Chester v Willan
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1845 |
| Date | 01 January 1845 |
| Court | Court of the King's Bench |
English Reports Citation: 85 E.R. 768
COURT OF KING'S BENCH
[96] 16. chester vers-us willan. Trin. 21 Car. II. Regis, Rot. 498. S. C. 2 Keb. 641. 1 Vent. 78. Sir T. Raym. 187. 1 Sid. 452. S. C. cited 14 Vin. 478. 18 Vin. 313. If there are three joint-tenants for life, and one of them by his deed grants all his right to the lands in jointure to another of the joint-tenants, the deed is sufficient to pass the estate of him who made the deed to the other. The legal operation of the word " grant." Action upon the case upon a special issue directed out of Chancery, arid on a special verdict found at the Assizes, the case was this. Three jointenants for life, and one of them seals and delivers a deed to another of the jointenants, in which it ia expressed, that he "granted, bargained, sold, assigned, set-over, and confirmed" to the other all the right, estate, title, interest, claim and demand of the grantor, of and to the lands holden in jointure. And the question upon this special verdict was, whether this deed was sufficient to pass the part or share of the jointenant who made the deed, to the other to whom the deed was made or not? And it was adjudged clearly without argument that it was. And Jones for the defendant would have spoken to it, but the Court interrupted him, and said it was so clear, that there could be no question about it; and therefore judgment was given for the plaintiff who claimed under the deed. Note; The word " grant" is of general extent, and may amount to a grant, feoff-ment, gift, lease, release, confirmation, or surrender. Litt. s. 531. Co. Litt. 301 b. 302 a.(l) (1) And it is in the election of the party to use it to whichever of these purposes he pleases. Co. Litt. 301 b. The chief intent of the parties is to pass the estate, and Z WHS. lAPWD. H. PASCH. 22 CAR. II. REGIS 769 Note also; thafc it was said by the Chief Justice, that though the jury have found, the method of doing it ought to be subservient to that end : and though the intent of the grantor is to be regarded as to what estate (a) is to pass, and to whom, yet it is not to be regarded as to the manner of passing it, for of that he is supposed to be ignorant. And it is an established rule, that a deed shall never be laid aside as void, if by any construction it can be made good. Hob. 277, Earl of Glanrickard's case. Shop. Touchstone, 82, 83. Therefore, where a man seised in fee of a rent granted it by deed to one who was his kinsman, and there was an attornment to the grant, but it was made by a person who was not the real tenant of the land, and therefore void; though the intent appeared that the deed should operate as a grant at common law with an attornment, yet since it could not pass that way, it was adjudged that the grant being made to a relation should operate as a covenant to stand seised. Sanders v. Savile, cited in 3 Lev, 372. So where a man by deed gives and grants land to another, and a letter of attorney to make livery is indorsed upon the deed, but no livery happens to be made; yet if this grant be made to a relation, it shall operate as a covenant to s/ md seised, though the letter of attorney, indorsed on the deed for the making of livery, shews the plain intent of the deed and of the parties to have been, that the land should pass by feoffment and livery. 3 Lev. 372, Osrnan v. Sheaf. S. C. Garth. 307. And where a father seised in fee made a deed to his daughter enrolled within six months, by which, in consideration of natural love, augmentation of her portion, and the preferment of her in marriage, and other good and valuable considerations, he gave, granted, bargained, and sold, aliened, enfeoffed and confirmed unto the daughter and her heirs the said lands, and there was a covenant that after due execution, &c, she should quietly enjoy, and also a clause of warranty, but there was no money paid, or any other consideration but what was expressed in the deed ; it was held that though the deed could not enure as a bargain and sale, no money having passed between them, yet it should operate a* a covenant to stand seised. 1 Vent. 137, Crossing v. Scudamare. And where a father seised in fee of a rent by indenture, in consideration of affection, and 51. paid, gave, granted, assigned, and transferred the rent to his son arid his heirs; it was held, that there being two considerations expressed, affection and money, the deed might operate as a bargain and aale if enrolled, or as a covenant to stand seised, 3 Lev. 291, Baker v. Lade. S. C. 4 Mod. 150. Sty. 204, Wats v. Dix. 7 Rep. 40 b. Bedell's ca.se. 2 Rol. Abr. 786 (0.), pi. 1, Tebbe v. Popplethwayte. So where landa are granted to a man and his heirs with a general warranty against all persons whatsoever, and no livery, or a void livery, is made; still if this grant be made to a relation, it shall operate as a covenant to stand seised, though the inserting of the warranty shews the intent to have been, that the lands should pass by way of feoffment, in which case the feoffees, if impleaded, might vouch upon the warranty : whereas, it operating by way of use, and a covenant to stand seised, the grantee is in the post, and cannot vouch. 1 P. Will. 163, Tomiinso-n v. Dighton, arg. And where G. S. being seised in fee, in consideration of a marriage to be had between him and A. S., by indenture between him of the one part, arid the said A. S. and W. S. of the other part, did give, grant, enfeoff, aliene, and confirm the lands to A. S. and...
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