and he in remainder or reversion in fee of the same land, join in a lease for life or years, by deed indented; this [grant] shall enure during the life of C. as the lease of B. and the confirmation of him in reversion or remainder; and after the death of C. as the lease of him in reversion or remainder, and [as] the confirmation of B. without any estoppel. If tenant in tail, and he in reversion, grant a rentcharge in fee, it shall be taken to be the grant of the tenant in tail, and the confirmation of him in reversion; but when the tenant in tail dieth without issue, it shall be taken to be the sole grant of him in reversion. [So if two tenants in common join in a lease, this is a several lease as to each of them, as far as respects his or her share, and the confirmation of the other; see 6 Co. p.15, Treport's case; and if a demise or ejectment be laid on this lease, as the lease of both, the evidence will not maintain the issue, since it ought to be stated in all pleadPerk. Sect. 80. ings as the lease or demise of each.] If two jointtenants be in fee of an acre of land, and they lease it to a stranger for life, and the lessee grant his estate to one of the lessors; in this case, it seems, it shall enure for a moiety by way of grant, and for the other moiety by way of surrender; [namely, it is a surrender in law as to the original moiety of the grantee, being a restoration of his former ownership; and as to the other moiety, it operates as a grant. The surrender in law is a consequence of the union of the freehold and inheritance. If there had been an express surrender, both jointtenants would have taken the benefit of it.]

Perk. Sect. 81.
Dyer, 140.

83.

If there be lord and tenant, and the lord grant his seigniory to his tenant, and to a stranger; this shall enure for a moiety to the tenant by way of extinguishment, * and for the other moiety to the *P. 85.

Perk. Sect. 82, stranger by way of grant. If tenant for life of the grant of a woman sole, grant his estate to the husband of the [same woman being then his] wife, this [assurance] shall enure for the whole by way of grant.

If a lease be made for life, the remainder for life to a stranger, and the lessee grant his estate to his lessor, this [transaction] shall enure by way of grant, [on account of the intermediate estate, and eventually this particular estate may merge.] If there be lord and two joint-tenants in fee, and the lord

Co. super Lit.

372. Co. 7. 14. 1. 147, 148.

5

E. 4. 2.

grant his seigniory to one of his tenants in fee; it
seems this shall take effect for the whole by way
of extinguishment, [on account of the seisin per
my et per tout, and because the same person can-
not be lord and tenant.] If there be lessee for
life, and the reversion descend to two coparceners,
and one of them take a husband, and the lessee
grant his estate to the husband and wife; this [as-
surance] shall enure by way of grant for the whole,
[to preserve the title of the husband under the grant;
and because there are not any moieties between
husband and wife.] If the disseisee, and the heir
of the disseisor (being in by descent,) make a
feoffment by one deed, and livery of seisin there-
upon; this is the feoffment of the heir only, and
the confirmation of the disseisee (77). [It would
have been the feoffment of the disseisee, if there
had not been any descent; for by this arrangement
the title is made consistent with the right, and the
livery would purge the disseisin; but in the text
the descent took away the entry, and the heir had
merely a right of action; and therefore the livery
proceeded from the heir of the disseisor, as the
person who had the seisin, not defeasible by mere
entry.] 6. If one have divers estates in land, [as
for life and in fee,] and he make any charge or
grant upon or out of it, this [grant or charge]
shall issue out of all his estates. And if one have
a possession and an ancient right, and grant a
rent-charge out of the land, or make a lease of the
land, this [grant or charge] shall issue out of both Perk. Sect. 592.
the estates, [i. e. shall be binding on the estate
as an estate; and amount to a confirmation as to
the right,] and it shall enure from him having
several estates, as it shall enure from several per-
sons having the same estates; [viz. different estates
in themselves respectively.] Quando duo jura
concurrunt in una persona, æquum est ac si essent
in diversis. 7. If one that hath a rent-charge out
of a manor, by grant reciting his grant, grant the
same rent to a lessee for life of the manor out of
which the rent doth issue, to have and perceive to
him and his heirs, and surrender to him the deed;

(77) What is deemed a disseisin, see Co. Lit. 153, 181, F. N. B. 177. The consequences of actual disseisin, considered as such, continue law to this day: the disseisee cannot dispose, or devise; the descent takes away his entry. Per Lord Mansfield, in 1 Burr. 112. [Goodright v. Forrester, 1 Taunt. 578. But he may release or confirm.]

Co. super Lit.

302.

this shall not enure to extinguish the rent, but by way of grant, of which the heir of the lessee for life may take advantage, if he do not, by granting away the rent, purchasing the reversion of the manor, or making a feoffment of the manor, and thereby committing a forfeiture, or by some such like means, prejudice himself; for by these means the rent will be extinct and determined. [This is another difference between a grant and a release: a release would have extinguished the charge for the benefit of the persons in remainder, reversion, &c.; but as the grant was to a particular tenant, and his estate in the land, and in the rent, were not co-extensive, there was a suspension only, and not an extinguishment of the estate in the rent. But when the reversion is purchased, the rent may be extinguished; so when a feoffment is made, the feoffment is a conclusion of the right to demand the rent.] If a disseisor grant a rent to the disseisee, and he by his deed doth grant it.over to another; or the disseisor make a lease for life, or gift in tail, Perk. Sect. 69. the remainder to the disseisee, and the disseisee doth grant over this remainder, and the tenant attorn; these grants of the disseisee shall be taken for a grant and a confirmation also, ne res pereat; [so that a wrong-doer is protected, rather than a grant to a stranger shall be defeated.] If there be lord and tenant of white acre and two other acres, and the lord grant, by deed to his tenant, that he will not distrain his tenant in white Mich. 37 & 38 acre for his service; this grant shall not enure to

Eliz. B. R.

