(E 9.) The Habendum.

The office of the habendum is (h) to name the grantee, and limit (1) the certainty of the estate. Co. L. 6. a 2 Rol. 65. 1. 25. 9. Co. 47. b.

As, if a man grants land to A. habendum eidem A. et hæredibus suis, or, hæredibus de corpore suo, or, pro termino vitæ, vel annorum.

And if a limitation be to A. habendum to the use of him and the heirs of his body, it will be a good estate tail; for it does not operate by way of use, but as a limitation at common law. R. Cro. Car.

231.245.

So the habendum may abridge or alter the generality of the premisses. Hob. 171. (k)

As

1 B. Moore, 346. 2. In a conveyance in fee of a messuage, &c.; by an exception of all veins of coal beneath said hereditaments, with liberty to enter and sink pits for getting all such coals, except as to such lands as lie within one hundred and fifty yards of said messuage, and except any homestead; liberty is reserved to the vendor to sink pits any where except within one hundred and fifty yards, &c. under any homestead. 15 East, 444.

(h) 1. Its office is only to limit the certainty of the estate granted. 2. Therefore no person can take an immediate estate by the habendum of a deed, where he is not named in the premises; for it is in the premises of a deed that the thing is really granted. 2 Rep. 55. a..

(i) 1. The words inserted in the habendum for the purpose of shewing the quantity of estate intended to be given, are called words of limitation; in contradistinction to the words in the premises by which the lands are given, and which are called words of purchase. 4 Cruise, 332.-2. Thus, Mr. Fearne says, in general, words of purchase are those by which, taken absolutely without reference to, or connection with, any other words, the estate first attaches, or is considered as commencing in the person described by them; whilst words of limitation operate by reference to, or connection with, other words, and extend or modify the estate given by those other words. Cont. Rem. 108.-3. So, he observes, that when the word heirs, &c. operates only to expand an estate in the ancestor, so as to let the heirs described into its extent, and entitle them to take derivatively, through or from him, as the root of succession, or person in whom the estate is considered as commencing, they are properly words of limitation. But when they operate only to give the estate imported by them to the heirs described, originally, and as the persons in whom that estate is considered as commencing, and not derivatively from or through the ancestor, they are properly words of purchase. Id. 107. 4. In some cases, the same words operate as words of purchase, and also as words of limitation. 4 Cruise, 333.-5. Thus, Lord Coke says, where a remainder is limited to the right heirs of B., it need not be said, and to their heirs; for being plurally limited, it includes a fee-simple; and yet it rests but in one by purchase. 1 Inst. 10. a. 6. So where an estate is limited to the heirs male of the body of A., the eldest son of A. takes by purchase, and his male issue by descent. 4 Cruise, 333.

(k) 1. For where a deed first speaks in general words, and afterwards descends to special ones, if the special words agree with the general ones, the deed shall be intended according to the special words. 4 Cruise, 331. 8 Rep. 154. b.-2 Thus where no estate is limited in the premises, and an express estate for years is limited in the ha bendum, this will qualify and abridge the general intendment of the premises, by which an estate for life would otherwise have passed. 1 Inst. 183. a. 2 Rep. 55. a. 3. So if lands are given in the premises to A. and his heirs, habendum to him and the heirs of his body, he will only take an estate tail; because the habendum may qualify and restrain the general import of the word heirs, & Rep. 154. b. 71 Rol Abr. 68.4. And where lands were granted to A. and his heirs, habendum to him and his heirs for three lives; the habendum was construed so as to abridge the estate, given in the premises, to an estate for three lives. T. Jon. 4.. 5. And if a lease be made

As, if a reversioner after three lives grants his estate to A. for life, habendum for life when the three lives expire; it will be a good grant of the reversion for life. Hob. 171.

So, if a grant be to two, habendum to the one for life, and after his death to the other in fee; the one shall take for life, remainder to the other. R. 8 Ed. 3. 59. b. 2 Co. 55. b. Pl. Com. 153. cont. but 160. accord. Acc. Hob. 172. Dy. 126. b.

If a grant be to two jointly, the habendum may limit a moiety to the one, and a moiety to the other; by which they shall be tenants in common. Co. L. 183. b. Cont. Pl. Com. 153. but acc. 160. a

Vide Estates, (K 2.)

