No. 17. Goodtitle d. Dodwell v. Gibbs, 5 Barn. & Cress. 711–713. sons of the body of the said John Westbrook the younger, lawfully to be begotten severally and successively, and the heirs male of the body of such first and other sons lawfully issuing; and for want of such issue, to the use and behoof of Hatton, the daughter of the said John Westbrook the elder, and Anna his wife, her heirs and assigns for ever. And the said Martha Hatton covenanted for further assurance of the said freehold and copyhold premises to the uses aforesaid, but no surrender was made of the copyhold lands to the uses aforesaid. The lessor of the plaintiff was the daughter of Hatton (the daughter of John Westbrook and Anna his wife), by Henry Dodwell, her husband. * John Westbrook the elder and John Westbrook the [*712] younger suffered a recovery in 1774; but it was admitted that it did not bar the remainder given to Hatton Westbrook by the release of 1768, the only question raised being as to the validity of that deed. The case was argued on a former day in this term by Coote for the lessor of the plaintiff. The question turns upon the habendum in the deed bearing date the 29th of July, 1768. It is contended that the habendum gave an estate of freehold in futuro, and is therefore void. In the granting part, the estate given to J. W. the elder is express and certain; it is to him, his heirs and assigns; then follows the habendum, " to hold the same unto the said J. W. the elder, his heirs and assigns, from and immediately after the decease of the said Martha Hatton, to, for, and upon the several uses, ends, intents, and purposes hereinafter mentioned," &c. Now the habendum may very fairly be read with a stop after the words " heirs and assigns." If so, the grant would be immediate, although certain uses might arise in futuro. But an habendum is not an essential part of a deed (Shep. Touch. 76), and if it is repugnant to the granting part it must be rejected. There are, indeed, cases apparently warranting a different conclusion; but upon examination it will be found that they are distinguishable from the present case. The rule is this: if an estate be granted in any premises, and that grant is express and certain, the habendum shall not vitiate it, for utile per inutile non vitiatur. But if the estate granted in the * premises be not express, but arising by implication of [*713] law, there a void habendum, or one differing materially from the grant, may defeat it. Shep. Touch. 112; Baldwin's No. 17. Goodtitle d. Dodwell v. Gibbs, 5 Barn. & Cress. 713, 714. Case, 2 Co. Rep. 23; Stukeley v. Butler, Hob. 168; and Carter v. Madgwick, 3 Lev. 339, which last case is expressly in point for the present lessor of the plaintiff. It is true that in Buckler's Case, 2 Co. Rep. 55, where tenant for life, having made a lease for years, granted tenementa prædicta to C. habendum, from the feast of the Nativity of Saint John the Baptist next following, for life, the grant was held void, for that an estate of freehold cannot commence in futuro. But there it was observed that the habendum was not contrary to the premises, for no certain estate was contained in the premises, but generally the land given and granted, which might be qualified by the habendum to an estate for years or at will. And in Hogg v. Cross, Cro. Eliz. 254, where an habendum for an estate of freehold in futuro was held to make the grant void, the Court proceeded upon the ground that it was the purport of the deed that nothing should pass till after the death of the grantor, and that nothing should pass but according to the intent; which rule has been adopted in many modern. cases. Roe v. Tranmer, 2 Wills. 75; Osmond v. Sheafe, 3 Lev. 370. In Underhay v. Underhay (cited in Hob. 171, Cro. Eliz. 269), one, having leased his land to three for their lives, granted the reversion habendum to the grantee for his life, and then added, "which said estate for life is to begin after the death of the three first lessees," and that was adjudged a good estate in reversion for life. Thus, then, it appears that there is no [*714] * objection to the granting part of this deed by the common law; secondly, there is no objection to the limitation of uses. The greatest effect produced by the Statute of Uses is, that by its operation the legal estate of freehold passes in futuro ; for there is no doubt that a limitation by way of springing use is good, provided the event whereupon the use is to arise is to happen within what the law considers a reasonable time; that is, a life or lives in being and twenty-one years after, which appears to have been the case in Davis v. Speed, 2 Salk. 676, Roe v. Tranmer, Osman v. Sheafe, and Pybus v. Mitford, 1 Ventr. 372. Preston, contra. If the objection that the conveyance is of a freehold in futuro, and therefore void, be well founded, the uses cannot arise, debile fundamentum fallit opus. In all the cases which have been cited, it was held that the conveyance operated as a covenant to stand seised. The only case in point cited for No. 17. Goodtitle d. Dodwell v. Gibbs, 5 Barn. & Cress. 714, 715. the plaintiff was Carter v. Madgwick; but that is not found in any other reporter but Levinz, although nearly all the other cases in that book are: it does not appear to have been ever quoted or relied upon by any Judge, and is contrary to every principle of law, and every rule applied to the exposition of deeds. The case was thus: "Parker seised in fee, by indenture between him and J. B. his grandson, the lessor, in consideration of affection and 5s., granted, bargained, and sold to the lessor and his heirs the tenements in question, habendum, immediately after his death, to the lessor and the heirs male of his body," with divers remainders over; and the Court, by their judgment, that the estate passed immediately by the premises, made that a [*715] fee which was intended to be an estate tail, and made that * a grant of the estate immediately which was intended to be a grant in futuro, reserving a life estate to the grantor. It might have been good as a covenant to stand seised; but the Court did not avail themselves of that doctrine, as in Osman v. Sheafe. The habendum certainly is not essential to a deed; but when inserted, it is most essential, unless it be absolutely repugnant to the granting part. Stukeley v. Butler, and the other cases in which it has been held that if there be a grant of an express estate, followed by an habendum repugnant to that grant, the habendum is void, may be admitted; but the question has always turned upon the repugnancy. Thus where a grant is to A. and his heirs, habendum for the life of A., that is clearly repugnant. Plowd. 