[on paper or parchment, duly stamped (d); 3, Sufficient and legal words, properly disposed; 4, Reading, if desired before the execution; 5, Sealing, and by the statute of frauds, in most cases, signing also; or 6, Delivery:—it is, in all such cases, a void deed ab initio. It may also be avoided by matter ex post facto: as, 1, By rasure, interlining, or other alteration in any material part; unless a memorandum be made thereof at the time of the execution and attestation (e). 2, By breaking off or defacing the seal (f). 3, By delivering it up to be cancelled (g), that is, to have lines drawn over it in the form of lattice work or cancelli; though the phrase is now used figuratively for any matter of obliteration or defacing it. 4, By the disagreement of such, whose concurrence is necessary, in order for the deed to stand: as of the husband, where a married woman is concerned; or of an infant or person under duress, when those disabilities are removed; and the like.]

Deeds are also in some cases avoided by objections relating to the consideration on which they are founded, or to their want of consideration.

The consideration of a deed [may be either a good or a valuable one. A good consideration is such as that of blood or of natural love and affection, where a man grants an estate to a near relation ;-being founded on motives of generosity, prudence, and natural duty: a valuable consideration is such as money, marriage, or the like, which the

(d) Vide sup. p. 490.

(e) See Com. Dig. Fait (F. 1); Pigot's case, 11 Rep. 27; Matson v. Booth, 5 M. & Sel. 223; Hall v. Chandless, 4 Bing. 123; Hudson v. Revett, 5 Bing. 368; Davidson v. Cooper, 13 Mee. & W. 343. If there be an erasure or interlineation in a deed, it will be presumed, in the absence of proof to the contrary, to have been made at or before the time

[law esteems an equivalent given for the grant (h).] Deeds made without any consideration whatever, or even those made for good, though not for valuable, consideration, are said to be voluntary; and by force of the statute 27 Eliz. c. 4 (i), voluntary deeds are void as against bonâ fide purchasers (k); and are also void (by 13 Eliz. c. 5) as against creditors, where the grantor is indebted to such creditors at the time, to the extent of insolvency (1). So all deeds are liable to be impeached if founded on immoral or illegal consideration, or if obtained by fraud (m). But in general, their legal efficacy will not be prevented by the mere want of consideration. For in this respect they are distinguished from simple contracts, that is, contracts not under seal; to the validity of which some consideration is essential but a writing sealed and delivered as a deed, is supposed by the law to be made with due deliberation; and to express, fully and absolutely, the intention of the party by whom it is executed: he is therefore bound by its execution, whether he received a consideration for the grant or engagement which it comprises, or not (n). We

(h) Twyne's case, 3 Rep. 83; 2 Rol. Abr. 779; Palm. 214.

(i) Made perpetual by 39 Eliz. c. 18, s. 31.

(k) See Johnson v. Legard, 6 M. & Sel. 60; Doe v. Manning, 9 East, 59; Doe v. Rolfe, 8 Ad. & El. 650; Metcalfe v. Pulvertoft, 1 Ves. & Bea. 183; Doe d. Richards v. Lewis,

11 C. B. 1035.

(1) See Bac. Abr. Fraud (C); Glaister v. Herver, 8 Ves. 200; Battersbee v. Farrington, 1 Swanst. 113; Holloway v. Millard, 1 Mod. 419; Johnson v. Legard, Turn. & Russ. 293; Tarleton v. Liddell, 20 L. J., Q. B. 507.

(m) See Collins v. Blantern, 2 Wils. 341.

(n) Bac. Read. Uses, 79; Bunn v. Guy, 4 East, 200; Irons v. Small

piece, 2 Barn. & Ald. 554; Pratt v. Barker, 4 Russ. 507. According to Blackstone, (vol. ii. p. 296,) a deed made without consideration is "as "it were of no effect, for it is con"strued to enure or to be effectual "only to the use of the grantor "himself." But this properly applies only to conveyances; and, even as to these, is too largely laid down: for it is clear, that a conveyance, if intended to be gratuitous, or by way of mere gift, will operate accordingly; and be effectual for the benefit of the grantee, except as far as it may interfere with the rights of creditors or bona fide purchasers. (See Irons v. Smallpiece, 2 Barn. & Ald. 554; Pratt v. Barker, 4 Russ. 507.)

may add here, that whenever it appears that a deed was obtained by fraud, force, or other foul practice, or it is proved to be an absolute forgery, such instrument is not only incapable of being enforced, but may be formally set aside by the judgment or decree of a court of judicature. This was antiently the province of the Court of Star Chamber, and it now belongs to the Court of Chancery (o). In reference, moreover, to this subject, it is to be observed, that a deed may not only be avoided, but discharged. For by a release a party may be discharged from the obligations even of a valid deed; but such release to be effectual must be itself by deed (p).

IV. As to the general rules which our law has established relative to the construction of deeds, they are principally as follows:

1. A deed is to be expounded according to the intention, where the intention is clear, rather than according to the precise words used (q). For "verba intentioni debent inservire ;" and "qui hæret in literâ, hæret in cortice." [Therefore by a grant of a remainder, a reversion may well pass, and è converso (r).] And upon a similar principle, it is a maxim that ["mala grammatica non vitiat chartam,” neither false English nor bad Latin will destroy a deed (s); which perhaps a classical critic may think to be no unnecessary caution.]