So a grant may be to three, habendum to one for life, remainder to another for life, remainder to the third for life, successive. 2 Rol. 65. l. 50. R. Dy. 160. b. Per 2 J. Mo. 26. R. Dy. 361.

So a grant to A. habendum to him and his wife for their lives successive, will be a good remainder to the wife. R. 2 Cro. 372. R. 2 Cro. 564.

So, if a grant, or feoffment be to A. and his wife and their heirs, habendum to them and the heirs of their bodies, without more: they have an estate tail, with a remainder expectant in fee. R. 2 Rol. 19. 23. But said, that it shall be only an estate tail, without a remainder in fee expectant; for the habendum abridges the generality of the premisses. Co. L. 21. a. 8 Co. 154. b.

So a grant of rent to A. and his heirs, habendum to him and his heirs, to the use of him and his heirs for the life of B. he shall have only a discendible freehold. R. Mo. 876.

So, where no estate is expressed in the premisses, the habendum may frustrate and make it void; as, if a feoffment be to A. habendum, after the death of the grantor, for life; the habendum makes the feoffment void! for a freehold cannot commence in futuro. 2 Rol. 66. 1. 5. Hob. 171, Skin. 544.

(E 10.) Shall not be repugnant.

But if the habendum be repugnant to the premisses, (7) it shall be void

made to two persons, habendum the one moiety to the one, and the other moiety to the other, the habendum makes them tenants in common, whereas by the premises they were joint-tenants. 1 Inst. 185. b. 190. b. supra. - 6. Where the premises and the habendum of a deed are equally clear, the former will not be controlled by the latter, but both will be allowed to have an operation; it being a rule, that a deed shall be construed in such a manner, as that each part may be effectual, if they can stand together. 4 Cruise, 332. - 7. Thus if lands are given, in the premises, to a person and the heirs of his body, habendum to him and his heirs, he will take an estate tail, with a fee simple expectant. 8 Rep. 154. b. 1 Inst. 21. a.- 8. And where lands were given to husband and wife, and to their heirs, habendum to them and the heirs of their bodies, it was held that the grantees took an estate tail with a fee simple expectant. Cro. Jac. 476.

(1. In the case of things which derive their effect from the delivery of the deed, without other ceremony, and which lie in grant; there the habendum, if repugnant to the premises, is void. As if a man grants rent or common out of his land, in the premises of a deed, to one and his heirs, habendum to the grantee for years, or for life, the habendum is repugnant and void; for an estate in fee passed

void: (m) as, if a grant be of all his term, habendum after his death; the habendum will be void. Hob. 171. R. Dy. 272. a. (n)

Or, of all his lands, to the grantee, his executors and administrators; for this passes the term. R. 1 Sal. 346. Skin. 542.

If a grant be by the premisses to A. and his heirs, habendum after his death to A. and the heirs of his body; A. shall take immediately; for a freehold in futuro cannot be: and therefore the habendum, being repugnant to the premisses, shall be void. R. 3 Lev. 389. (0)

So the habendum cannot (p) enlarge the premisses: (q) and therefore, if A. leases land to B. for years, habendum to B. and C. for life; no

in the premises, by the delivery of the deed. 2 Rep. 23. b. 2. But where a ceremony is requisite to the perfection of the estates limited by the premises; and nothing more than the mere delivery of the deed is required to the perfection of the estate limited by the habendum; there although the habendum be of a lesser estate than is men tioned in the premises, if the ceremony is not performed it shall stand. 4 Cruise, 330. --5. A person by indenture covenanted, granted, and demised, and to farm let certain lands to A. B., and A. her son, and to the heirs of the said A.; habendum to them from the date of the same indenture until the end of ninety-nine years: no livery of seisin was made. It was resolved, that as livery of seisin was necessary to perfect the estate limited în fee, nothing would have passed but an estate at will, if the deed had not gone further; but as an estate for years was limited in the habendum, that was good presently, by the delivery of the deed. And so it appeared to have been the intention of the parties, that the deed should take ef fect by the delivery. 2 Rep. 23.

(m) And the grantee will take the estate given in the premises. A consequence of the rule, that deeds shall be construed most strongly against the grantor, and therefore that he shall not be allowed to contradict or retract, by any subsequent part of the deed, the gift made in the premises.

