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"assign;" on a conveyance of stock, "transfer." In the ordinary assurance by lease and release, "bargain and sale” are the proper operative words for the former, and "release" for the latter." "Grant" is the proper word to convey rents, reversions, and other things that properly "lie in grant;" and this word is as correctly used in the conveyance of freehold as of leasehold property1. In 11 H. Bl. 27. an assignment of an annuity, the word "grant" should always be used. As, however, it may happen that the deed will not operate in the mode intended, although it may be made to operate in some other way, it is usual to employ a variety of operative words, as "grant, bargain, sell, and release;" so that, if it will not operate as a release, it may operate as a grant of the reversion, or as a bargain and sale if enrolled, or otherwise according to the exigencies of the case.

The words "appointment and release" are sometimes mixed together in the same operative part: this is always irregular, and sometimes materially wrong. In the transfer of mortgages in fee, the word "assign" is commonly made use of, instead of the words "grant and release." This is very inaccurate, but there is no doubt of its sufficiently operating in the manner intended. When trustees and the owner of the estate join in the conveyance, it is the general practice to make trustees convey without the word "grant," and to qualify their conveyance by the expression "according to their respective estates or interests, and so far as they can or ought to do at law or in equity." This is done from an apprehension that the word "grant" implies a warranty; but this apprehension is entirely groundless2, more particularly where Co. Lit.384.a.n. there are covenants, because it can in that case create no warranty either express or implied. But where these qualifying expressions are used, care should be taken, in the covenant against incumbrances, to make the trustees covenant absolutely "that they have done no act to incumber," and not to covenant "that they have done no act to prevent their conveying in manner aforesaid," as that in fact amounts to nothing.

A., by deed, "grants, bargains, sells, assigns, and sets over leasehold for lives to B., his heirs and assigns," without a lease for a year, he himself being in actual occupation of the lands:the deed is totally void, as there is no reversion for the word "grant" to operate upon, but it might operate as a bargain and sale, if enrolled within six months. Under an assignment of

Brown v. Meredith, 2 Kee. 527.

"all and singular the legacies, debts, monies, estate and effects, whatsoever and wheresoever, and of what nature or kind soever, of or to which A. in right of his wife or otherwise was possessed," a claim of A's wife to dower out of the estates of her former husband will not pass1. In a deed which is to operate as a covenant to stand seised to uses, every person appointed to take a use under such conveyance must on the face of the deed appear to be in blood and kindred related to the covenantor, or to be the husband or intended husband or wife of the person so related: therefore, if there be a leasing power and lessee no relation of covenantor, the lease in pursuance of the power will be void.

SECT. 6. OF THE PARCELS.

It is never necessary to describe the parcels at length, except where they are intended 'to pass' by the deed. Thus, if a person entitled to a sum of money under a term assign that term, there is no necessity to describe the parcels of the land in which that term was created. In describing the parcels, three things should be attended to:-1st. That the description be sufficiently comprehensive;-2nd. That it be sufficiently descriptive to ascertain the lands;-3rd. That the description in the actual deeds be connected with the description in the former deeds, so as to shew the identity of the lands throughout the title. Trustees frequently object to convey by a new description. The following mode is sometimes used to obviate the difficulty:-The trustees are made to convey in a distinct operative part "all such of the lands conveyed to them" as are afterwards conveyed by the owner, and then the owner himself conveys the lands by a distinct operative part.

It is usual on sales and mortgages, but it does not appear to be necessary in settlements, to identify an estate by detailed descriptions of its denomination, local situation, occupation, abuttals, &c. The object of this minuteness of detail is of course the attainment of certainty as to the lands sold or mortgaged. The general rule is, that the description be true, and that it be certain or be capable of being reduced to certainty; and in successive deeds, the description should vary conformably with the changes which have

given a legal denomination to the property: but great caution is to be exercised in this change of description, and it should never be resorted to unless there be circumstances which render it absolutely necessary; and even then the new description should be so connected with the old one, as to shew the identity of the parcels; for this identity may become matter of minute investigation.

If there be a mistake in the description, which destroys the certainty required by law, the conveyance will become void; but if, notwithstanding the mistake, the lands can still be clearly ascertained, as where the recital is correct, but there is a mistake in the reference to it, the deed would be supported. If the conveyance be of a remainder or reversion expectant on the death of A., this must be set out at length; and if there be a mistake, as if it were described to be expectant on the death of B., it being in reality expectant on the death of A., this is of the substance of the grant, and would be fatal; but if the conveyance were of a reversion, and by mistake it were said to be of a remainder, the reversion would nevertheless pass, as well as by its proper denomination, and so e converso. The correct mode, however, of conveying a remainder or reversion is, to grant the lands subject to the preceding estates.

