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reserving rent to me and the heirs of my body, the words "of my body" are not void, and so to leave it a rent in fee-simple; but the words "heirs" and all are void, and leave it but a rent for life: except that you will say, it is but a limitation to any my heir in feesimple which shall be heir of my body; for it cannot be a rent in tail by reservation.
So if I give land with my daughter in 45 Ea. 3. f. 18. frank marriage, the remainder to I. S. and [24 Eliz.] his heirs; this grant cannot be good in all parts, according to the words; for it is incident to the nature of a gift in frank marriage, that the donee hold of the donor and therefore my deed shall be taken so strongly against myself, that, rather than the remainder shall be void, the frank marriage, though it be first placed in the deed, shall be void as a frank marriage.
2 But if I give land in frank marriage, re- 4 H. 6. f. 22 serving to me and my heirs ten pounds rent; 26 Ass. pl. 66. now the frank marriage stands good, and the reservation is void, because it is a limitation of a benefit to myself, and not to a stranger.
So if I let white acre, black acre, and green acre to I. S. excepting white acre, this exception is void, because it is repugnant; but if I let the three acres aforesaid, rendering twenty shillings rent, viz. for white acre ten shillings, and for black acre ten shillings, I shall not distrain at all in green acre, but that shall be discharged of my rent.
So if I grant a rent to I. S. and his heirs 46 E. 3. f. 18. out of my manor of Dale, et obligo manerium pl. 17.
1 Perhaps Webb v. Porter cited by Sir Matthew Hale in his notes on Co. Lit. 21 a.
2 All these remaining cases of grants against the law are omitted in the Camb. MS.
prædictam et omnia bona et catalla mea super manerium prædictum existentia ad distringendum per ballivos domini regis this limitation of the distress to the king's bailiffs is void; and it is good to give a power of distress to I. S. the grantee, and his bailiffs.
2 Ed. 4. f. 5. pl. 11.
But if I give land in tail tenendum de capitalibus dominis per redditum viginti solidorum et fidelitaten: this limitation of tenure to the lord is void; and it shall not be good, as in the other case, to make the reservation of twenty shillings good unto myself; but it shall be utterly void, as if no reservation at all had been made: and if the truth be that I, that am the donor, hold of the lord paramount by ten shillings only, then there shall be ten shillings only intended to be reserved upon the gift in tail as for owelty.
Dy. f. 46.
21 Ed, 3. f. 49. So if I give land to I. S. and the heirs of his body, and for default of such issue quod tenementum prædictum revertatur ad I. N.; yet these words of reversion will carry a remainder to a stranger. But if I let white acre to I. S. excepting ten shillings 35 H. 6. f. 34. rent, these words of exception to mine own benefit shall never inure to words of reservation.
But now it is to be noted, that this rule is the rule which is last to be resorted to, and is never to be relied upon but where all other rules of exposition of words fail; and if any other rule come in place, this giveth place. And that is a point worthy to be observed generally in the rules of the law, when they encounter and cross one another in any case, that it be understood which the law holdeth worthier and to be preferred. And it is in this particular very notable to consider, that this being a rule of some strictness and rigour, doth not, as it were, his office, but in absence of other
rules which are of more equity and humanity. Which rules you shall find afterwards set down with their expositions and limitations. But now to give a taste of them to this present purpose:
It is a rule, that general words shall never be stretched to a foreign intendment; which the civilians utter thus: Verba generalia restringuntur ad habilitatem personæ, vel ad aptitudinem rei. Therefore, 14 Ass. pl. 21. if a man grant to another common intra metas et bundas villa de Dale, and part of the ville is his several, and part is his waste and common; the grantee shall not have common in the several and yet that is the strongest exposition against the grantor.
So it is a rule, Verba ita sunt intelligenda, Litt. sec. 345. ut res magis valeat, quam pereat. And therefore if I give land to I. S. and his heirs, reddendo quinque libras annuatim to I. D. and his heirs; this implies a condition to me that am the grantor: yet it were a stronger exposition against me to say the limitation should be void, and the feoffment absolute.
