
    MAY TERM, 1769.
    Lib. D. D. No. 16. fol. 461.
    Denton Hammond’s Lessee against John Brice.
    EJECTMENT for three tracts of land, called Motherly Care, The Cool Springs, and Howard’s Addition.
    
    At the trial of this cause at the Anne Arundel Assises, held in September, 1768, the Jury found, by their special verdict, that Vachel Denton was seised of an estate for life, and Anne his wife of an estate in fee-simple, in the two tracts Motherly Care, and The Cool Springs, and that he was also seised of the tract Howard’s Addition, in fee, in right of his wife. That they being so seised of the three tracts of land, Vachel Denton, on the 18th of June, 1747, executed a deed of indenture to Alexander Hamilton, being a deed of lease, or bargain and sale for one year of the said land, to the intent that the said Alexander Hamilton might be put in possession, in order to take a grant, or release of the reversion, “ to such uses, intents and purposes, “ as shall be thereby mentioned.” That on the 24th of June, 1747, the said Denton and wife, executed an indenture to the said Alexander Hamilton, which deed set forth, “ that “ the said Vachel and Anne\ in consideration of the several “ sums of ten shillings, did grant, bargain, sell, alien re- “ lease, enfeoff and confirm unto the said Alexander Ha~ “ milton, (in his actual possession then being, by virtue of <c a bargain and sale thereof, to him made by the said “ Vachel Denton, and by force of the statute for transfer- “ ring uses info possession,) his heirs and assigns, the said “ tracts of land, &c. to have and to hold, &c. to and for the “ use, intent and purpose following, to wit: that the said “ Alexander Hamilton shall, by deeds of lease and release, “ or by such other sufficient conveyance, well and suffi- “ ciently convey the premises unto the said Vachel Denton, 
      u and Anne his wife, for and during their respective natural 44 lives, and after their decease; remainder to Denton Ham-st mond,, and to the heirs of the body of the said Denton, 44 remainder to Rezin Hammond, and to his heirs, and to and 44 for no other use, intent or purpose whatsoever.” That by virtue of the said deeds, Alexander Hamilton was seised of the said several tracts of land, and being so sejsed, on the 25th of June, 1747, executed a deed to Vachel Denton, being a lease, or bargain and sale for one year, “ to enable 44 Vachel Denton and his wife, to take a grant to them and 64 their heirs, in such manner and under such restrictions, 44 and to such uses, intents and purposes, as shall be there-44 by declared.” That on the 26th of June, 1747, the said Alexander Hamilton did execute another indenture to said DentonwA wife,whichindenture,reciting the previous deeds of lease and release, set forth, that it was for the true and perfect fulfilling the intent, and purpose, and meanings of the afore recited deeds of lease and release, to Alexander Hamilton, and did grant, bargain, sell, release, &c. the said lands, &c.44 unto the said Vachel Denton, and Amiehis wife, 44 and their heirs and assigns, to have and to hold, &c. unto 44 the said Vachel Denton, and Anne his wife, for and during 44 their respective natural lives, and after their decease, re-44 mainder to the aforesaid Denton Hammond, and to the 44 heirs of his body; remainder to the said Rezin Hammond, 44 and to his heirs forever, and to and for no other use, in-44 tent or purpose whatsoever.”
    The Jury also found, and set forth at full length in their verdict, the act of Assembly of 1715, c. 47. entitled 44 an 44 act for quieting possessions, enrolling conveyances, and 44 securing the estates of purchasers.” Also the act of 1752, c. 8. a supplementary act to that of 1715. And also, that formerly, and before any act of Assembly was made in this Province, enabling Provincial magistrates, or Justices of the Peace, to take the acknowledgment of feme coverts, lands were sometimes conveyed by fine, passed in the Provincial Court of this Province, or in the County Courts, but that since the said acts, the method of conveyanee by fine hath been disused, and the usual mode hath been by deed executed out of Court, and private examinations had before one or more magistrates, according to the directions of the particular acts, enabling magistrates to take such examinations. That the said Vachel, and Anne his wife, after the execution of the said deeds, died without issue. That yohn Brice, the father of the defendant, is heir at law of Ann Denton, and conveyed the land in question to the defendant. The plaintiff claims title under the deeds of lease and release.
    yenings, for the plaintiff.
