
    Jackson, ex dem. Bain and Van Slyck, against Pulver and another.
    Where A. ate-Son, by wiping, surrendered the pvemisesto the lessor m an ac-lion of ejectment, and all ri°"ht See. to have’ and to sordt°ande 'his sOns forever" f™se*foui<]Ube accepted by the lessor, as a full discharge for all of1 a’. bya ithe theS01'ejectme!it', ant''admitting the full discharge of claim mentioned in the proviso, to amount to a suit ficient consideration, and that the deed contained words sufficient to pass a fee, yet it was void, and no bar to A.’s title, unless the lessors showed a valid discharge, which could not be by parol, or by mere implication, arising from the fact of possession of the deed.
    THIS was an action of ejectment, for land in Kinder-hook. The cause was tried at the last Columbia circuit, before Mr. Justice Thompson.
    
    The plaintiff gave iii evidence a deed from Dierch Qardenier to Peter W. Van Burén, dated November 8, # 7 7 1779 ; a deed for the same premises from Van Burén to Cornelius Van Schaack, dated Marche, 1782; a deed from Van Schaack to Tobias Van Slyck, dated July 20, 1784 ; and a deed from the latter to Samuel and Dierck ^an Slyck, dated August 26, 1784; and a deed from the latter to Samuel Van Slyck the lessor, dated May 1, J J 1786. 1 he plaintiff also proved, that the premises m question were included within the boundaries of the land set forth in the deeds ; that Pulver, one of the defendants) and Samuel Van Slyck, one of the lessors, were tenants in common, and made a partition deed between them, 1 7 dated February 25, 1801, in which Pulver aclcnowledg- . . ed himselt a tenant in common or the premises in ques"iion, and released and conveyed them to the said lessor.
    The defendant offered in evidence a deed or instrument, as follows:
    “ Supreme Court : James Jackson, ex dem. Jacobus Van Deuryen and. others, against John Stiles and Samuel Van Slyck, tenant. I, Samuel Van Slyck, tenant in possession of the premises claimed by the lessors of the plaintiff in the action of ejectment, being two lots of land lying north of the road leading from Kinderhook landing to the towns of Chatham and Canaan, and west of a road leading from the said road to the Fish Lake, as the said lots have lately been, and now are, in my possession, do hereby surrender to the lessors of the plaintiff the possession of the above described premises, and all my right and title to the same. To have and to hold to them and "to their heirs and assigns for ever. As witness my hand and seal, this twenty-third day of November, 1805.
    (Signed) (i Samuel Van Slyck. (l. s.)
    “ Provided nevertheless, that the above release is accepted by the lessors of the plaintiff, as a full discharge of their claim on me for all lands claimed by them wider the said ejectment, except a small piece of land lying north-east of the house of Moses Gillet, about which there has lately been a controversy between the said Moses Gillet and me, which exception last mentioned is not to affect my right to the premises last mentioned.
    (Signed) “ Samuel Van Slyck.” (l. s.)
    This evidence was objected to, and overruled by the judge; and a verdict was taken for the plaintiff, subject to the opinion of the court on the legal effect of the deed so offered in evidence.
    
      Foot and Van Vechten, for the plaintiff.
    The lessors made out their title by deed, and the only question is, whether the defendants have shown any thing to maintain-their right of possession. The instrument or deed offered in evidence by them, cannot be classed among any of the common law conveyances. There are no granting words in the instrument. It is nothing more than a surrender of the possession. Surrender is not a word of common law conveyance. It is not a bargain and sale. There must be a valuable consideration to give effect to a bargain and sale, under the statute of uses. It may be said, perhaps, that the proviso contains a sufficient consideration. But the proviso constitutes a separate and distinct contract; and if the surrender or conveyance was void, it could not be made good by a subsequent contract. A proviso cannot operate as a' consideration; but, in fact, it contains no consideration to support a conveyance.
    
