207. 4. A lease for life was made to B., remainder to Anon. 4Leon. C. and D. in tail. It was holden that C. and D. could not disagree to the remainder, without matter of record; for they were tenants in common. But if the remainder had been limited to them in fee, so as they took jointly, it had been otherwise; for then, by the disagreement of the one, the other should take the whole lands. § 29. 5. It has been stated that every grantee in a deed Ante, c.1. takes the estate granted, till some disagreement ap- Hawkins v. Kemp. pears on his part. And it is now settled, that in such 3 East, 410. cases the grantee may, by deed only, disagree, and Crewe v. disclaim the estate, by which it will be divested out Tit. 12. c. 4. of him. Dicken, $ 35. 6. All deeds executed by persons under duress of Duress. imprisonment, or duress per minas, are void. Thus, 2 Inst. 482. if a person is put under any illegal restraint or confinement, until he executes a deed, he may allege Strathmore this duress, and thereby avoid the deed. But if a infra. man be lawfully imprisoned, and either to procure his discharge, or on any other fair account, executes a deed, he will not be allowed to avoid it. v. Bowes, 7. If a man, through a reasonable and well-founded 2 Inst. 482. fear of death, or mayhem, or loss of limb, is forced to execute a deed, he may afterwards avoid it. But Lord Coke says it is otherwise where a deed is executed for fear of battery, which may be very light; or burning his houses, or taking away or destroying his goods, or the like; for there he may have satisfaction, by recovery of damages. Interlinea 8. A deed may be avoided by erasure or interli- Erasure or neation. And in Pigot's case it was resolved, that when any deed is altered in a part material, by the 11 Rep. 26. plaintiff himself, or by any stranger, without the privity of the obligee; be it by interlineation, addi Henfree v. 7 Rep. 27 a. tion, rasing, or by drawing a pen through the midst 9. If the obliteration be made by the party who owns the deed, although it be in a part not material; or that it is to the advantage of the other party, and to his own disadvantage; yet the deed will be rendered void. But if the alteration be made by a stranger, in an immaterial part, without the privity or consent of the owner, it will not make it invalid. 10. An interlineation, if nothing appear to the contrary, will be presumed to have been made at the time when the deed was executed, and not after : Fitzgerald v. and it has also been held, that an interlineation by Fauconberg, Fitzgib. 204. which a power of sale was enlarged, should be pre Trowell v. I Keb. 22. Breaking off the Seal. 2 Rep. 22 b. Seaton v. 2 Show. 29. Argol v. sumed to have been made at the time of the execution of the deed, and not after; if nothing appeared to the contrary. 11. The modern practice is, when any alteration, interlineation, or erasure is made in a deed, before it is executed, to take notice of it in the attestation. 12. It was formerly held, that if the seal of a deed was broken off, or so defaced, that no sign or print of it could be seen; unless the person who was bound by the deed did it; such deed became void. This doctrine was however soon altered; and it was settled, that if there was reason to presume that the seal of a deed had been torn off by accident, or destroyed by time, the deed should notwithstanding be deemed valid. 13. The seals of a deed to lead the uses of a recovery were broken off; but it being proved that seals were once annexed to it, and that they were torn off a by little boy; and the parts torn off being compared with the deed, and agreeing, it was held to be valid. Touch. 70. 14. If a deed be delivered up to be cancelled, to Cancelling. the party who is bound by it, and it is accordingly cancelled, by tearing off the seals, or otherwise defacing it; or if the person who has the deed cancels it, by agreement with the other party; it becomes void. Leech v. Leech, 15. But where an estate has actually passed by a deed, the cancelling of such deed afterwards will 2 Cha. Rep. not divest any estates out of the persons in whom 52. they were vested by that deed. Case, Prec. 16. A father having quarelled with his eldest son, Hudson's made a settlement on his, wife of 1007. a year, in aug- in Cha. 235. mentation of her jointure. Afterwards, being reconciled to his son, he cancelled the deed, and so it was found at his death. On a trial at law, the deed being proved to have been executed, was adjudged good, though cancelled. 17. In setting forth a conveyance, it was stated, Bolton v. Carlisle, that a deed of release was cancelled, by the releasor's 2 H. Black. seal being torn off, and destroyed; and that part of 259. the deed was lost, with a profert in curia of the residue. It was held to be good pleading; and Lord Ch. J. Eyre said "I hold it clearly that the cancelling a deed will not divest property, which has once vested, by transmutation of possession. And I would go farther and say, that the law is the same with respect to things that lie in grant. In pleading a grant, the allegation is, that the party at such a time did grant. Bnt if by accident the deed is lost, there are authorities enough to show, that other proof may be admitted. The question in that case is, whether the party did grant. To prove this, the best VOL. IV. Kk evidence must be produced, which is the deed: but if that be destroyed, other evidence may be received, to show that the thing was granted. For God forbid that a man should lose his estate, by losing his title deeds." 18. Where a tenant for life, with a power of leasing, in consideration of the surrender of a prior term, granted a new lease, which was void; it was held that the prior term, though the indenture of lease was in fact cancelled, and delivered up, when thé new lease was granted, might be set up by the tenant, in bar to an ejectment brought by the remainder-man, after the death of the tenant for life. 19. By the several statutes against usury, particu larly that of 12 Ann. st. 2. c. 16, it is enacted, that no person shall take, directly or indirectly, for the loan of any monies, wares, merchandizes, or other commodities whatsoever, above the value of five pounds for the forbearance of 1007. by the year; and so after that rate for a greater or lesser sum, or for a longer or shorter time. And that all bonds, contraets, and assurances whatsoever, for payment of any principal money to be lent, whereupon or whereby there shall be reserved or taken above the rate of 51. in the hundred as aforesaid, shall be utterly void; and the person taking above 51. for the forbearance of 1001. for a year, shall forfeit treble the value of the monies, &c. so lent. 20. These statutes do not extend to post obit bonds, or to the purchase of annuities for lives; where the purchaser's principal is boná fide, and not colourably, put in jeopardy. For in that case no inequality of price will make it an usurious bargain. 21. By the statute 14 Geo. II. all mortgages of estates or other property in Ireland, or in the colo nies or plantations in the West Indies, bearing the interest allowed in those countries, shall be legal; though executed in Great Britain: unless the money lent shall be known at the time to exceed the value of the thing or pledge. In which case also, to prevent usurious contracts at home, under the colour of such foreign securities, the borrower shall forfeit treble the sum borrowed. 22. It has been held that this statute only extends Dewar v. Span, to bonds given as collateral securities, for the pay- 3 Term R. ment of the principal and interest lent on such 425. mortgages; and not to any other bonds, or personal securities. Deeds ob 23. Although the courts of common law have a Equity avoids jurisdiction in all matters of fraud, and may avoid tained by deeds upon that ground, yet the usual practice has Fraud. long been to seek redress in equity, against deeds that have been fraudulently obtained; because a court of equity will allow of a great number of averments, and will admit of several kinds of evidence, not received in courts of law. 24. The cases which have been decided on this head are however so various, and each of them depends so much on its own particular circumstances, that only a few general principles can be deduced from them. B. i. c. 2. 25. It may however be laid down, that ignorance Treat. of Eq. and misapprehension of the party, is a ground on § 7. which courts of equity have sometimes avoided a deed. But equity will not interpose, if the fact was from its nature doubtful; or equally known to both parties, at the time of the agreement. 26. It is not every surprise that will avoid a deed Idem, § 8. duly made, nor is it fitting; for it would occasion great uncertainty, as it would be impossible to fix |