    We claim in virtue of the deeds, the estate for life being spent and the remainder in tail vested in the lessor of the plaintiff.
    Were we to consider the intent of the parties, and maké it our guide, the case could not admit of any doubt. The whole scope of these deeds, and the plain and express intent of them, was to give an estate for life to Vachel Den-ton, and Anne his wife, remainder in tail to Denton Hammond, remainder in fee to JRezin Hammond. The lease from Vachel Denton to Alexander Hamilton, mentions that the intent of the lease is to put him in possession, so as to enable him to take a release to such uses, intents and purposes, as shall be thereby mentioned. It seems, then, the uses which were to be mentioned in the release, were those intended by the parties, and were the sole view they had in making.this conveyance. In this release they recite their intention of settling and disposing of the lands, for the intent and purpose thereafter expressed and declared. Again they say to hold the lands to and for the use, intent and purpose folloxving, and the uses are then expressed very fully and particularly. This deed is therefore to be considered as disclosing and particularizing the intentions of the parties, and were, together with those to be made in consequence of it, to operate as one general settlement, to effectuate the purposes specified. The lease from Alexan-. 
      
      der Hamilton, mentions the intent of it was to put them in possession, so as to take a release of the reversion and inheritance, to them and their heirs, in such manner, and to suck uses, &c. as should be thereby declared. What then were these uses ? This release recites the former deeds of lease and release, and the particular uses therein mentioned, and is said to be made for fulfilling- the intent of the said deeds of lease and release, and every clause, article and covenant therein.
    The Court then agreeably to principles of natural justice, where there are no particular legal rules to be observed, would determine it in our favour ; therefore, it is to be considered if there are any such rules.
    Before I consider what objections may be made, I will premise some rules for the exposition of these deeds, and I believe I may allege it to be a general rule, that the Court will in all cases support, if possible, the intention of the parties, unless it be repugnant to the general policy of the law. But where the conveyance is byway of use, as those deeds are, this rule is more particularly attended to.
    It is objected that it is a conveyance at common law, and therefore not entitled to the same equitable construction, as a conveyance under the statute of uses,
    This objection admits the reasoning, that conveyances under the statute should be construed beneficially, according to the party’s intention, but denies its application in the present instance, as it is contended the present conveyance is at common law. This matter is therefore to be considered, and we shall find that this mode of conveyance may be either at the common law or under the statute, and therefore to know whether the deeds under consideration are to be looked on as executed either one way or the other, we must seek for the facts which make the distinguishing difference, and when found, they will enable us to determine this matter without difficulty.
    At common law the usual mode of conveyance was by feoffment, which was a solemn delivery of the possession of the land, and the ceremony used in the act of delivery, was called livery of seisin ; by this act of notoriety before the tenants of the same Manor, notice was given of the translation of the feud, and this public investiture was presented at the next Court. By this method, Lords knew on. whom to avow for their services, and there being a visible tenant of the freehold, strangers were not perplexed to know against whom to bring suits. As this mode of transferring property was instituted to notify who was the freeholder, it is easily perceived that the feoffment could not be made to commence at a future day; for if after this ceremony any other resided in the possession, this institution would rather create perplexity than avoid uncertainty, for the possessor would be presumed to be the freeholder, and a stranger be induced to bring hisprcecipe against him. 2 Bac. Abr. 486. 489.
    Where therefore another resided in the possession, and the person in reversion transferred his estate by a grant of the reversion to a third person, or released to particular tenants, there were frequent questions about making .livery of seisin, which were troublesome, and as necessity first gave rise to this conveyance, it hinted a more facile way of conveying property than by feoffment, and suggested the method of making a lease, to put the party in possession, and then to release all the estate and interest to the lessee. This method was perhaps but seldom used before the statute, but at that time an actual entry in virtue of the lease was necessary, otherwise the release could not operate, for till an entry the lessee had no possession for the release to work on; but he only had, as my Lord Coke says, an interesse termini. Co. Litt. 2 70. a. This then is the distin- . guishing difference to denote the lease and release to be a conveyance at common law, viz. the actual entry in virtue of the lease j but no such fact is found in the verdict, and it is not to be presumed.
