[III. We are next to consider, how a deed may be avoided, or rendered of no effect. And from what has been before laid down, it will follow, that if a deed wants any of the essential requisites before-mentioned, either, 1, Proper parties, and a proper subject-matter: 2, Writing on paper or parchment, duly stamped: 3, Sufficient and legal words, properly disposed: 4, Reading, if desired, before the execution: 5, Sealing, and by the statute, in most cases, signing also: or, 6, Delivery; it is a void deed ab initio. It may also be avoided by matter ex post facto: as, 1, By rasure, interlining, or other alteration in any material part; unless a memorandum be made thereof at the time of the execution and attestation (u). 2, By breaking off or defacing the seal (x). 3, By delivering it up to be cancelled, that is, to have lines drawn over it in the form of lattice work or cancelli; though the phrase is now used figuratively for any manner of obliteration or defacing it. 4, By the disagreement of such, whose concurrence is necessary, in order for the deed to stand: as the husband, where a married woman is concerned; an infant or person under duress, when those disabilities are removed; and the like.]

Deeds are also in some cases avoided by objections relating to the consideration on which they are founded, or to their want of consideration.

The consideration of a deed [may be either a good or a valuable one. A good consideration is such as that of blood or of natural love and affection, when a man grants an estate to a near relation, being founded on motives of generosity, prudence, and natural duty: a valuable consideration is such as money, marriage, or the like, which the law esteems an equivalent given for the grant (y).] Deeds made without any consideration whatever, or even

(u) Pigot's case, 11 Rep. 27; Henfree v. Bromley, 6 East, 312; Matson v. Booth, 5 M. & Sel. 223; Hall v. Chandless, 4 Bing. 123; Hudson v.

Revett, 5 Bing. 368.

(1) Matthewson's case, 5 Rep. 23. (y) Twyne's case, 3 Rep. 83; 2 Rol. Abr. 779; Palm. 214.

those made for good, though not for valuable, consideration, are said to be voluntary; and by force of the statute 27 Eliz. c. 4 (2), voluntary deeds are void as against bona fide purchasers (a), and also void by 13 Eliz. c. 5, as against creditors, where the grantor is indebted at the time (b). So all deeds are liable to be impeached if founded on immoral or illegal consideration, or if obtained by fraud. But in general, their legal efficacy will not be prevented by the mere want of consideration. For in this respect they are distinguished from simple contracts, that is, contracts not under seal; to the validity of which some consideration is essential: but a writing sealed and delivered is supposed by the law, to be made with due deliberation, and to express fully and absolutely, the intention of the party by whom it is executed: he is therefore bound by its execution, whether he received a consideration for the grant or engagement which it comprises, or not (c). We may add here, that whenever it appears that a deed was obtained by fraud, force, or other foul practice, or it is proved to be an absolute forgery, it is not only incapable of being enforced, but may be formally set aside by the judgment or decree of a court of judicature. This was anciently the province of the Court of Star Chamber, and it now belongs to the Court of Chancery (d).

IV. As to the general rules which our law has esta

(*) Made perpetual by 39 Eliz. c.

18, s. 31.

(a) Johnson v. Legard, 6 M. & Sel. 60; Doe v. Manning, 9 East, 59; Doe v. Rolfe, 8 Ad. & El. 650.

(b) Bac. Abr. Fraud (C).

(c) Bac. Read. Uses, 79; Bunn v. Guy, 4 East, 200; Irons v. Smallpiece, 2 Barn. & Ald. 554; Pratt v. Barker, 4 Russ. 507. According to Blackstone, a deed made without consideration is" as it were of no effect, "for it is construed to enure or to be "effectual only to the use of the gran

"tor himself."-2 Bl. Com. 296. But

this properly applies only to conveyances; and even as to these, is too largely laid down; for it is clear, that a conveyance, if intended to be gratuitous, or by way of mere gift, will operate accordingly, and be effectual for the benefit of the grantee, except as far as it may interfere with the rights of creditors or bond fide purchasers. Vide Irons v. Smallpiece; Pratt v. Barker, ubi sup.

(d) 2 Bl. Com. 309.

blished relative to the construction of deeds, they are principally as follows:

1. A deed is to be expounded according to the intention, where the intention is clear, rather than according to the precise words used (e). For verba intentioni debent inservire and qui hæret in litera hæret in cortice. [Therefore by a grant of a remainder, a reversion may well pass, and è converso(f). And upon a similar principle, it is a maxim that "mala grammatica non vitiat chartam;" neither false English nor bad Latin will destroy a deed (g), which perhaps a classical critic may think to be no unnecessary caution.]