(n) 1. But where the premises in a grant are repugnant to the habendum, which is consonant to the intention of the parties, as expressed in the grant, the premises so far as they are repugnant, shall be rejected as surplusage, and the habendum preferred. 3 East, 115.- 2. And therefore where a lease for a year having been made between A. and B., the release, stating B. to be a trustee for C., granted the premises unto C. in his possession being by virtue of an indenture of lease, bearing date the day before the release, and to his heirs, habendum to B. and his heirs, to such uses as C. should appoint; the release, it was held, was sufficient to convey the premises to B., and the words in the granting part unto C., &c. were rejected as surplusage. Ibid.

(0) 1. So if lands are given in the premises of a deed to A. and his heirs, habendum to A. for life; the habendum is void, being utterly repugnant to, and irreconcileable with the premises. Plowd. 155.-2. So if the grant were to two persons, habendum to the one for life, remainder to the other for life, it would be void; because by the premises the grantees were joint-tenants; and so the habendum would sever the join ture, and make the one to have the whole during his life, and the other to have the whole after him. Ibid.

(p) 1. But see 1 Inst. 299. a. - 2. And it is affirmed, that where an estate is given in the premises to the grantee for life, habendum to him and his heirs, the habendum shall enlarge the premises, and the grantee therefore will take an estate in fee. Ibid.

(9) 1. Nothing can be limited in the habendum of a deed, which has not been given in the premises; because the premises being the part of a deed in which the thing is granted, it follows that the habendum, which is only used for the purpose of limiting the certainty of the estate, cannot increase the gift; for in that case the grantee would in fact take a thing which was never given to him. 4 Cruise, 329. 2 Rol. Abr. 65. Touch. 76.2. Thus if a person grants a manor, habendum una cum another manor, et una cum advocatione of another manor, this is not good, because it was not included in the premises. 2 Rol. Abr. 65.-3. But if a thing is comprehended in the premises, and has another name in the habendum, the habendum is good; as if the nomination of an advowson is granted, habendum the advowson, it is good, though it varies in name; for it is one and the same thing. Plowd. 157. T 4 thing

thing passes Jon. 310. (r)

to C., nor shall B. have an estate but for his own life

(F) When a deed shall be avoided.

(F 1.) By razure, interlineation, &c.

But if a deed after execution (s). be altered in a material place by razure, interlineation, addition, &c. by the obligee himself, it shall be void, and the obligor may plead non est factum. R. 11 Co. 27. Pigot. (t)

As, if it be altered in the name of the obligor, or obligee, or sum, &c. 11 Co. 27. a.

Or, by the addition of a christian name, or addition of the obligor. R. Cro. El. 626.

Or, by the addition of a condition for the advantage of the obligor. R. Cro. El. 626.

So, if he makes a lease agreeable to the counterpart, by increase of the rent. R. Cro. El. 627.

So, if he erases part of the land demised.

R. Mo. 35.

So, if a word be dashed through with a pen, though it be legible. 11 Co. 27. a.

So a deed shall be void, if it be altered in a material (u) place by a stranger, without the privity of the obligee. R. 11 Co. 27. a. but this seems, per 2 J. understood to be, in a place so material that it cannot be sued. 1 Rol. 40. R. Cro. El. 626. R. Cro. El. 626. Mo. 10. (x)

Though it be before the obligee had notice of the execution of the deed. R. Cro. El. 627.

-

(r) 1. 2 Rol. Abr. 67. Hob. 313.-2. To this rule, however, that no person can take an immediate estate by the habendum of a deed, when he is not named in the premises, there are some exceptions. - 3. For where lands are given in frank-marriage, the wife, who is the object of the gift, may take by the habendum, though not named in the premises. 4 Cruise, 328. 4. And if no name whatever be mentioned in the premises, then a person named in the habendum may take. Ibid.-5. There is a case where the two chief justices and the chief baron certified to the chancellor, that a lease was good though the lessee was named only in the habendum. 1 Inst. 7. a. n. 3. -6. And in declarations of uses, a use may be declared in the habendum to a person, to whom no estate is granted in the premises; and therefore where A., by indenture between him and B. and C., bargained, sold, and enfeoffed to B. to hold to said B. and C. their heirs and assigns, to the use of them and their heirs for ever; it was held, that although the feoffment was good only to B. and his heirs, yet the use limited to B. and C. and their heirs, was good; because the seisin of B. was sufficient to serve the use declared to C. 13 Rep. 55.

t

(s) 1. An interlineation, if nothing appear to the contrary, will be presumed to have been made at the time when the deed was executed, not after. 1 Keb. 22.- -2. And it has also been held, that an interlineation by which a power of sale was enlarged, should be presumed to have been made at the time of the execution of the deed and not after; if nothing appeared to the contrary. Fitz. 204.