    When the statute of uses was enacted, the possession might be acquired without any entry, for that statute executes the use to the possession, and therefore, whoever has the use, shall be adjudged in the possession under the statute. It cannot' be denied here, but that the consideration mentioned in the deed, will raise a use to Vachel Denton and wife; they are then m possession under the statute. See 2 Vent. 35. 4 Bac. Abr. 2J7.
    
    . This executing the use to the possession by the statute, was found to be a much readier way of gaining the possession, than by an actual entry, and therefore since the statute H. VIII. the former method by actual entry has been disused, and there is a clause introduced in the lease, stating that it is made to put the party in possession, by-virtue of the statute of uses. These points are well explained in 2 Mod. 249. better reported than in any other book. See 4 Bac. 276.
    It is then obvious that this is either a conveyance under the statute of uses, or no conveyance at all; for it cannot operate at common law, the essential circumstance to give it operation not being found, and to construe it a void deed, is against all rules of law; for wherever a deed can have operation in any manner whatever, it shall be supported.
    The first point then is, that this being a conveyance under the statute of uses, it is to be expounded liberallyJ; according to the party’s intention. Were we in this instance to adopt for the rule of construction, that where the intent is apparent, such construction shall be made as may support that intent, the question would be easy j for from the whole of these deeds the intent is manifest to give an estate for life to Vachel Denton and wife, remainder in tail to Denton, remainder in fee to Rezin Hammond. The intent then being apparent, and this being a conveyance under the statute of uses, it is to be construed so as to effectuate the intention. Rollex. 525, 526, 527. 33, 34. 36, 37. 1 Vent. 137. 141. 372, 373. Gilb. Uses, 235, 236. Moor,. 722, 723. Carth. 343. 2 Lev. 78. 225, 226, 227. Co. Litt. 12. a. 13. b. Hob. 277. 2 Bac. Abr. 660. 1 Atk. 8.
    The second objection is, that it is a rule of law, that ■wherever the habendum is repugnant to the premises, it shall be void.
    
      This rule must be grounded on some reason. The rea» son is that the habendum being uncertain, the premises shall stand, an estate passing by them, and there being nothing more certain contained in the deed to guide the " Court. But where from other expressions in the deed, explanatory of the premises, or referring to something to shew the clear intent of making this deed, it clearly appears that the parties intended to pass an estate according to the habendum., and not according to the premises, the habendum shall controul and explain the premises. For in looking through the books, we shall find that deeds are construed frequently according to the estate in the habendum, though repugnant to the premises, and I apprehend it to be under the above distinction.
    An habendum shall be void unless in special cases. Perkins, sect. 161. This shews the rule not to be general; but where the deed especially denotes the party’s intent, there the habendum (unless incompatible with those rules introduced for the public good, so as not to create a perpetuity _) shall stand, though repugnant to the premises.
    An implied estate in the premises, shall be controuled by an express estate in the habendum. 2 Co. SS. Buckler's case. This is under the above rule, for an estate being generally given in the premises by implication of law, it shall be an estate for life ; an estate of inheritance it cannot be for want of proper words of limitation, and the next greatest estate against the grantor, is an estate for life ; but this being only what the law presumes, the force of the presumption is taken off by the express words.
    A grant to a man and his heirs of a rent, to hold to him and his heirs during a stranger’s life is good. 1 Brozunh 169. Wilkins v. Daure. The reason of this is, that the grantee might die during the stranger’s life, and then these words prevent the occupancy. It is so explained in 2 Bac. . Abr, 497.
    If lands are given to one in the premises, habendum to him and his wife, the daughter of the donor in frank mar-«age, it is good. 2 Roll. Abr. 67. pi. 17. Here are expíanatory words to shew the gift was to take in frank marriage, which could not be if the wife did not take.
    In Plowden, 161. the case was where the reversion of land was granted in the premises, habendum the lands themselves from Michaelmas, it was insisted there was a repugnancy between the grant of the reversion, and of the lands. T. Jones, 4. 106.
