Cresinger v. Lessee of Welch. deed inoperative, and void at common law; void by the concurring views of Courts in almost every State in the Union, without reference to any statutes-and void by the principles of good morals and sound policy, declared and acted on by this Court. Third: The instrument under which Welch claims, is either a mere release of an undefined interest, or an executory contract to convey; and, in either case, it is inoperative to disaffirm the prior deed, or to pass title. The preceding remarks have been made upon the hypothesis, that the instrument under which Welch claims was in due form, with apt and proper terms in the law to pass title; but upon examining it, as set forth in the Appendix, (B,) it will not be found to have that effect. In considering the deed, its different parts, the premises, recitals, habendum clause and covenant of assurance, must be taken together, and subject to these well established rules: 1. That the construction be made upon the entire deed, and not merely on disjointed parts. 2. That the general words in the premises of a deed or grant, may be corrected, restrained and explained by the context, or recitals of the deed. 5 Com. Dig. 264; Parols, A. 7. Now, it will be observed, that the premises alone do not contain any words of present grant. And they are inoperative, because, in that portion of the deed, there is no description of the subject matter to which they may apply, and, also, because they are repugnant to the context. The premises would imply an intention to convey some entire tract of land; whereas, it subsequently appears that the grantors claim only an undivided interest, as "part of William B. Lupton's legal heirs and representatives," having a "distributory share," and that they had agreed to sell, transfer and set over their estate, right, title and interest." The recitals therefore narrow, or, in the language of Comyn, restrain the general words of the premises, and import an executory agreement "to sell, assign, transfer ' and set over their estate, right, title and interest, claim and IN BANK. Dec. Term, 1846. Csesinger v. Lessee of Welch. Dec. Term, 1846. IN BANK.estate, at law and in equity." The deed contains nothing further, except the habendum clause and the covenant of further assurance; which covenant comports with, and strengthens the construction here given, as does also the habendum clause. This clause is for "the said described interest" in said lands and premises. The habendum clause may abridge or alter the generality of the premises; Hob. 171; 4 Com. Dig. 107, Fait. And the covenant for further assurance, is of "the right, title, ' estate and interest, at law and equity, which said parties hath, ' or can lawfully claim in and to said premises." The sealing and acknowledgment of the instrument, though essential to constitute a deed, yet do not aid its construction, nor change the effect of its terms. And hence what is usually termed the granting clause of the deed, being itself insufficient to pass title, for want of description of the subject matter to which the terms therein used may apply; and the remainder of the instrument containing no words of grant, but merely a recital of an agreement to sell, assign, transfer and set over an undefined interest, with a covenant to the same effect, it would seem to be a merely executory contract, and not a deed operating, upon its delivery, to vest title co instanti. At all events, it cannot be construed as any thing more than a release or quit claim of an undefined interest in the land, and could operate only upon such interest as the Luptons had at the date of its execution. Now, we have seen they had not then any interest in the land. They had a mere right of entry, or a personal right to avoid a prior deed, by which the estate had passed, and was that moment vested in the tenants holding under Kline's deed. Until this avoidance were made, the Luptons had no interest, and the right to avoid being personal, could not be purchased by, or released to Welch. But yet it is manifest from the whole instrument, that the intention was, on the one hand, for Welch to purchase, and, on the other, for the Luptons to sell, assign, transfer and set over, this very right or interest, and nothing more. Cresinger v. Lessee of Welch, Dec. Term, 1846. For it is curious to observe how carefully the instrument IN BANK. avoids the assertion of any positive or certain interest of Cyrus and William in the land, or any reference to their former deed. There is neither seizin nor warranty mentioned. It would seem from the face of the deed and William Lupton's deposition, that never having before asserted any claim to the land since the deed to Kline, they were still resolved to do no act, except receive the money Welch offered for his speculation, and let him into their rights, and to pursue them at his own hazard. He informs them of the situation of the land - he "buys the lawsuit"- he is "to do the lawing" necessary to get possession. In preparing the instrument, the Luptons seem expressly to avoid anything like a disaffirmance of their former deed, at the very time they tell Welch of its existence, without