2. To explain an ambiguity in the language of a deed,

(0) 1 Shep. Touch. 70; 2 Bl. Com. 309.

(p) See West v. Blakeway, 2 M. & G. 729. It may, however, be right here to apprise the reader that in some cases where relief against a deed can be had in Chancery, recent enactments have allowed relief to be obtained also in a court of law; so that an action on such deed

may be barred by a release not by deed. See Index to vol. 111. in tit. "Equitable Pleading."

(q) Chapman v. Dalton, Plowd. 289; Hasker v. Sutton, 1 Bing. 500. (r) Hob. 27. And see 2 Saund. by Wms. 96 b, n. (1).

(s) Osborn's case, 10 Rep. 133; 2 Show. 334.

no evidence dehors the deed itself is admissible (t). For in such cases, the doubt arises merely from the failure of the parties to express their own meaning in proper terms; and if the law allowed the difficulty to be removed by extraneous evidence, it would render precision of less importance, and introduce inconvenient laxity into the structure of deeds in general (u). But here it is necessary to distinguish between patent and latent ambiguities (x). The first are, where the doubt arises upon the face of the instrument itself; and to these the rule applies: the second are, where the doubt is introduced by the existence of a fact not apparent on the face of the deed; and to these the rule has no application (y): the reason for which seems to be, that where the ambiguity itself is produced by circumstances extraneous to the deed, its explanation must of necessity be sought for through the same medium.

3. The construction of a deed should be made upon the entire instrument, and so as to give effect, as far as possible, to every word that it contains (z).

4. The construction should be favourable, and such that "res magis valeat quam pereat (a)." In connection appa

(t) Bac. Max. Reg. 23. The same general rule applies to written agreements, not amounting to deeds. (See Higgins v. Senior, 8 Mee. & W. 844.) It is to be observed, however, that the terms of a contract may, in some cases, be expounded by reference to usage. (Spicer v. Cooper, 1 Q. B. 424; Grant v. Maddox, 15 Mee. & W. 745.)

(u) Or (as expressed by Lord Bacon) it would "make all deeds "hollow, and subject to averments." (Bac. Max. Reg. 23.)

(x) As to patent and latent ambiguity, see 4 Cru. Dig. 425; 6 Cru. Dig. 165; Bac. Max. Reg. 23; Sanderson v. Piper, 5 Bing. N. C. 425 ; Doe d. Gains v. Rouse, 5 C. B. 422;

Queen v. Wooldale, 6 Q. B. 549.

(y) In the case of a devise (to which, as to all other written instruments, the rule applies), a "latent" ambiguity has been thus illustrated, that if a man devise to his son John, having two sons of that name, evidence will be admitted to show which son the testator meant. See 5 Rep. 68 b; 2 Atk. 372; 2 P. Wms. 135.

(z) 2 Bl. Com. 379.

(a) See Plowd. 156; Shep. Touch. 82, 83; 2 Bl. Com. 380; 2 Saund. by Wms. 96, n. (1); Roe v. Tranmar, Willes, 682; James v. Plant, in error, 4 Ad. & El. 766; Doe d. Lewis v. Davies, 2 Mee. & W. 516.

rently with which rule, it is also laid down, that [if the words will bear two senses, one agreeable to and another against law, that sense shall be preferred which is most agreeable thereto (b). As if tenant in tail lets a lease to have and to hold during life generally, it shall be construed to be a lease for his own life only, for that stands with the law; and not for the life of the lessee, which is beyond his power to grant.]

5. When any thing is granted, the means necessary for its enjoyment are also granted by implication; for it is a maxim that "cuicunque aliquid conceditur, conceditur et id sine quo res ipsa non esse potuit (c)." Thus, if a man conveys a piece of ground in the midst of his estate, a right of way to come to it, over the land not conveyed, will pass to the grantee.

6. [If there be two clauses so totally repugnant to each other that they cannot stand together, the first shall be received, and the latter rejected (d).]

7. Ambiguous words shall be taken most strongly against the grantor, and in favour of the grantee (e). "Verba fortius accipiuntur contra proferentem." [For the principle of self-preservation will make men sufficiently careful not to prejudice their own interest, by the too extensive meaning of their words; and hereby all manner of deceit in any grant is avoided, for men would always affect ambiguous and intricate expressions, if they were afterwards at liberty to put their own construction upon them.] But [in general, this rule, being a rule of some strictness

(b) Co. Litt. 42 a.

(c) See Co. Litt. 56 a; Shep. Touch. 89; Liford's case, 11 Rep. 52; 1 Saund. by Wms. 323 a, n. (6); Lord Darcey v. Askwith, Hob. 234; Earl of Cardigan v. Armitage, 2 Barn. & Cress. 211; Harris v. Ryding, 5 Mee. & W. 60; Hinchliffe v. Kinnoul, 5 Bing. N. C. 24.

(d) See Shep. Touch. 88; Hard. 91; Doe d. Leicester, 2 Taunt. 113;

Doe d. Spencer v. Pedley, 1 Mee. & W. 677. The rule, however, in such case, when arising on a devise, seems to be to consider the latter clause as the one to be followed. (See Co. Litt. 1126; Plowd. 541; Doe d. Spencer v. Pedley, ubi sup.)

(e) See Co. Litt. 36 a; Bac. Max. Reg. 3; 2 Bl. Com. 380; Doe v. Edwards, 1 Mee. & W. 556; Bullen v. Denning, 5 Barn. & Cress. 842.