    By the third resolution in Baldwin’s case, (2 Co. 23.) it appears that the reason of making the habendum void, is for uncertainty, and Coke in his note remarks, that if livery of seisin had been made, it would, not have availed, for it was a lease for years at the beginning; that is, it was apparently the intent of the parties that it should be so, by their using the words grant, demise, &c. Further, the uncertainty is, that the reason why the habendum is void, appears from the other distinction; for by the fourth resolution, the habendum shall stand, though contrary to the premises, if to the perfection of the estate in the premises, a ceremony is requisite, and not to the one in the habendum; from, this it would seem, that as the party knew the deed could sot operate without a final ceremony, to convey an estate according to the premises, and that it would to convey one according to the habendum, that by omitting this ceremony, it was an indication of the party’s intent to pass the estate the other way, consequently, it is a circumstance which removes the doubt subsisting in the other instance. Pin. tit. Grant, 154. where this reason is assigned.
    A deed to one, habendum to several, is void on account ,af the uncertainty whó should take first in remainder. Hob. 313. But where the several persons are mentioned successively, that being certain, it is good. Cro. Jac. 564. It is a general rule, that the party’s intent should be supported. Hob. 277. 2 Bac. Abr. 660.
    From these cases it appears, that the rule contended for does not hold unless there is an absolute uncertainty; but where there are additional circumstances to denote tire party’s intent that the habendum shall stand, though repugnant to the premises, unless the estate limited by the habendum is contrary to law, and could in no case prevail, which js not the case here. There are many additional circumstances to denote the party’s intent, and to remove the uncertainty; and if we can find on the whole, that the words were intended to be qualified and restrained, the Court will so adjudge.
    This deed of lease and release from Alex. Hamilton make but one conveyance. If we view it in the lease, it is said to be made to enable Vachel Denton and wife to take a grant to them and their heirs, in such manner, and under such restrictions, and to such uses, intents and fur« poses, as shall be thereby declared. In the deed these uses -are particularly mentioned, and the words superadded, to no other use, intent or purpose whatsoever. Again, the deed of Alexander Hamilton refers to the other, and is governed by it. It recites that deed, the purpose for which it was made. This reference, then is to be regarded; and if it is uncertain, even on this deed, what estate was intended to be conveyed, it shall be reduced to a certainty by reference. ' Certum est quod certum reddi potest. 2 Baa. Abr. 663, 664. Co. Lift. 45. b. 1 Atk. 8.
    This deed is to be considered as a precedent, and the ill consequences of vitiating a deed for so small an error-ought to be considered in this country, where magistrates and country gentlemen so frequently assist their poorer neighbours in drawing deeds.
    Third point. These deeds are to be considered as sepa rate instruments making one settlement or conveyance, and in the construction of them a view is to be taken of the whole. It would be a most absurd construction to separate such deeds, and consider them as quite distinct from others connected with them. 2 Bac. Abr. 496. Iiob 275. Grounds and Rudiments, 23. This part of the deed refemng to the other, must, under such construction, be rejected as idle, and have no force. So must the covenan t of Hamilton never be complied with, which is contrary to y very rule of construction, which should give operation to all parts of a deed. 1 Burr. 286. 2 Burr. 709, 710, 71 i. 713.
    The deed of lease is made only by Vachel Denton. The deed from Denton and wife has the words grant, bargain, sell, alien, release, enfeoff, and confirm; also the words reversion, reversions, remainder and remainders, &c. It is then to be considered whether there are any particular cir« eumstances necessary to constitute a bargain and sale, which are not to be found in this deed. A bargain and sale is a contract in consideration of money passing an estate in lands by deed indented and enrolled. 1 Bac. Abr. 273. 2 Inst. 672. This conveyance is answerable to every part of this definition. At common law, if a man bought lands and paid money for them, yet no property in the lands was transferred, because no solemnity was used to denote the alteration. Gilb. Uses, 2. But in equity a use was transferred ; and as equity regarded the intention of the parties, a use might be raised without any writing. Gilb. Uses, 87. Then came the statute of uses, which transferred the possession to the use, so that, whenever a use was raised at common law, the statute transferred the possession to it; and as a use might be raised by words, the statute transferring the possession had this 111 effect, that lands might pass by bare words only, which was held to be inconvenient. And it was to prevent this Inconvenience, that the statute 27 Hen. VIII. c. 16. of enrolments, was made. Gilb. 88. 2 Inst. 672. Before the .statute, the consideration of this deed would have raised a use; if so, that is all that is requisite. 2 Inst. 672. Moor, 378. 1 Bac. Abr. 277.
