words or clauses, repugnant to the express grant, demise, covenant, &c. eplarge such grant, &c. Thus, where in a lease of land for forty years, the lessor covenanted that the lessee and his assigns should enjoy the land for the term of "eighty years aforesaid," it was decided that this covenant for enjoyment did not enlarge the term; and the words "eighty years aforesaid" were rejected as inconsistent with the demise.' So where a rent of £20 was granted, issuing out of certain lands, habendum after the decease of Ann Greaves and Thomas Greaves, or either of them-the first payment to be made at a certain feast day that should first happen after the death of A. or T. Greaves-with a clause that if the rent should be unpaid at any feast day named, the grantee, at any time during the joint lives of said A. and T. Greaves, might distrain, &c., as no rent was granted during the joint lives of these persons, the words "during the joint lives," &c. were rejected as repugnant. So where A. acknowledged the receipt of three hogsheads of tobacco in part of his claim on B., "he the said A." to be allowed per cent. the highest six months' credit price, it was held that the words "said A." should be rejected as repugnant to the clear intent of the parties.' So in all cases, doubtless, of

Savile, 71, pl. 147. See Weak v. Escott, 9 Price, 595.

2

2 Crowley v. Swindles, Vaugh. 173. This case was decided on a demurrer to a cognizance in replevin, in which the grant was pleaded according to its meaning and effect, without mentioning the joint lives, &c. The plaintiff had oyer, and set forth the grant in hæc verba, and demurred. The cognizance was held good. The construction would have been the same if the grantee had claimed the rent while A. and T. Greaves were both alive.

3 Ferguson v. Harwood, 7 Cranch, 414. This case also was decided on a question of variance-the pleadings alleging the contract as above stated, and the contract itself being different. But Story, J., said that if the contract had been as set forth, the same result must have been produced.

The cases of Vernon v. Alsop, T. Ray. 68, 1 Lev. 77, 1 Sid. 105, and Mills v. Wright, 1 Freem. 247, come within this rule of construction-where the condition of a bond for payment of money was that the bond should be void if the money was not paid. It was wholly repugnant to the bond itself;

the erroneous substitution of one party for the other, in a written contract, where the error is manifest on inspection of the instrument. This rejection of repugnant matter can, however, be made only in cases where there is a full and intelligible contract left to operate after the repugnant matter is excluded. Otherwise the whole contract, or such parts of it as are defective, will be pronounced void for uncertainty.

In those contracts, in which the repugnancy or ambiguity is apparent on the face of the contract itself, if the repugnancy, &c. be such as renders the intention of the parties unintelligible, the contract is null and void. Parol evidence is inadmissible to explain a written instrument which contains a latent ambiguity. If the rules of construction fail to elicit the meaning, the parties are without remedy. But there are ambiguities and repugnancies which are latent, and "a latent ambiguity," says lord Bacon, "may be holpen by averment." A latent ambiguity is one which arises extrinsically in the application of an instrument of clear intrinsic meaning. As if one promise to pay John Smith a certain sum of money. This is clear on the face of the promise; but there may be many men of that name. This is an extrinsic fact, and parol evidence is admissible to show to which man of this name the promise was made. So if one devise or grant his land in D, the words are unambiguous; but parol evidence may and must be received to show the situation, extent, &c. of the land. "Parcel or not parcel of

the thing demised is always matter of evidence."1

In conveyances of land, it is often necessary to resort to extrinsic evidence of the grantor's intention. The ambiguity often being latent, evidence dehors the grant, &c. is

but by rejection the bond was left in full force, as an entire and perfect contract. See Finch's Law, 52; Stockton v. Turner, 7 J. J. Marsh. 192; Gully v. Gully, 1 Hawks, 20; Doug. 384, per Buller, J.; 2 Atk. 32.

1 See 3 Stark. Ev. 1000, 1026; 1 D. & E. 704.

allowed to affect its construction. The description of land can be verified or falsified, in part or in whole, by inspecting the land, and by comparing monuments, courses, distances, &c. Therefore, if the description of an estate conveyed be sufficient to ascertain what was intended to passthough, upon examination, or upon inquiry into extraneous matter of description, the estate will not agree with some of the particulars of the description; yet it should pass by the conveyance, so that the intention may be effected. No peculiar principle of construction is adopted in these cases. Nor is this application of the common rules of construction peculiar to agreements respecting lands. In all agreements, whatever be the subject of them, when there is a latent ambiguity, the same application of the principle is made.

As conveyances of land are as frequent as almost any other species of contract, and are the frequent subject of discussion in our courts, some of the prominent rules and established canons of construction may properly be mentioned in this connection.

