be rejected, but when there is a manifest, express and particular Contradiction; never when the Habendum doth apparently shew the Parties Intention.
Here the Lessee for Years grants totum Cottagium suum, &c. The Grantee or Assignee (if there be no Habendum) hath but an Estate at Will; whereas if he grants all his Estate and Interest in such a Cottage, there the whole Term passeth. This is the express Opinion in Griffin's Case, 2 Leon. 78. Case 102. and there said to have been lately so adjudged in Wynnibank's Case in B.R. Now here's nothing in the Premisses, but what is general, not the whole Estate granted; nor is it said for how long Time he shall enjoy it; and therefore the Habendum cannot be said to be repugnant or contradictory, because the first is not express.
In Stukely's Case, Hob. 170, 171, upon the Case of Grants and Exceptions, is the Learning of Habendums laid down, if it had been a Grant of all his Estate, Habendum after his Death, there the Habendum shall not frustrate the Grant; but if the Premisses give no certain or express Estate, there you may alter and abridge, nay, you may utterly frustrate it by the Habendum; these are the words of the Book: Then was cited 2 Roll's Abr. 66. and 1 Inst. 48. b. and the same Case of Hodge and Crosse, in 3 Cro. 254, 255, where 'twas ruled, That the Habendum, tho' void, shall control the implied Limitation in the Premisses; 'twas a Feoffment of Lands in London, Habend' to the Feoffee and his Heirs after the Death of the Feoffor: And 'twas argued in that Case, That the Habend' was void; but resolved, That nothing passes, because it appears to be the Intent of the Party, that nothing should pass but in futuro; for the Premisses could pass nothing but by Implication, and that was nothing at all, because the Intent was to pass nothing presently; and tho' there were Livery made, yet that Livery could operate only secundum formam Chartæ, and therefore the whole was void; the Reason was, because the first was General, tho' the Law would have given a particular Estate for Life by the Livery; yet because the Party gave none expresly by particular Words, the Habendum was not to be rejected; many of the Rules in Buckler and Har-[205]-vey's Case, 2 Rep. 55. are applicable to this: And altho' there be a Difference, where the Deed passes the Estate, and where Livery or other Ceremony is requisite, as to many Purposes; yet still the Distinction is, where the Premisses do not give all the Parties whole Interest, or some other particular Estate, but is General, there the Habendum shall not be rejected as repugnant. 2 Rep. 23, 24. Baldwin's Case.
As to the Words, together with the said recited Lease, that can only mean the Indenture or Writing; for the Adjective recited implies the Intent to be such: Recited signifies only a Rehearsal or Repetition of Words, spoken or written before; and so is Recitare Testamentum, Calvin's Lexicon, and 'tis joined with the other Writings and Evidences concerning the Premisses; and doubtful Words are to be construed according to the Nature of the Things expressed and mentioned with them: Lease in it self imports only the Conveyance or Instrument of Conveyance, not the Interest in the Thing conveyed; if by Writing, 'tis called a Deed or Lease in Writing; if otherwise, a Lease Parol. Thus is it explained in Blunt's Law Dictionary, and in Knight's Case, 5 Rep. 55. where all the Parts of it are described: A Man may give away his Lease, and yet retain his Estate or Term: He may deposite it as a Pawn or Pledge; and the Party, in whose Custody 'tis so lodged, may maintain Trover or Trespass, if it be taken from him, nay, against the Lessee himself, the Owner of the Lands, if he takes it before the Performance of the Condition; so that these Words cannot alter the Case; this is not the Case of a Will, but of a Deed executed in the Life-Time of the Party; the Rule, and the Reason of the Rule about Exceptions in Grants, will hold to this; where the Grant is General, the Exception cannot be rejected as void, on Pretence of Repugnancy: The Common Law doth not care to raise, or make Estates by Implication, where the same Person hath an express one; so is Vaughan, 261, 262; therefore there's no Reason in this Case, to construe the whole Term to pass by Implication in the Premisses, a particular Estate being limited in the Habend', and that not being good, all is void: Here's no Purchaser, Creditor, or Heir in the Case, but 'tis a mere voluntary Act to the Defendant.
Then was cited 1 Cro. 376. 2 Bulstr. 272. of a Copyholder's Surrender, Habend' a tempore mortis, and held void; wherefore upon the whole it was insisted, That
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