expressing any dissatisfaction- and do nothing more than suffer Welch to step into their shoes. Now whatever right they may have had to disaffirm their prior deed, that right was personal, and could not be purchased or "assigned, transferred and set over." Their release of it is therefore void, because at the time they had no assignable interest. Welch doubtless supposed that an infant's deed was void; that, therefore, they were still seized of the land, and that any instrument operating as a release or quit claim of their right and interest, would vest in him the title. If in this he has been mistaken, he has met a common fate of speculators in "lawsuits." This view is strengthened by a comparison of the two deeds, from which it will appear that the deed to Welch could not have been intended as a disaffirmance of the prior deed to Kline, but as a mere assignment, or release of some fancied, undefined and uncertain interest. Should the preceding views be correct in reference to the disaffirmance of the prior deed, or in respect to the validity of the subsequent deed as a conveyance of title, in either case the Court of Common Pleas erred in charging upon the second, third and fourth points mentioned in the bill of exceptions. Fourth: It is also claimed that there is error in the charge Cresinger v. Lessee of Welch. IN BANK. upon the remaining points herein specified, except the first, Dec. Term, which is abandoned. 1846. Upon the fifth point, the Court charged that lapse of time, less than twenty-one years, was not, of itself, evidence of acquiescence, but might be evidence in connection with other facts and circumstances. Now, the law is thus declared, in Drake and wife v. Ramsey, 5 Ohio Rep, 152: "In our opin'ion, lapse of time may frequently furnish evidence of acquiescence, and thus confirm the title; but of itself, does not take away the right to avoid until the statute of limitation takes ' effect." The right to disaffirm is taken away by any affirmance or assent after coming of age. It may exist, provided there has been no affirmance, until the period limited by the statute. Lapse of time less than that period, is no bar, but is evidence of acquiescence or assent. Whether it will be plenary proof of such assent, must depend upon the circumstances of each case. In asserting that lapse of time was not, of itself, evidence of assent, the Court of Common Pleas erred. Fifth: The Court also erred on the sixth point, assuming to say, "that retention of the purchase money, in this case, 'was not, of itself, an act demonstrating a willingness to be 'bound by the contract." It was for the jury alone to say whether a retention of the purchase money was or was not, in this case, evidence of affirmance. The question of affirmance was one of fact. The retention of the consideration was evidence of that fact, to be weighed by the jury in this case, and decided by their own judgment, as much as in any other case. And in undertaking to decide for the jury that, in this case, it was not evidence of assent, the Court assumed a province not belonging to them, and therein erred. Sixth Upon the seventh, and last point, the same error as in the fifth was committed. Silence, after coming of age, is evidence of acquiescence, whether for a day, a year, or series of years. Like lapse of time, it forms no absolute bar within less period than twenty-one years, as a general rule, although it Cresinger v. Lessee of Welch. Dec. Term, 1846. may in some case even have that effect within less period, op- IN Bank. erating by way of estoppel. But under all circumstances, it is evidence, itself, of assent. How far it may operate to establish the fact of affirmance, is for the jury to determine. The Court charged that, "silence for less than twenty-one years, 'was not, unless connected with other facts and circumstances, 'evidence of assent." The evidence from lapse of time and silence, was, by this mode of charging, substantially excluded from the consideration of the jury, who were thereby misled, and a verdict secured to the plaintiff in ejectment. For these errors the Supreme Court is asked to reverse the judgment. James Mason and A. L. Brewer, for Defendant in Error. First: The first point made by the bill of exceptions being abandoned, we are relieved from its discussion. Second: The deed to Welch is not void on the ground of maintenance. If the question, how far the English statutes against champerty and maintenance, or the common law doctrine in relation to such acts, are applicable to our laws, customs and institutions, was unsettled in this State, we should feel called upon to enter more fully into the discussion of this question. In some of the States, statutes have been passed prohibiting such acts. In some other States, no prohibiting statutes have been passed, but the common law doctrine has been expressly recognized and adopted by their tribunals. In other States, the common law doctrine is not recognized, and no statutes upon the subject have been passed. In the State of New York, the statute of 32 Henry VIII was reenacted, almost in its very words. By this statute, the parties were made liable to forfeiture, and the conveyance was |