When the description of the estate intended to be conveyed includes several particulars, all of which are necessary to ascertain it, no estate will pass except such as agrees with every particular of the description. As if one grant all his land in his own occupation in the town of D, no land passes, except what is in his own occupation, and is also in that town. Every part of such grant takes effect by this construction.' But if the description is sufficient to ascertain the estate, although the estate will not agree with all the particulars of the description, yet it will pass. As if one convey his house in D, which formerly belonged to A. B., when it never was A. B.'s, but was C. B.'s, the house in D shall pass, if the grantor had only one house.

1 Plowd. 191.

The description of the house in D is sufficient to ascertain the building. The intention of the parties is thus effected, and the rejected part of the deed is that which cannot operate consistently with that intention. If, however, the grantor had two or more houses in D, neither of which ever belonged to A. B., the grant would be inoperative, and void for uncertainty. But if other words of description were added, sufficient to identify the house intended, then it would pass, on the principle before mentioned, though the former owner was misnamed.' Thus a conveyance "of all that my farm in W, on which I now dwell, containing one hundred acres, with my dwelling house and barn thereon, being lot No. 17, &c., bounded," &c., was held to pass the farm on which the grantor dwelt, though it was not lot No. 17, and though the boundaries were mostly misdescribed.

Where the boundaries of land described in a deed are fixed and known monuments, although neither courses, distances, nor computed contents agree therewith, the monuments must govern. Courses and distances may be erroneously taken and measured; and computation of contents

1 Lamb v. Reaston, 5 Taunt. 207; Vose v. Handy, 2 Greenl. 322; Roe v. Vernon, 5 East, 51; Doe v. Greathed, 8 East, 91; Bac. Ab. Grants, H. 1; Com. Dig. Grant, E. 13.

2 Worthington v. Hylyer, 4 Mass. 196. S. P. Jackson v. Loomis, 18 Johns. 81; 19 Johns. 449. In Plowd. 191, will be found the substance of the law as to the construction of grants. See also Massie v. Watts, 6 Cranch, 148; Jackson v. Wilkinson, 17 Johns. 146, and cases there cited. Jackson v. Clark, 7 Johns. 217. The state of titles, in Kentucky, gave rise to a course of decisions, and to the adoption of rules of construction, which evince great skill' and ability in the courts, and which have nearly overcome and reduced to order the confusion formerly so embarrassing to claimants of land in that portion of the country. The most important of these decisions may be found— either made or cited by the supreme court of the United States-in Cranch and Wheaton. But as the doctrines are chiefly of local application-though not contrary to the spirit of the common law rules of construction-it seems hardly advisable to detail them in this place. See 1 Pirtle's Digest, 113–131.

may be inaccurate. Fixed monuments remain, and there can be no uncertainty about them. If, however, the monuments cannot be ascertained, the length of lines mentioned in the deed must govern. But there may be cases, in which it is more reasonable to suppose that there is a mistake as to the monuments referred to, than in the admeasurement of the distances, when they are found to disagree; and in such cases (which must be few) the admeasurement shall determine the boundaries, rather than the monuments.'

If a deed of conveyance refer to a monument not in existence at the time, and the parties afterwards erect it, with the intention of conforming to the deed, the monument will govern the extent, though it do not coincide with the line described in the deed.*

Lands, granted as bounded on a river, extend to the thread of the river-ad filum aquæ-unless from prior grants on the other side of the river, such construction is negatived. And if there be an island in the river, the line will run in the same manner as if there were no island. If, therefore, the island be wholly on one side of the thread of the stream, it will belong to the owner of the bank on that side if in the middle of the stream, it will belong in severalty, one half to each of the riparian proprietors. So of any other proportions into which the island may be divided by the thread of the river. And the law is the same in case of the accession of an island in a stream. It will belong to the owners of the banks, and they will be entitled to hold to the thread of the river and to divide it pro modo

1 See Savile, 114; 2 Freem. 107. The numerous American decisions on this point are cited in 1 Metcalf and Perkins's Digest, 474.

2 Makepeace v. Bancroft, 12 Mass. 469; Lerned v. Morrill, 2 N. Hamp. 197; Waterman v. Johnson, 13 Pick. 267; Kennebec Purchase v. Tiffany, 1 Greenl. 219.

3 Lunt v. Holland, 14 Mass. 149; King v. King, 7 Mass. 496; The King v. Wharton, 12 Mod. 510; 3 Kent's Com. 1st. ed. 344.

4 Ingraham v. Wilkinson, 4 Pick. 268, and cases there cited.