Of the ordinary RULES of INTERPRETATION. The general intention, to be collected from the whole context, and every part of a written instrument, is always to be preferred to the particular expression. (1) "Every deed," observes Hobart, C. J., "ought to be construed according to the intention of the parties, and the intent ought to be adjudged of the several parts of a deed as a general issue out of the evidence, and ought to be picked out of every part, and not out of one word only;" and such a construction should be put upon particular words as will best answer and effectuate the apparent general intention, (m)" ex antecedentibus et consequentibus optima fit interpretatio, nam turpis est pars quæ cum suo toto non convenit." Parol evidence to explain the meaning of doubtful expressions and figures, and terms of art.—If the language of a written document is such as the courts do not understand, if it is written in cypher (n) or in a foreign tongue, or the parties have used technical terms and words of art, unintelligible to the ordinary reader, but having a clear, distinct, and definite meaning amongst mechanics or merchants, extrinsic evidence of such meaning may be given in aid of the interpretation of the deed, and to give the words their proper and known signification. (0) Bad spelling will not avoid a deed, so long as it appears with certainty what is meant. "Threty" pounds means thirty pounds, and "scutene" seventeen, &c. (p) In construing a will it has been said, "If a man has habitually called certain persons or things by peculiar names by which they are not commonly known, and these words occur in a will executed by him, they may be explained and construed by evidence to show the sense in which he was in the habit of using them, in like manner, as if his will were written in cypher or in a foreign language," (q) such evidence being necessary to enable us to put the true construction and meaning upon the peculiar words and form of expression which have been selected by the writer as the vehicle of his intention. Interpretation of the contract in connexion with surrounding circum (1) Willes, C. J., Parkhurst v. Smith, Willes, 332; Co. Litt. 217 b.; 1 Plowd. 160; 2 B. & P. 22, 27; 3 T. R. 470; Lutw. 196. Domat's Civil Law, 1. 1 tit. 1, § 2, xi. (m) Hobart, C. J., Winch 93; 15 East 541; 6 M. & S. 12; 1 T. R. 703; 4 Taunt. 847. (n) Daintree v. Hutchinson, 10 M. & W. 89. (0) Goblett v. Beechy, 3 Sim. 24. Clayton v. Lord Nugent, 13 Law J., N. S. Excheq. 365. (q) Ld. Abinger, C. B., Doe v. Hiscocks, 5 M. & W. 363. Doe dem. Beach v. Lord Jersey, 3 B. & C. 870. Wigram on Extrinsic Evidence. Parke, B., Shore v. Wilson, 9 Cl. & Fin., p. 555. 556. Tindal. C. J., ib. p. 566, 567. stances.—To enable us also to arrive at the real intention of the parties, and to make a correct application of the words and language of the contract to the subject matter thereof, and the objects professed to be described, all the surrounding facts and circumstances may be taken into consideration. "The law does not deny to the reader the same light and information that the writer enjoyed; he may acquaint himself with the persons and circumstances that are the subjects of the allusions and statements in the written instrument, and is entitled to place himself in the same situation as the party who made the contract, to view the circumstances as he viewed them, and so judge of the meaning of the words and of the correct application of the language professed to be described. (r) Many words in our language are susceptible of various meanings, according to the subject matter to which they are applied, or the situation of the parties by whom they are used, and they should consequently be construed secundum subjectam materiem. (s) A lease had been made by the plaintiff to the defendant, of part of a messuage, together with a piece of ground thereunto adjoining. This piece of ground was used as a yard, and beneath the surface thereof, was a cellar occupied by a third party under a lease previously granted to him by the plaintiff. The occupant of the cellar continued to reside in it, and to pay rent to the plaintiff for three or four years after the latter had demised the yard to the defendant, but his lease having expired, and he having quitted the cellar, the defendant took possession of it, contending that the cellar had passed to him by the demise of the yard, upon the maxim of the common law, cujus est solum ejus est usque ad cælum et ad inferos, and that the plaintiff was estopped from introducing parol evidence to control or qualify the operation of the lease; but the court held that parol evidence of the surrounding circumstances might properly be brought in aid of the construction and interpretation of the lease. "The only question," observes Ashurst, J., "is, whether the court are absolutely bound by the terms of this lease to put the construction upon it for which the defendant contends, Primâ facie, indeed, the property in the cellar would pass by the demise, but that might be regulated and explained by circumstances, and it seems to me that the construction of all deeds must be made with reference to their subject matter, and it may be necessary to put a different construction upon leases made in populous cities from that on those made in the country; we know that in London (r) Shore v. Wilson, 9 Cl. & Fin. 555, 569; 5 M. & W. 367, 368; 5 Moor, 406, 457; 1 Myl. & K. 602. (s) 4 N. & M. 606; 3 B. & Ald. 642. different persons have several freeholds over the same spot, and that different parts of the same house are let out to different people.” (t) Latent ambiguity.