Curia.

determine the seigniory in any part, but as a cove-
nant, so that if he do distrain in white acre, the
tenant may have an action of covenant. [Thus
a covenant not to sue one of two obligors, will not
be a release; while a covenant never to sue a solę
obligor, may be pleaded as a release, to avoid cir-
cuity of action; 8 Term Rep. 168, Dean v. New-
hall. And in some cases, the same instrument
which, in certain circumstances, would operate as a
release, shall be construed merely as a covenant.]
If a man have a wood of two hundred acres, and
he grant it to another for life or years, and that he
shall cut therein four or five acres every year; in
this case, albeit the wood be granted, and the
grant shall enure to pass it, yet the grantee can
cut no more but [than] four or five acres by the year.

*P. 86.

14. How a deed of grant shall be

branches thereof.

[The rule is, modus et conventio vincunt legem.]
And yet the grantor, as this case is, cannot him-
self cut any of the wood during the time; as in
case where a man doth grant to another, that he
shall cut every year four or five acres in such a
wood for in this case the grantor may notwith-
standing cut as much as he will, [leaving sufficient
wood for the grantee to satisfy the terms of the
grant. In one case there is a grant of the wood,
and this grant excludes the grantor, notwithstanding
a restraint or regulation is placed on the grantee in
the mode of cutting. In the other case the gran-
tee hath merely a privilege or right of cutting,
without any specific right in the other parts of the
wood.] And here note, that in all the cases be-
fore, according to the construction that the law
makes of the deed, so must the party, that is to
use it, set it forth and plead it; as when it shall
enure as a lease, then it must be pleaded as a
lease, &c. See more in release, numb. 9. surren-
der, numb. 7. confirmation, numb. 7.

In the construction of deeds it must be observed, construed & taken that there are some general rules that are appliin all the parts & cable to all the parts of all kinds of deeds, and some that are applicable only to some kind of deeds, and to some part of the deed only. In the construction therefore of all parts of all kinds of deeds, these rules are universally observed :

General rules.

Co. super Lit.

313.

1. That the construction be favourable, and as near to the minds and apparent intents of the par- Lit. Sect. 563. ties, as possible it may be, and law will permit: Plow. 160. 154. for benigne sunt facienda interpretationes charta- [Cro. Car. 400.] rum propter simplicitatem laicorum. Et verba intentioni non è contra, debent inservire. As, if there be lord and tenant, and the tenant grant the tenements to one man for term of his life, the remainder to another in fee, and the lord grant the services to the tenant for life [for an estate] in fee; in this case, howbeit a grant may enure by way of release, and a release to the tenant for life shall enure to him in remainder, and is [be] an extinguishment; yet, because this is contrary to the intent, it shall be taken for a suspension only of the services during the life of the tenant for life, and the services shall go afterwards to his heir. [In short the deed operates as a grant and not as a release; and in consequence of the party being tenant for life of

Doct. & Stud.

the land and of the services at the same time, the right to the services is suspended during the estate for life; had the assurance been made by words proper to a release, the deed should have enured as such, and of consequence the rent would have been extinguished. The rule is only when the intent is to pass the land one way or another, there it may be good either way. Per C. J. Willes, in 2 Wils. 78. By the word intent is not meant the intent of the parties to pass the land by this or that particular kind of deed, or by any particular mode or form of conveyance, but an intent that the land shall pass at all events in one way or another. Ibid.] But if the intent of the parties be 39. Lit. cap. 1. apparently against law, then the construction shall not apply the deed to their intent, [for the intent cannot change the law;] as if one give land to another and his heirs for twenty years, in this case the executor, and not the heir, shall have this land after the death of him to whom it is given, [for a chattel, except in particular instances, as muniments of title, a horn by which the estate is held in point of tenure, &c. &c. cannot, by the rules of law, be transmitted from the ancestor to the heir. Chattels devolve from the owner to his executor or administrator, i. e. his personal representative. In this case, as the time for which the land is to be held is expressly declared, it shall mark the continuance of the estate, and the words and his heirs being words of surplusage, which cannot have any application, shall be rejected. In the other instance, the express limitation of the party controls what, in its absence, would have been the construction of law. The words, and his heirs, standing substantively, would have passed the fee; but the party having declared that he intended to pass only an estate for years, the construction which will accomplish the intent shall prevail. But see a distinction in Baldwin's case, 2 Rep. 23 b.] So if one by deed intending to give land to another and his heirs, give the land to him, to have and to hold to him, or to him and his assigns, for ever, [it is otherwise in a will, Essay on Estates, chap. Fee,] without these words "and his heirs," this is but an estate for life at the most, [for in deeds the inheritance cannot pass without a limitation to the heirs, &c. in express terms, or by words of reference to those terms.

P