and Costs had Judgment for him; and a Writ of Error was brought, and the Insufficiency of the Verdict was assigned for Error; but the Judgment was affirmed, because the Plaintiff had released it, Dyer 369, 370. Ejection' custod terræ & hæred', and ill, because intire Damages; and for the hæres no Ejectment lies; yet the Damages being released, he had Judgment for the Land. And 'twas said to be there held, That insufficient finding of Damages, and finding of none, are all one. If a Release of that which is ill found, will help, where such Thing released is directly in Issue; much more it should do so, where the Thing released is but obliquely inquired of, and was not put in Issue to the Jury; and then 'twas repeated what was said before, that the Special Conclusion helps [203] and prevents the General Intendment which otherwise would be had, as to the Damages being intire; and therefore 'twas insisted that this made no Error, but the Judgment in the King's Bench stood good, notwithstanding this Exception. Then the Counsel for the Defendant did likewise wave this, as not being the Cause of the Reversal in the Exchequer Chamber.
Arg. That nothing passed by the Assignment.—Wherefore it was argued for the Plaintiff, That this Assignment or Grant found in the Verdict is void, and passed nothing; for that either it passed the whole Term, or no Part of it, and that immediately; that this must be agreed. Then 'twas said, that it could not pass the whole; for so to do, was contrary to the Intention of all the Parties, to the good Will of the Grantor, and even to the Hopes of the Grantee; for 'tis plain from the whole Contexture of the Deed, that the Defendant was to have nothing in the Term till the Death of the old Man and his Wife: It was undoubtedly the Meaning and Design of all the Persons concerned, that the Defendant only should have the Residue after his Decease.
Then that the Law will not permit this, is plain from the Books; for that 'tis uncertain, how much, or if any of the Term will remain, or be in Being, at the Death of the Grantor or Assignor; that the Law rejects such a small or remote Possibility; that Man's Life in the Eye of the Law is of so great a regard, that 'tis presumed to be of a longer Duration than the longest Term of Years: That this is an old Maxim, upon which Thousands of Properties do depend; that tho' some Mens Reason may not approve it, 'tis not to be altered but by the Legislature. That the Law first prefers Inheritances, or Estates descendible; then Freeholds, or Estates for Life; then Chattels real or Terms for Years: The Law values and regards, what a Man and his Heirs shall enjoy, before that which he himself only can enjoy; and what he himself may enjoy during his Life, before what he may have only for a certain limited Time, the which he may by any Supposal survive. These are known Truths. 32 Assis. 6. Plowd. 521. If a Man be possessed of a Term for 100 Years, and grants so many of them as shall remain at the Time of his Death, this is void for the Uncertainty; otherwise if it be by Devise, because there nothing takes effect till Death, and then 'tis certain how many Years he is to enjoy it. 'Tis true, a Lease of Land for forty Years, to commence after a Man's Death, is good, because 'tis certain that the Land shall be enjoyed for forty Years, but here non constat in certain, that this Deed could take effect for a Year, an Hour, or at all. Bro. tit. Lease, 66. Plowd. 520. A Man possessed of a Term grants it to another during Life, 'tis as much as during the whole Term (tho' never so long) because Life is presumed longer; so if he grant all the Term that shall remain after his Death, 'tis all void, because he reserves to himself the whole; for a greater includes the less; and for Life is the longest of the two. These Things are not to [204] be disputed. If both Premisses and Habendum had had this Limitation, the other Side must have agreed it to have been void ab origine, and nothing to have passed by this Deed.
Objection answered. Office of Premisses and Habendum.—But then the Objection is, That the whole Term passes by the Granting Part, and then the Habendum is void, because 'tis repugnant. To this it was answered, That in a Deed each Part hath its proper Province: The Office of the Premisses is to express the Certainty of the Thing granted; the Habendum is to express the Quantity and Limitation of the Estate. 1 Inst. 6. Plowd. 196. Lofield's Case, 10 Rep. 107. And according to Littleton's Text, Sect. 370. all the Parts of the Indenture are but one Deed in Law; from whence it was inferred, That the Habendum is never to
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