(t) 9 East, 351: Vide 1 Anst. 227.

(u) Insertion by a stranger of hundred' between one' and ' pounds,' in the condition of a bond, meeting the obvious sense, is an immaterial alteration. 1 Mars. 311. 5 Taunt. 707. ›

(4) And in a recent case, the court of king's bench appears to have considered, that an alteration by a stranger, or a mere spoliator, will not invalidate the deed. 6 East, So,

309.

So, if it be altered by the obligee himself, though it be in a place not material. 11 Co. 27. a.

As, by the addition of a date. Cro. El. 800.

So, by razure, &c. the whole deed shall be void. 11 Co. 28. b.

Though it contains several distinct covenants, or clauses; and the razure be only in one. 11 Co. 28. b.

But if the alteration be by the obligor himself, in a place not material, the deed shall not be void: as, if it be an addition to the name of the obligee. 11 Co. 27. a.

So an alteration by a stranger, in a place not material, without the privity of the obligee, does not avoid the deed. R. 11 Co. 27. a. 1 Rol. 40.

40.

Or, if it does not appear, by the pleadings, to be material. I Rol.

Nor an alteration by the executor of the obligee, in a place not material, and which tends to the benefit of the obligor. R. 1 Leo. 282.

So an alteration by the obligor himself, in a material place, does not avoid the deed. 11 Co. 27.

So, if a material alteration be by consent of the obligor and obligee, it does not avoid the deed: as, if the name of another obligor be interlined, and he executes the deed. R. 2 Lev. 35.

Or, upon an agreement between them that an addition shall be made after the deed sealed. Per Poph. Cro. El. 627.

(F 2.) By breaking off the seal.

So, if the seal of any deed be broken off, the deed shall be void. (y)

(y) 1. If a deed be delivered up to be cancelled, to the party who is bound by it, and it is accordingly cancelled, by tearing off the seals, or otherwise defacing it; or if the person who has the deed cancels it, by agreement with the other party; it becomes void. Touch. 70.-2. But where an estate has actually passed by a deed, the cancelling of such deed afterwards will not divest any estates out of the persons in whom they were vested by that deed. 2 Ch. Rep. 52. 2 H. Blk. 259. 3. As where a father, having quarrelled with his eldest son, made a settlement on his wife of 100l. a-year, in augmentation of her jointure; and afterwards, being reconciled to his son, he cancelled the deed, and so it was found at his death. On a trial at law, the deed being proved to have been executed, was adjudged good, though cancelled. Prec. Ch. 235.4. And where in setting forth a conveyance, it was stated, that a deed of release was cancelled, by the releasor's seal being torn off and destroyed; and that part of the deed was lost, with a profert in curia of the residue; it was held to be good pleading; and Lord Chief Justice Eyre said, I hold it clear that the cancelling of a deed will not divest property, which was once vested, by transmutation of possession; and I will go farther and say, that the law is the same with respect to things that lie in grant. In pleading a grant, the allegation is, that the party at such a time did grant. But if by accident the deed is lost, there are authorities enough to show, that other proof may be admitted. The question in that case is, whether the party did grant. To prove this, the best evidence must be produced, which is the deed; but if that be destroyed, other evidence may be received, since God forbid that a man should lose his estate, by losing his title deeds.' 2 H. Bl. 259. 5. Where a tenant for life, with a power of leasing, in consideration of the surrender of a prior term, granted a new lease, which was void; it was held that the prior term, though the indenture of lease was in fact cancelled, and delivered up, when the new lease was granted, might be set up by the tenant in bar to an ejectment brought by the remainder-man, after the death of the zenant for life. 6 East, 86.

So,