2. To explain an ambiguity in the language of a deed, no evidence dehors the deed itself is admissible (h). For in such cases the doubt arises merely from the failure of the parties to express their own meaning in proper terms; and if the law allowed the difficulty to be removed by extraneous evidence, it would render precision of less importance, and introduce inconvenient laxity into the structure of deeds in general (i). But here it is necessary to distinguish between patent and latent ambiguities (k). The first are, where the doubt arises upon the face of the instrument itself; and to these the rule applies: the second are where the doubt is introduced by the existence of a fact not apparent on the face of the deed; and to these the rule has no application: the reason for which, seems to be, that where the ambiguity itself is produced by circumstances extraneous to the deed, its explanation must of necessity be sought for through the same medium.

3. The construction of a deed should be made upon the

(e) Chapman v. Dalton, Plowd. 289; Hasker v. Sutton, 1 Bing. 500. (f) Hob. 27. Et vide 2 Saund. by Wms. 96 b, n. (1).

(g) Osborn's case, 10 Rep. 133; 2 Show. 334.

(h) Bac. Max. Reg. 23.

(i) Or (as expressed by Lord Bacon) it would "make all deeds

"hollow, and subject to averments." Bac. Max. Reg. 23.

(k) As to patent and latent ambiguity, vide 4 Cru. Dig. 425; 6 Cru. Dig. 165; Bac. Max. Reg. 23; Sanderson v. Piper, 5 Bing. N. C. 425; Doe v. Needs, 2 Mee. & W. 129; Doe v. Hiscocks, 5 Mee. & W. 363.

entire instrument, and so as to give effect, as far as possible, to every word that it contains (1).

4. The construction should be favourable, and such that "res magis valeat quam pereat (m)." In connection apparently, with which rule, it is also laid down, that if the words will bear two senses, one agreeable to and another against law, that sense shall be preferred which is most agreeable thereto (n). As if tenant in tail lets a lease to have and to hold during life generally, it shall be construed to be a lease for his own life only; for that stands with the law; and not for the life of the lessee, which is beyond his power to grant.]

5. When any thing is granted, the means necessary for its enjoyment are also granted by implication; for it is a maxim that cuicunque aliquid conceditur, conceditur et id sine quo res ipsa non esse potuit (o). Thus, if a man conveys a piece of ground in the midst of his estate, a right of way to come to it, over the land not conveyed, will pass to the grantee.

6. If there be two clauses so totally repugnant to each other that they cannot stand together, the first shall be received, and the latter rejected (p).]

7. Ambiguous words shall be taken most strongly against the grantor, and in favour of the grantee (9). Verba fortius accipiuntur contra proferentem. [For the principle of self preservation will make men sufficiently careful not to prejudice their own interest, by the too ex

(1) 2 Bla. Com. 379.

(m) Plowd. 156; Shep. Touch. 82, 83; 2 Bl. Com. 380; James v. Plant, in error, 4 Ad. & El. 766; Roe v. Tranmarr, Willes, 682; Doe v. Davies, 2 Mee. & W. 511; 2 Saund. by Wms. 96, n. (1).

(n) Co. Litt. 42 a.

(0) Co. Litt. 56 a; Shep. Touch. 89; Liford's case, 11 Rep. 52; 1 Saund. by Wms. 323 a, n. (6); Lord Darcey v. Askwith, Hob. 234; Earl

of Cardigan v. Armitage, 2 Barn. & Cres. 211; Harris v. Ryding, 5 Mee. & W. 60; Hinchliffe v. Kinnoul, 5 Bing. N. C. 24.

(p) Shep. Touch. 88; Hard. 94; Doe v. Pedley, 1 Mee. & W. 677; 2 Taunt. 113.

(9) Co. Litt. 36a; Bac. Max. Reg. 3; 2 Bl. Com. 380; Doe v. Edwards, 1 Mee. & W.556; Bullen v. Denning, 5 Barn. & Cres. 842.

[tensive meaning of their words, and hereby all manner of deceit in any grant is avoided, for men would always affect ambiguous and intricate expressions, provided they were afterwards at liberty to put their own construction upon them. But in general, this rule, being a rule of some strictness and rigour, is the last to be resorted to, and is never to be relied upon but where all other rules of exposition fail (r).]

Having thus considered the general nature of deeds, we may remark finally as to their use and application, that it is not only through these instruments, that conveyances are for the most part transacted, but that a deed is in some cases absolutely essential to the transaction, as will be more fully noticed when the occasions shall arise.