      Van Burén, contra.
    The only question is, whether the deed offered by the defendants is sufficient to prevent the plaintiff’s recovery. Courts are disposed to enforce contracts fairly made, so as to prevent, rather than promote litigation. The defendants are not entitled to favour, when they seek to avoid a possession fairly obtained by their own deed, on a mere technical objection.
    1. There is no established formula of words, which -are essential to the transfer of property, or a valid conveyance. It is enough, if it appears on the face of the deed that it was the intention of the parties to transfer the property. Deeds are to be construed,, as much as possible, according to the intention of the parties, without regard to the precise form of words. Thus t^ie Words “limit and appoint” have been held sufficient t0 Pass a ^ee* l*1 the case of Jackson, ex dem. Hudson and Chapman, v. Alexander and others,
      
       this court held that the words “ make over and grant,” were operative to convey land. Yet those are not words of common law conveyance.
    
      3. In the case of Jackson, ex dcm. Hudson and Chapman, v. Alexander and others, the subject of consideration in a deed was fully discussed; and it was there held that the words value received imported a sufficient consideration. A mere nominal consideration is sufficient to give validity to a deed. In Stephens v. Bateman, the court of chancery, in England, refused to set aside á deed entered into for the sake of settling a controversy, merely because the consideration was insufficient. The Consideration need not be set forth in the deed; it may be averred and proved by parol, at the trial.
    Again, here was a release or discontinuance of all claim, which is an adequate consideration. It was, in fact, a mutual release, which implies a sufficient consideration.
    In the construction of a deed, the whole instrument ■is to be taken together. The habendum will serve to explain, enlarge or abridge the premises. In Goodtitle v. Bailey,
      
       Lord Mansfield declared, “ that the rules established for the construction of deeds were founded in law, reason, and common sense j that deeds shall operate according to the intention of the parties, if by law they may; and if they cannot operate in one form, they shall operate in that which, by law, will effectuate the intention.” In that case, a release was construed to operate as a grant of the reversion, so as to give effect to the intention of the parties.
    
    Again, if this was a deed of surrender, it required no consideration. It is good between the parties, though it may be void in regard to third persons. It must operate, then, as a good surrender against the lessor, who is estopped, by the deed, to say it is not a surrender.
    
      
      
         2 Black. Com. 326. 1 Shep, Touch. 300. 2 Shep. Touch. 5l3. 2 Black. Com. 338. 1 Bac. Ab. 463. 469 Cru. Dig. tit. 32. ch. 11. sect. 3. 3 Johns. Rep. 484 Willes's Rep. 677. Cro. Eliz. 394. 1 Vent. 137.
    
    
      
       1 Co. 176.
    
    
      
       2 Shep. Touch. 210.
    
    
      
      
         to Mod. 40, 41, 47. 3 Atk. 135. 1 Massa. Rep. 219. 3 East 115. allen, 41 1 Co. Litt. 70. 5 Term Rep. 129, 130.
    
    
      
       3 Johns. 484.
    
    
      
       1 Bro. Ch. Cas. 22.
    
    
      
      
        Cruise's Dig. tit. 32. ch. 22. sect. 43—55.
      
    
    
      
      
         Cowp. 897.
    
    
      
      
         Cruise’s Dig. tit. 32. ch. 22. sect. 20, 21.
    
    
      
      
        Co. Litt. 338. b.
    
   Per Curiam.

The single question in this case, is, as to the validity of the deed offered by the defendants. If that be of no force, the lessors of the plaintiff must recover. The deed does not contain, upon the face of it, any evidence of a consideration, and none wag 0g-ered jn proof. But as it was executed upon the. condition of being accepted “ as a-full discharge of the claim on the grantor for lands,” &c. the discharge of the claim may, perhaps, be considered as the consideration. There is, however, an insurmountable difficulty in this view of the question. There was no evidence on the part of the defendants, that the grantees had discharged^ or offered a discharge of such claim. No valid discharge of a valid claim to lands can be made by paroly or by mere implication arising from the fact of the possession of the deed. The deed, therefore, is of no force, as a bar to the plaintiff’s title, even if it should be admitted that the granting words were sufficient to convey a fee.

Judgment for the plaintiff.  