Uvedale v. Halfpenny, 2 P. Wms. 151. Targus v. Where aDeed is uncertain, it is void. 28. In a settlement lands were limited to the husband for life, remainder, as to part, to the wife for life, remainder of the whole to the first and other sons of the marriage in tail male, remainder to trustees for 500 years, to raise portions for the younger sons and daughters: the trust of the term was declared to be to secure maintenance for the younger children from the husband's death, and to pay the portions of the younger sons at 21, and of the daughters at 21 or marriage. The eldest son suffered a recovery of the estate tail. A bill was brought to rectify the mistake in the settlement, in placing the term after the limitation to the first and other sons in tail; whereas the term should have come in before that limitation. Sir J. Jekyll decreed that the settlement should be rectified, by placing the term of 500 years before the estate tail. 29. Where the words of a deed are so uncertain that the intention of the parties cannot be discovered, 1 Inst. 20 b. the deed will be void. Thus a gift to A. or B. or to one of the children of J. S., he having four children, is void for uncertainty. Windsmore v. Hobart, Hob. 313. Some Opera- 30. Lands were demised to T. H., habendum to the said T. H. and three other persons successivè. Resolved, that no one could take immediately but T. H., because he was the only party to the deed, for the rest were only named in the habendum: and that the others could not take by way of joint remainder, on account of the word successivè, nor in succession; on account of the uncertainty who should take first, and who should follow 31. Where a deed cannot operate in the manner intended by the parties, it will be construed in such a manner as to operate in some other way. Quando quod ago non valet ut ago, valeat quantum valere potest. In consequence of this principle it has been deter-, mined, that a deed which was intended to operate as a lease and release, or bargain and sale, but could not take effect in that manner, should operate as a covenant to stand seised. 32. A deed intended to operate as a bargain and sale, but which was void for want of a pecuniary consideration, has been held to operate as a confirmation. 33. A father by indenture, in consideration of the love he bore his son, bargained, sold, gave, granted, and confirmed certain lands to him and his heirs. The deed was enrolled; and the question was, whether the lands should pass. It was held they should not, unless money had been paid, or estate were executed; for the use should not pass: but because the son was then in possession, it was held to enure by way of confirmation. 34. So where a conveyance was void as a lease and release, because the releasor had only a term for years in the land, it was resolved that it should operate as a grant and assignment. ante, ch. 9. § 27. ch. 10. 4. Osborn v. Churchman, Cro. Ja. 127. Franks, Gilb. R. 143. 35. A person possessed of lands for a term of 999 Marshall v. years, by lease and release, for a valuable consideration, granted, bargained, sold, and demised them to trustees and their heirs, to the use of himself and his wife for their lives, remainder to the heirs of the wife; and covenanted that he was seised in fee. It was argued, that nothing passed by this conveyance; for it being only a term in gross, no use passed to the trustees by the statute 27 Hen. VIII., which only raises a use out of a freehold: that no use passed by the lease for a year, or bargain and sale, and therefore the release could not operate by way of enlargement. But the Chancellor was of opinion, that Doe v. Williams, infra. ante, c. 4. § 45. Goodtitle v. Bailey, Cowp. 597. although the conveyance was void as a lease and release; yet, the husband being in possession, and the word grant being inserted in the release, it should take effect as a grant or assignment of his whole interest at common law. 36. A release will be construed to operate as a grant of a reversion, in order to effectuate the intention of the parties. 37. Robert Edwards being entitled to a reversion in fee, expectant on an estate for life, by deed of release, renounced, remised, released, and for ever quit-claimed all the said premises to A., and the heirs male of his body; and all his right, title, and interest therein. It was contended, that nothing passed by the release in this case, for want of proper operative words. There were appropriated terms to every conveyance; and where the word grant was used, being genus generalissimum, if the instrument could not take effect according to its proper form, it should operate in some other, if by law it could. But here the words were, renounce, release, and quit-claim; which were the special form of words adapted to a release only therefore it could not operate as a grant. 1 Inst. 301 b." A release, confirmation, or surrender, &c. cannot amount to a grant." In the case of ante, ch. 10. Roe v. Tranmer, the word grant was used; and so it was in the cases there cited: but here there was no such word, nor any thing equivalent to it; consequently, nothing passed by the deed. Lord Mansfield said, the rules laid down in respect of the construction of deeds, were founded in law, reason, and common sense; that they should operate according to the intention of the parties, if by law they might; and if they could not operate in one form, they should operate in that which by law would effectuate § 5. the intention. But an objection was made in this case, which, it was said, took it out of the general rule, and the doctrine of the authority cited: that was, that in the release in question, the word grant was not made use of. But that the intention of the parties was to pass all the right and title of the plaintiff in the premises, was manifest beyond a doubt. Mr. Justice Aston observed, that this was the Vide Chester common wording of a releasee; but though in the v. Willan, shape of a release, if there were sufficient words, it Scawen. might operate as a grant. Judgement was given upon another point. Eustace v. Tit. 18. c. 2. $27, 28. 38. Where a deed of bargain and sale is not en- 11 Ves, 625. rolled, relief may notwithstanding be had in equity upon it, as an agreement to convey: an obligation arising upon it from the payment of the money. It may also be good as a grant of the reversion, if the ante, c. 4. lands are in the occupation of tenants. 39. All modern deeds contain, in the granting part, a great number of the most operative technical words. Thus, in a release, the words, grant, bargain, sell, release, and confirm, are always used: because, if the conveyance should not happen to be good as a release, it may operate as a grant, a bargain and sale, or a confirmation. § 45. how to take. Touch, 83. 40. Where a deed may enure in different ways, the Where the person to whom it is made shall have his election Grantee has an Election which way to take it. Thus, if a deed be made by the words dedi et concessi; this in law may amount to a grant, feoffment, gift, lease, release, confirmation, or surrender. And it is in the choice of the grantee to plead or use it the one way or the other. Case, 41. Sir R. Heyward, being seised in fee of the Heyward's manor of D. &c., and of divers lands and tenements, 2 Rep. 35. whereof part was in demesne, part in lease for years, with rents reserved, and part in copyhold; by indenture, in consideration of a sum of money paid to him by R. W. and E. P., demised, granted, bargained, and sold, to the said R. W. &c., the said manors, lands, tenements, and the reversions and remainders of them, with all rents reserved on any demise; to hold to them and their assigns, presently after the decease of the said R. Heyward, for the term of 17 years; which indenture was enrolled. Afterwards the said Sir R. H., by another indenture, covenanted with T. F. and others, to stand seised of the premises to the use of himself and the heirs of his body; and no attornment was made under the first conveyance. The question was, whether the bargainees should have election to take by the bargain and sale in toto, notwithstanding their general entry; or whether the estate which passed as an interest at common law, should be preferred before the raising an use. It was resolved by Popham and Anderson, chief justices, and the whole Court of Wards, that R. W. and E. P. had election to take it, either by demise at the common law, or by bargain and sale: for where a person seised in fee, for money, demises, grants, bargains, and sells his lands for years, he who is owner of the land, by his express grant, gives election to the lessee to take it by the one way or the other; for he hath sole power to pass it by demise or bargain; and therefore the law will not make construction against such express grant: and namely, in this case, where it would tend to the prejudice of the lessees; for if the law should force them to take it by demise, then they would lose the rents reserved upon the leases for years. It was also resolved, that this right of election continued, notwithstanding the alteration of the estate by the second indenture, the death of the |