Property may also pass by a name of reputation, though it be not its true and legal name; and land, which was recently a 'garden,' may be denominated a 'close' or 'pasture.' Where a person is seised of a manor and also of lands within that manor, although the lands would pass under the word 'manor' if part of the desmesnes, yet it may happen that they are severed from the manor, and therefore it is proper to mention them expressly.

It may be stated as the result of all the cases, that, if the facts do not imperatively demand a change in the description, the correct and safe practice is, to adhere as closely as possible to the old description: although it must be admitted, that the practice is too common of changing the description, by adapting it to the present state of the lands, or by substituting, for a general and comprehensive description, one which is more detailed and particular. Parol evidence is admissible to explain a latent ambiguity in a description of parcels 1. Sometimes trustees and mortgagees refuse to convey lands by any other description, than that by which the lands were conveyed to them; there is not much reason for their apprehension on this account, particularly as quali

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fied words may be made use of, which confine the lands in question to the lands originally conveyed to them. The following mode is sometimes used the trustees are made to convey in a distinct operative part" all such of the lands conveyed to them," as are afterwards conveyed by the owner; the owner himself conveys the lands by a distinct operative part.

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When a house or close is part freehold and part copyhold, it will be proper, in the conveyance of the freehold, to say, SO much and such part of the said messuage [or close] as is freehold and not held by a copyhold or customary tenure." On a conveyance of "all that manor and rectory, &c., except the tithes and hereditaments, parcel of the said manor and rectory, heretofore limited to A. B;" the exception in any future conveyance is unnecessary, for the tithes and hereditaments in question are by the exception severed from the manor. For the same reason when A. conveys to B., with the exception of any particular lands, and B. afterwards conveys by reference all the lands conveyed to him by A.; there is no necessity to mention the exception, and such mention would be in fact improper.

SECT. 8.-OF THE HABENDUM.

1. Object of the Habendum, 66.

2. Effect of Repugnance between the
Habendum and the Premises, 67.

3. Distinction between Words of Limitation and Words of Purchase, 67.

1. Object of the Habendum.]-The habendum declares what estate or interest is intended to be granted, -the design of it being to limit the certainty of the thing granted. Hence no person can take an immediate estate by the habendum in a deed, who is not named in the premises: as if land be given in the premises to a husband, habendum to him and his wife, the wife will take nothing because she is not mentioned in the premises 1. To this rule there are three exceptions: 1st, Brooks, 2 Roll. A person not named in the premises, may take an estate in remore v. Hobart, mainder by the habendum. 2nd, If no person be named in the premises, then a person named in the habendum may take 2. 3rd, In a conveyance to uses, a person not named in the premises may take by the habendum. Nothing can be limited in the habendum of a deed, which has not been given in the premises; for the premises being the part of the deed in which the thing is granted, it

1 Brooks v.

Ab. 67; Winds

Hob. 313.

Co. Litt. 21. a.

follows that the habendum, which is only used for limiting and
ascertaining the extent of the thing given, cannot enlarge the
gift; as, if A. grant a manor to B. habendum together with the
advowson of H., this advowson, if "in gross," will not pass 1.
If it be intended to convey the estate subject to any incum-
brances, these should be mentioned in the habendum.
Where a
term or rent charge is conveyed to a grantee with an intent to
merge it in the inheritance, it seems improper to insert an ha-
bendum, as the term or rent charge intended to be merged can
have no separate existence. It is sometimes the practice to
insert a declaration that the grantees shall hold of the chief
lord of the fee; this is perfectly useless, as, since the statute of
quia emptores, the land can be held of no other person.

2. Effect of Repugnance between Habendum and Premises.]If no estate be mentioned in the premises, the grantee will take nothing under that part of the deed, except by implication and presumption of law; but if an habendum follow, the intention of the parties, as to the estate to be conveyed, will be found in the habendum and in that case, therefore, no implication or presumption of law can be made; and if the intention so expressed be contrary to the rules of law, the intention cannot take effect, and the deed will be void. On the other hand, if an estate and interest be mentioned in the premises, the intention of the parties is shewn, and the deed may be effectual without any habendum; and if an habendum follow which is repugnant to the premises, or contrary to the rules of law, and incapable of a construction consistent with either, the habendum will be rejected and the deed stand good on the premises. This distinction was much considered in a recent case 2, where by lease and release certain freehold hereditaments were conveyed by A. to B. and his heirs, to have and to hold the same unto the said B., his heirs and assigns, from and immediately after the death of A. to the several uses thereinafter mentioned. It was held that by the premises an immediate estate of freehold was given to B., and that the habendum had not the effect of rendering the deed void, as giving an estate of freehold in futuro.

3. Distinction between Words of Limitation and Words of Purchase.]-The words inserted in the habendum for the purposes of shewing the quantity of estate intended to be given, are called words of limitation, in contra-distinction to the words in the premises by which the lands are given, and which are called words of purchase.

Anon. 2 Roll. Ab. 65.

Goodtitle v.

Gibbs, 5 Barn.

& Cr. 709.

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