    Where a deed can, in any manner, operate, the Court will support it. Cro. Jac. 127. pi. 17. 564. Co. Litt. 183. b. 2 Bac. Abr. 666. Co. Litt. 147. 2 Bac. Abr. 661. Garth. 524. Ilaxvk. Abr. Co. Litt. 83. or 183, b. Where a deed may operate several ways, the party has an election. 2 Co. 24. Baldwin's case. 1 Vent. 137. 1 Mod. ITS. Dyer, 319. b. pi. 16. Cro. JSliz. 163. pi. 3. 2 Co. 35. 
      Moor, 496. 1 Bac. Abr. 276. Vin. tit. Deeds, 405. pi. 2. 3 Leon. 16. pi. 39.
    If, then, this deed can have any operation, the Court will support it, and it may operate as a bargain and sale-No particular words are necessary to make a bargain and sale. 4Leon. 110. 2 Inst. 672. Gilb. Uses, 88. 287. 8 Rep. 94. Here there is a plain intent to pass the land. If the conveyance then can in any manner operate to effectuate this intent, the law will support it. There are the express words bargain and sell, which denote the party’s intent. There is nothing incident to the making of a bargain and sale, but what is to be found in this conveyance; and if the Court will turn a deed to make it operate one way, though it is apparent the intent of the parties was that it should operate another, yet that it should operate after some manner, is the principal intention; a fortiori will it be so here, where the deed may operate in the same manner the party intended it, by making use of the terms bargain and sell. Hawk. Abr. Co. Lift. 83. Suppose the possession to have been transferred by the lease from V. Den-ton, yet the release will operate as a bargain and sale of the reversion, and a reversion may be bargained and sold. Goldb. 272. pi. 381. Faugh. 51. Lilly’s Com. 17. 273. 2-Inst. 672. 2 Cro. 210. Ploxv. 433. Broxvnl. 298. Gilb. Uses, 286. Cro. Jac. 604. 8 Co. 172.
    Further: If we consider this deed under the act of Assembly, take all the words of it collectively, and give the. act a construction agreeable to its spirit and meaning, even if it was to be considered as a grant or release of the reversion, it may be supported, in construing acts, we are to consider what was the mischief before the statute, and what the remedy intended. 5 Bac. Abr. 647. The mischief before this act was, that women could not convey their lands but by fine, which was a tedious and expensive process, and therefore the Legislature had in view to empower them to do it by deed, under the restrictions mentioned in the act. The particular deed made' use of for this purpose was not so much the object in contemplation, as the enabling them to do it; for the reason of enabling them to do it by one mode of conveyance would apply as, forcibly to enable them to do it by another. It is plain, from the meaning of this act, that the Legislature intended, not to deprive femes coverts from making conveyances, but to enable them to do it under particular restrictions; and that by using the terms bargainor, grantor, or donor, they did not mean to restrict them to the conveyance of bargain and sale, for those words then must have been nonsensical; but all that was meant was, where a feme covert granted, sold, or gave lands, whatever conveyance passed the lands in consequence of such contract, it should be enrolled. Acts of Assembly should have a reasonable construction; but what reason can be assigned why the Legislature should give this privilege by one kind of conveyance more than another. Would one operate more to the prejudice of the feme than another? They would have the same effect; therefore the Legislature was willing she should .grant or give, but then under the regulations mentioned.
    For rules of construction of statutes, see 5 Bac. Abr. 643. One branch of a statute may be expounded by another, where the words are obscure. 5 Bac. Abr. 645. An act ought to be so construed, that no word may be insignificant. Id. Where the proviso is contrary to the purview, the proviso shall stand, it speaking the intention of the Legislatures. Fitzg. 195. 5 Bac. Abr. 646. Here the proviso mentions grantor, which shews was meant, all things that operated by way of grant. An act lately made shall be taken within the equity of one made long since. 4 Rep, 4. Statutes which have relation to the same subject must be taken as one system, and construed consistently. 5 Bac. Abr. 646. A statute ought t,o be construed so as best to answer the intent of the makers; for qui hccret in litera hceret in cortice. 5 Bac. Abr. 647. What is within the intent is within the act. 5 Bac. Abr. 648. How statutes shall be expounded by equity. 5 Bac. 649, One half of the conveyances in the country are made by femes coverts in this manner, and the deeds m common recoveries are generally drawn so.
