seisin; nor could he make livery of seisin with effect, unless the tenant in possession, consented to give up the possession, at least (b) Shep. Touch. 84. Willes's Rep. 682. 2 Wils. 75. ON THE TENANT TO THE WRIT OF ENTRY. 42 : pro hac vice, or assented to the livery. All reversions and remainders expectant on any particular estate, even on an estate at will, or a tenancy by copyhold; and also all incorporeal hereditaments were alienable to a stranger by means of a grant by deed and this grant was inchoate only, till the tenant had attorned, or in other words, consented to the grant. The statute of 4 and 5 Ann. c. 16. for the amendment of the law, superseded the necessity of attornment; so that now, notwithstanding the doctrine adverted to by Mr. Fearne, (d) to the contrary, a grant by a person having an incorporeal hereditament, or having a reversion or remainder expectant on any particular estate, (and for the purpose of these observations, it is necessary only to notice a term for years, or at will,) will immediately, and by its own operation, pass the freehold to the grantee. Who shall be a sufficient Tenant to a Writ[ 42 ] of Entry, in Point of Estate. The law has carefully distinguished between those estates which are, and those which are not of a freehold quality. It is of general utility, and of the first importance, with a view to the validity of reco (d) Fearne's Posth, 28. veries, to acquire a correct knowledge of the Estates which are not of freehold are merely chattel interests. Of this descrip[ 43 ]tion are, 1st, terms of years; 2d, interests by statute merchant, statute staple, and elegit; and 3d, other uncertain interests as a devise to executors till debts are paid (f). By these chattel interests, no right to the freehold is conferred; and for this reason, when the person against whom the writ of entry is brought, has merely a term for years, or any other interest less than the freehold, (e) Essay on Estates, 114. Chap. on Chattel Interests. the recovery will be defective. An estate to a man for 99, or any other number of years, if he shall so long live, is a mere chattel interest. The owner of such an interest cannot either be, or make a good tenant to the writ of entry (g). In one instance, by the rule of the common law, a termor for years might by the mere act of law, without descent, have become the freeholder. This hapened by occupancy, when the law cast the freehold on the occupier (h).—That case is an anomaly. The occupier was the tenant of the freehold by reason of the occupancy (i). Though his possession, under the term, was the cause of his occupancy, the term was, in the conclusion, that he had the freehold totally disregarded. Had a stranger been found the[ 44 ] occupier, he would have had the freehold as occupant. By the statute law (k), the executors and administrators are substituted in the place of the general occupant: and Mr. Hargrave (1) observes, "the title by general occu pancy is now universally prevented by the stat, of 29 Car. II. c. 3. sect. 12; and 14 Geo. II. c. 20. sect. 9." (g) Smith ex dem. Dormer v. Parkhurst, 3 Atk. 135. (h) Hale's Notes to Co. Litt. 41, b. Pig. on Recov. 35. Harris v. Fielding, 1 Keb. 785. VOL. 1. E (i) Hale's Notes to Co. Litt. 41, b. (k) 29 Car. 2, c. 3, sec. 12. 14 Geo. 2, c. 20. s. 9. (4) Harg. Co. Litt. 41, b. note 5. The statutes however have not substituted an occupant in those instances in which by law there could not be a general occupant, as in copyholds, and in rents, and other incorporeal hereditaments (m). And it was strenuously urged by Lord Redesdale, while chancellor in Ireland (n) that the executors or administrators never could, by law, have been special occupants. In Ripley v. Waterworth (0), Lord Eldon did not fully subscribe to this doctrine. And there is one case in which, perhaps, there may for a time, even at this day, be a freehold by general occupancy, namely, in the interval between the death of a tenant pour autre vie, who dies intestate, and the time of obtaining letters of administration of his effects. Without allowing a title by occupancy to exist, for the intermediate time, the maxim of the law, which so carefully guards against the abeyance of the freehold, would be infringed. Unless the law leaves the freehold open to occupancy during the intermediate time, it must be assumed that the statute of 14 Geo. II. requires the construction, that it gives to the administrator a title by relation; and this construction must proceed on the ground (m) Withers v. Withers, Ambl. 151. 186 Zouch v. Forse, 7 East. 2 Bl. Com. 260. and see 3 East. 276. (n) 1 Sch. and Lef. 288. |