153. [BAYLEY, J.-If the deed be read with a stop after "habendum unto J. W., his heirs and assigns," then nothing is postponed but the use; the seisin is given immediately.] The deed must be read as if it had been made before the Statute of Uses. Putting the uses out of view, the conveyance is to A. and his heirs, habendum in futuro. The declaration of uses does not commence until after the habendum is closed. Braine v. Deakon, Preston on Estates, 229. It is admitted that the habendum may control the grant where the estate is not express; it may be a grant in fee or in tail, in præsenti or in futuro, and that is to be explained by the habendum. 2 Roll. Abr. Grant, p. 68.2 Here the estate granted is not express; it is to A. and his heirs; 1 It is found in Com. Dig. tit. Fait (E may be restrained by the habendum to the 10). heirs of the body. Thurman's Case, 2 Roll. 2 Thus, a grant to "A. and his heirs " Abr. Grant, K. pl. 24. No. 17. -Goodtitle d. Dodwell v. Gibbs, 5 Barn. & Cress. 716, 717. * [*716] but they were intended to take in the particular mode pointed out by the habendum. Cur. adv. vult. ABBOTT, Ch. J., now delivered the judgment of the Court. This came before the Court upon a special case, which was argued during the present term. The only question raised was upon the validity of a deed executed by Martha Hatton, as to the freehold tenements therein mentioned. After stating the facts of the case, the LORD CHIEF JUSTICE proceeded as follows: The objection made to the validity of the deed was that it is a grant of a freehold to commence in futuro; and if this be its true effect it is undoubtedly void. The question whether this be its true effect depends upon the operation of the habendum. If the habendum is to be considered as the operating part of the deed, the deed will be an attempt to convey a freehold in futuro. If the part called the premises be the operating part, and the habendum can be rejected, or considered only as qualifying the premises, a present freehold will pass, and the deed will be good. Many cases were quoted in the argument, to which it is not necessary to advert again. The distinction as to the effect of the habendum between deeds in which the premises expressly mention an estate or interest, and those in which the premises merely describe the tenements, but do not mention any estate or interest, was noted and relied upon, and it was contended that in the deed in question the premises do mention an estate and interest (as we think they do), and the case of Carter v. Madgwick, 3 Lev. 339, was quoted as being directly in point to the present case. The distinction to which I allude is this: If no estate be mentioned in the premises, the grantee will take nothing under that part of the deed, except by implication and presumption of law, but if an habendum follow, the intention of the parties as to the estate to be conveyed will be found in the habendum, and, consequently, no implication or presumption of law can be made, and if the intention so expressed be contrary to the rules of law, the intention cannot take effect, and the deed will be void. On the other hand, if an estate and interest be mentioned in the premises, the intention of the parties is shown, and the deed may be effectual without any habendum, and if an habendum follow which is repugnant to the premises, or contrary to the rules of law, and incapable of a construction consistent with [* 717] No. 17. - Goodtitle d. Dodwell v. Gibbs, 5 Barn. & Cress. 717, 718. either, the habendum shall be rejected, and the deed stand good upon the premises. The case of Jarman [*718] This was done in Carter v. Madgwick; and the very learned gentleman who argued for the defendant, and against the validity of the deed, observed that that case was a solitary decision, never quoted or relied upon, and contrary to law, as it gave an immediate estate to the grantee, whereas the grantor manifestly intended to reserve a life estate to himself. Perhaps so much of the opinion of the Court as regards the exclusion of a life estate in the grantor may be found to have been expressed, without sufficiently adverting to the operation of the Statute of Uses, and to a construction that might have been given to the deed so as to allow a life estate. The grantor had, in fact, enjoyed, during life, in that case as in the present. But the case of Carter v. Madgwick is not a solitary decision. v. Orchard, Skin. 528, Salk. 346, to the same effect. In that case, Thomas Nicholas, being possessed of a barn, cottage, and land, as assignee of a lease for one thousand years, did, by indenture reciting the lease, and expressed to be in consideration of natural love to his granddaughter, and for other good causes and considerations, grant, assign, and set over to his granddaughter Mary, her executors, administrators, and assigns, all the said cottage, barn, and lands, and all other the premises thereinbefore recited, together with the recited lease, and all writings and evidences touching the premises, habendum the said cottage, &c., to the said Mary, her executors, administrators, and assigns, from and after the decease of the said Thomas Nicholas and his wife, for the residue of the term, subject to the rent and covenants. Now if this deed was considered as an assignment to commence and take effect after the death of T. Nicholas, the deed would be void, as in law assigning nothing, the life interest of T. Nicholas being deemed in law to be of greater value and longer duration than any term of years. And it was contended that the deed could only be construed as such an assignment, because it appeared that T. N. did not mean to part with his interest in the term during his own life. The question arose after the death of T. N. In the King's Bench judgment was given against the validity of the deed; but that judgment was reversed in the Exchequer Chamber, and the reversal affirmed in Parliament. And the ground of the reversal was, that |