So it is a rule, that the law will not intend a wrong; which the civilians utter thus: Ea est accipienda interpretatio, quæ vitio caret.1 And therefore if 10 Ea. 4. f. 1. the executors of I. S. grant omnia bona et catalla sua, the goods which they have as executors will not pass, because non constat whether it may be a devastation, and so a wrong: and yet against a trespasser that taketh them out of their hand they shall declare quod bona sua cepit.
1 The Camb. MS. here gives a different example: "So if I grant all the timber trees crescentes super terras meas in D., and I have lands in D. in fee simple and other lands for life, this grant shall be construed only to extend to the lands I have in fee simple: and yet the other exposition were stronger against me. And so it is of all other rules of exposition of words." And here this Regula ends in the MS.
So it is a rule, words are to be understood that they work somewhat, and be not idle and frivolous: Verba aliquid operari debent; verba cum effectu sunt accipienda. And therefore if I bargain and sell you four parts of my manor of Dale, and say not in how many parts to be divided; this shall be construed four parts of five, and not of six nor seven, &c. because that is strongest against me. But on the other side, it shall not be intended four parts of four parts, that is the whole, or four quarters; and yet that were strongest of all: but then the words were idle and of none effect.
So it is a rule, Divinatio, non interpretatio est, quæ omnino recedit a litera. And therefore if I have a fee farm-rent issuing out of white acre of ten shillings, and I reciting the same reservation do grant to I. S. the 3 H. 6. f. 20. rent of five shillings percipiend' de reddit' præ
dict' et de omnibus terris et tenementis meis in Dale, with clause of distress; although there be atturnment, yet nothing passeth out of my former rent. And yet that were strongest against me, to have it a double rent or grant of part of that rent with an enlargement of a distress in the other land: but, for that it is against the words, because copulatio verborum inclinat accep tionem in eodem sensu, and the word de (anglicè out of) may be taken in two senses, that is, either as a less sum out of a greater, or as a charge out of land or other principal interest; and that the coupling of it with lands and tenements doth define the sense to be one rent issuing out of another, and not as a less rent to be taken by way of computation out of a greater; therefore nothing passeth of that rent. But if it stood of itself, without these words "lands and tenements:" viz. I, reciting that I am seised of such a rent of ten shillings, do grant
five shillings percipiend' de eodem reddit' it is good enough with atturnment; because percipiend' de etc. may well be taken for parcella de etc. without violence to the words. But if it had been percipiend' de I. S. without saying de redditibus prædict', although I. S. be the person that payeth me the foresaid rent of ten shillings, yet it is void. And so it is of all other rules of exposition of grants; when they meet in opposition with this rule, they are preferred.
Now to examine this rule in pleadings as we have done in grants; you shall find that in all imperfections of pleadings; whether it be in ambiguity of words and double intendments; or want of certainty and averments; or impropriety of words; or repugnancy and absurdity of words; ever the plea shall be strictly and strongly taken against him that pleads.
For ambiguity of words:
If in a writ of entry upon disseisin the ten- 22 H. 6. f. 43. ant pleads jointenancy with I. S. of the gift and feoffment of I. D. judgment de briefe; and the demandant saith that long time before I. D. any thing had, the demandant himself was seised in fee quousque prædict' I. D. super possessionem ejus intravit, and made a joint feoffment, whereupon he the demandant reentered, and so was seised until by the defendant alone he was disseised; this is no plea: because the word intravit may be understood either of a lawful entry, or of a tortious, and the hardest against him shall be taken, which is, that it was a lawful entry: therefore he should have alleged precisely that I. D. disseisivit.
So upon ambiguity that grows by refer- Dy. 1. 66. ence: if an action of debt be brought against I. N. and I. P. sheriffs of London, upon an escape, and the