by the Premisses, nothing passed but an Estate at Will. That the Habend' giving an Estate or Interest, which was not allowable in the Law, the Deed was void, and passed nothing; and therefore the Verdict was for the Plaintiff, and the Judgment in B.R. was good, and accordingly it was prayed, That the Reversal of that Judgment might be reversed.
[206] Argument for the Defendant in Error. Judgment of Reversal affirmed.—On the other Side it was argued, That to construe this to be void, was contrary to the Intention of both the Parties; That now the Grantor and his Wife were dead, and there was no Dispute about their Estates: That the Premisses here passed the whole, 'tis to her and her Executors and Assigns, 'tis all that Cottage; ' tis together with all his Deeds concerning it, the Deeds are conconfitant with the Estate, and when he grants the Deeds, he certainly did design to pass his Interest; he could never mean an Estate at Will, when he names the Executors, &c. Then was cited the Case of Lilley and Witney, Dyer 272. pl. 30. Grant of all his Interest, Estate, and Term, Habend' after his Death, the Habend' is void, Plowd. 520. 1 Bulstr. 191. Bro. Grants, 154. Leases, 66. The Presumption that a Man can outlive a 1000 Years, is a weak Pretence, and void of Reason: Equity is a Part of the Law of the Land; and here to judge this void, is unconscionable and unreasonable. Then was cited 1 Anderson 284, 290. Grant of a Reversion, Habend' after his Death, shall vest immediately; the Lease imports and carries the Estate, Peto and Pemberton, 1 Cro. 101. Plea, That he had surrendered his Lease, which shews, that it carried the Interest, they are Synonymous. Bro. tit. Grant, 155. A Man grants omnia firma sua, shall pass his Term: There's no prescribed Form for passing a Chattel before the Stat. of Frauds. A Man possessed of a Term, grants it to another and his Heirs, it passeth the whole; so to a Man for Life; it shall pass the whole Interest, and shall go to his Executor. Plowd. 424. 3 Cro. 534. If the Habend' were out of the Case, this would pass the whole, and if so, the Habend' is void; 'tis an old Rule and a good one, Ut res magis valeat quam pereat: The Lord Chief Baron Hale seem'd of that Opinion in the Case of Smith and Tutchett, in scacc' (but that proved a Mistake, for that Case was different, and was ended by Consent, as appeared by a Rule, Die Mercurii 13 Die Maii, Term. Pasch. 26 Car. 2. after Hale was removed into the King's Bench.) Then 'twas said, that there could be no ill Consequence in adjudging this to be a good Assignment; the like Case was never probable to happen again, that there had been a Diversity of Opinions below Stairs, that Equity was with the Defendant, and therefore 'twas prayed, That the Reversal might be affirmed; and it was affirmed accordingly.
[207] Bennett Swayne, Esq.,—Petitioner; v. William Fawkener and John Lane, Executors of Benjamin Middleton,—Defendants [1696].
[15 Lds. Jo. 726 (Swayne v. Middleton).]
Devise to A. not saying and his Heirs, of a Share in the New River, what passes by it, an Estate for Life, or a Fee.—Writ of Error to reverse a Judgment in the King's Bench given for Benjamin in an Action against Swayne for 20l. received by him of the Profits of a Share in the New River, &c. The Case was thus;
Simon Middleton, Esq; being seized in Fee of Seventeen Thirty-six Parts of the King's Moiety in the New River Water, and having Issue eight Children, viz. Hugh, Sarah, Hannah, and Anne, by his first Wife; and Elizabeth, Rebecca, Benjamin, and Hezekiah by his second Wife, made his last Will; and thereby amongst other Things, to the Intent that all his younger Children might be provided for, he devised Seven Thirty-sixth Parts or Shares of the King's Moiety aforesaid amongst them, in manner following, viz. to Sarah, Hannah, and Anne, to each of them and their Heirs, one full Thirty-sixth Part or Share of the said King's Moiety, free and discharged from the Fee-Farm Rent payable to the King's Majesty, and of 100l. per Annum payable to Henry Middleton deceased, and his Heirs, and from all other Payments and Charges whatsoever. And also to
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