    
      Johnson and Goldsborough, for the defendant,
    Contended, that the deeds of lease and release from Hamilton to Denton and wife, were conveyances at common law, and of course must be construed strictly according to the rules of law which apply to common law conveyances.
    That it was a rule, where the habendum is repugnant to the premises, it shall be void. That the habendum cannot lessen, but may enlarge the estate in the premises. 2 Bl. 298. Dy. 155. That the deed of release cannot operate as a bargain and sale. That it was the intent of the parties, that the estate should pass by lease and release; and that, if it operates to pass any estate by way of lease and release, though less than was intended, it shall not operate in a mariner different from what the parties intended. That where an act of Parliament is in the affirmative, it implies a negative to prevent any further alteration of the common law than is affirmed by the words of the statute. That to alter or innovate upon the settled rules of law for the determination of landed property, is a most dangerous removal of land-marks.
    Jenings, in reply.
    The objection to the deeds from Vachel Denton and wife is, that they cannot operate as a bargain and sale as to Mrs. Denton, and she being restricted by the act of Assembly to that species of conveyance, it must operate in that manner, or it can have no operation at all.
    This objection does not arise from any formality in the conveyance, for it has every requisite to constitute a bargain and sale, and is drawn agreeably to the form of a bargain and sale in every respect, and there is no doubt but that, if it had stood alone, without any release, it would have been good..
   But the gentlemen say, it was the intent of the parties that the estate should move from them by lease and release, and the rule is, that if it can have a partial operation, that is, to convey some estate from the parties, though in a less manner than they intended, it shall not operate in any other manner; and for this they rely on Sir Edw. Clere’s case, 6 Co. 17.

We answer — There is no such reasoning to be drawn, from this case j but every thing to be collected from it is, that where a man has an interest as well as an authority, and does an act without reciting his authority, it shall be supposed he did it according to his intent; and this is the principle on which the case was determined, and not the one mentioned. Where a man made a feoffment to the Use of his last will, he had an authority under the feoffment to appoint uses, or might dispose of the land as owner; and if he devised without recital, an authority would pass by his interest. 1 Bac, Abr. 202. in notes. This case only applies to the case of an authority and interest; but the gentlemen have not mentioned the true reason, but have assigned one they thought most beneficial. The reason they allege is not a just one, and cannot be found in any of the books. If their reason is a good one, the doctrine that a grant shall operate most strongly against the grantor, at once falls to the ground. But if I was to admit the case to be law, on the principles suggested, it applies against them. They say, where an estate moves from the parties in some degree, though not so fully, it shall not operate differently. The ground of the doctrine is that something, as they say, must move from the parties. Who are the parties? Vachel Denton and wife. Something then must move from them. But here their argument is inconsistent; for they say that nothing moves from the wife. In the case of Sir Edward Clere, cited, an estate moved from him, but there was no person from whom nothing moved by the construction there adopted. By this construction they would defeat half the deed, and give it no operation, and this is directly repugnant to every principle of law, which is clear that no part of a deed shall be construed void, if it may any way take effect. 2 Bac. Abr. 660. As where there is a deed from two, when one of them has nothing, it shall operate as a grant from one and a confirmation from the other. 2 Bac. Abr. 661. By our construction, the whole deed takes effect between the parties, and their argument is inconsistent with their principles.

2. They have been guilty of this fallacy throughout. They say nothing passes from Mrs. Denton, and yet to ground their reasoning they suppose something passed. They say the deed takes éffect from the parties immediately, and where it will pass an interest immediately, and requires a further ceremony to give it operation, it shall operate immediately. To support this they must shew that something passed immediately from both.

The Provincial Court gave judgment for the plaintiff.  