the act and words of the feoffor, &c. it shall be taken To make an exception good, it must be, 1. By apt words. 2. It must be of part of the thing granted, and not of some other thing. 3. It must be of part of the thing only, and not of all, the greater part, or the effect of the thing granted. 4. It must be of such a thing as is severable from the thing which is granted, and not of an inseparable incident*. 5. It must be of such a thing as properly belongs to him who excepts. 6. It must be of a particular thing out of a general, and not of a particular thing out of a particular thing, or of a part of a certainty. And 7. It must be certainly described and set downa. As for examples: If a man grant all his lands in Essex, saving or except (1) his lands in Dale, or all his lands in Dale, excepting one house, or one acre in certain; or one house, excepting one chamber in certain; these and such like exceptions are good. And if one grant a manor, excepting one tenement (parcel of the manor), or excepting the services of I. S. (he holding of the manor), or excepting one close, or excepting one acre, or excepting the advow (1) See distinction between a saving and an exception, in T. Raym. 359; Plowd. 361. An exception out of an exception, or a saving out of a saving, is good enough, and makes the thing as if it had never been excepted. Leigh v. Shaw, Cro. Eliz. 372. DEEDS. DEEDS. son appendant, or excepting the woods, or excepting twenty acres of wood, or excepting all the gross trees; these are good exceptions. And if one grant a messuage and houses thereunto belonging, excepting the barn, or excepting the dove-house; it seems that this is a good exception, for they may pass by the grant of a messuage, &c. So if there be a grant of land, excepting the trees thereupon; or of a wood, excepting twenty of the best oaks, naming them in certain; these are good exceptions. And if one grant a messuage, and all the lands and tenements thereunto belonging, excepting one cottage; this is a good exception. And if one grant a reversion, excepting the rent; this is a good exception of the rent, and prevents it from passing by the grant. So if man have a rentcharge out of land, and he release his right in the land, except the rent; this is a good exceptions. But if the exception be of another thing than the thing granted; as if one grant a manor or land, excepting twelve pence, or excepting the tithes, these exceptions are void". Or if the exception be such as to be repugnant to the grant, and tends to subvert it, and take away the fruit of it, as if one grant a manor or land to another, excepting the profits; or make a feoffment of a close of meadow or pasture, reserving or excepting the grass; or grant a manor, excepting the services; or two acres, excepting one of them, these are void exceptions. An exception is also void, if it be of an inseparable incident and a thing that cannot be granted by itself; as if a manor be granted, excepting the court-baron; or land be granted, excepting the common appendant*. So if the exception be of a particular thing out of a particular thing; as if one grant white acre and black acre, excepting white acre; or grant twenty acres of land by particular names, excepting one acre of them; these exceptions are void'. So if the exception be set down uncertainly; as if one grant a house excepting one chamber; or grant a manor, excepting one acre; without specifying which chamber, or which acre it shall be; the exceptions will be void". 2. Of the habendum in deeds. DEEDS. deeds. The habendum of a deed, is that part of it which begins Habendum in with, To HAVE AND TO HOLD, and properly follows the premises. The office of the habendum, is so set down again the name of the grantee, the estate that is to be made and limited, or the time that the grantee shall have in the thing granted or demised, and to what use"; though this may be and frequently is done in the premises. And herein also is sometimes, though unnecessarily, repeated, the thing granted as it is sufficient if it be named in the premises, because it is the premises that make the gift, and the habendum does of its own nature refer to the things mentioned in the premises. The habendum cannot, therefore, pass any thing that is not expressly mentioned or contained by implication in the premises of the deed; because the premises being part of the deed by which the thing is granted, and consequently that which makes the gift, it follows that the habendum, which only limits the certainty and extent of the estate in the thing given, cannot increase or multiply the gift, because it were absurd to say, that the grantee should hold a thing which was never given to him P. Hence it is, that if a man grant a manor, to hold together with another manor, or * Co. Lit. 150. " Co. super Lit. 6, 7, 10, 107, and 26, b. n. (4). 2 Co. 55, a; 9 Co. 47; Co. Lit. 6. P 2 Rol. Abr. 65. DEEDS. with the advowson of another manor, only the manor granted in the premises shall pass. But if a private person grants a manor to hold together with an advowson, which belongs to the manor, this is a good conveyance of the advowson, because it was impliedly given by the gift of the manor itself'. We have said, that the estate intended to be granted is sometimes mentioned in the premises: when this is the case, the habendum may alter or abridge, enlarge or explain, the gift in the premises; but if it is repugnant and contrary to the premises, it is void, and shall be rejected; because the rule in the interpretation of all deeds is, that they shall be taken most strongly against the grantor; and therefore he shall not be allowed, by any subsequent part of the deed, to contradict or retract that gift which he made in the premises: thus, if a man give lands to J. S. and his heirs, habendum to him for life, this is a void habendum, because repugnant to the premises *. But though the habendum cannot retract the gift in the premises, yet it may construe and explain in what sense the words in the premises shall be taken; for it is upon a view of the whole deed, that the intent of the parties must be collected: therefore, if lands be given to a man and his heirs, to hold to him and the heirs of his body, this is but an estate-tail; because the habendum only expounds the general word "heir" in the premises, and such exposition is consistent, and does not destroy the operation of the words mentioned in the premises, but only explains in what sense they are to be taken, and what heirs are comprehended *. And if the grant had been to him and his heirs, to hold to him for his life, and the lives of three others; this 23. * 8 Co. 154, b; Co. Lit. 21, a; Lit. Rep. 345; and • Baldwin's case, 2 Co, see Pilsworth v. Pyett, 2 Jon. 4; 2 Keb. 865, S.C. would likewise be a good habendum, because it does not render the word "heirs" in the premises useless, but expounds them only to create a special occupancy, and thereby to prevent the determination of the estate by the death of the grantee ". But if the grant in the premises be to a man and his heirs, to hold for the life of the grantee, this is a void habendum, because it totally defeats the operation of the word" heirs" in the premises; and, consequently, is re-, pugnant and not explanatory, and is therefore void *. Again, if a man make a feoffment in fee of twenty-one acres to A. and B. habendum one moiety to A. and the other moiety to B. this is good, and the habendum makes them tenants in common; for though the premises be joint, and therefore of themselves would operate to give a joint-estate and possession, yet the habendum explaining the manner of possessing is not inconsistent or repugnant, because it makes no division of that undivided possession which was given in the premises. But if the habendum had limited ten acres to A. and the other ten acres to B. this had been void, because the habendum, in this case, contradicts and is repugnant to the premises; for by the premises, the entire and undivided possession of the whole twenty acres is equally given to both; and therefore the habendum that excludes A. out of his share of ten acres, and B. out of his share of ten acres, is contradictory to the premises, and therefore void *. DEEDS. deeds. 3. The next formal part of the deed is the tenendum. Tenendum is This is now, however, of very little use, being only inserted by custom: it was formerly used to signify the tenure by which the estate granted was to be holden, viz. tenendum per servitium militare, in burgagio, in libero soccagio, &c.; but all these being reduced by statute 12 Car. 2, c. 24, into Bowles v. Poor, Bulst. 135, 136; Cro. Jac. 282. 12 Co. 23, 24. 7 Co. Lit. 180, b, n. (1). VOL. IV. 183, b; 190, b, 13th edit.; ■ Hob. 172. |