-From the admission of such evidence, and from bringing the words of the written instrument into contact with surrounding circumstances, a doubt sometimes arises as to the correct application of the language and words used to the subject matter of the contract and the objects professed to be described; this is called a latent ambiguity, because it is not apparent upon the face of the contract, but arises from the application of the words to the objects to which they refer. As this difficulty or ambiguity is introduced solely by the admission of extrinsic evidence of surrounding circumstances, it may be rebutted and removed by the production of further evidence of the identity of the objects described, in accordance with the ancient maxim, "ambiguitas verborum latens verificatione suppletur; nam quod ex facto oritur ambiguum verificatione facti tollitur." (u) 66 This may be illustrated and exemplified by a case analogous to the one mentioned by Pothier. 'You rent of me an apartment in a house the remainder of which is occupied by myself. I make you a new lease in these terms: 'I agree to let, and A B agrees to occupy, my house in Frederick Street, for the term of two years from the date hereof, at the annual rent of 201." Any one on reading this agreement would imagine that the whole house was intended to be demised, but when evidence of extrinsic circumstances is admitted, for the purpose of applying the language of the contract to the subject matter thereof, a doubt at once arises, whether it was intended that you should have the whole house or the mere apartment which you had previously occupied; and this doubt, which is suggested purely by extrinsic evidence of the relative situations and circumstances of the parties at the time of the making of the contract, may be removed by parol evidence of other circumstances calculated to explain the sense in which the words were used, and to give them a correct application. The written instrument may also, on the face of it, be perfectly intelligible, and free from all doubt and obscurity, but from some of the circumstances admitted in proof, an ambiguity arises, as to which of two or more things, or which of two or more persons, each answering the words of the writing, the parties intended to designate. There may, for example, be two estates, or two persons of the same name and description, and the (t) Doe v. Burt, 1 T. R. 703. Press v. Parker, 19 Moore, 158. Wigram on extrinsic evidence, 39, 58, 2nd edition. The King v. Lain don, 8 T. R. 379. (u) Tindal, C. J., Miller v. Travers, 1 M. & Sc. 345. Bac, max. 23. words may equally apply to either. This doubt or difficulty, which has been created by parol evidence, may be removed by further evidence of a like character, calculated to explain which of the estates or persons is embraced by the description in the written instrument. (a) But the evidence, when introduced, must have the effect of rendering the words and language of the document certain and manifest, and must leave no doubt as to the correct application of them, and the precise object to which they were intended to refer; (y) for parol evidence is inadmissible to ascertain and establish the intention as an independent fact. The judgment of the court in expounding a deed, must be simply declaratory of what is in the deed, it has to ascertain, not what the party intended, as contradistinguished from what the words express, but what is the meaning of the words he has used.(z) And" when the words of any written instrument are free from ambiguity in themselves, and where external circumstances do not create any doubt or difficulty, as to the proper application of those words to claimants under the instrument, or the subject matter to which the instrument relates, such instrument is always to be construed according to the strict plain and common meaning of the words themselves; and evidence dehors the instrument for the purpose of explaining it according to the surmised or alleged intention of the parties, is utterly inadmissible. If it were otherwise, no lawyer would be safe in advising upon the construction of a written instrument, nor any party in taking under it, for the ablest advice might be controlled and the clearest title undermined, if at some future period, parol evidence of the particular meaning which the party affixed to his words, or of his secret intention in making the instrument, or of the objects he meant to take benefit under it, might be set up to contradict, or vary, the plain language of the instrument itself.” (a) Latent ambiguity of intention.—And where, by an ambiguity patent on the face of the instrument, the intention of the parties is left in doubt, parol evidence is inadmissible to remove it. (b) If a blank, for instance, has been left in a deed or will, or an important clause or word has been omitted by mistake, and it is doubtful what word was intended to have been used, the defect cannot be cured by extrinsic evidence of what was intended to be inserted. (c) A devise to one of the sons of J. S., who has several sons, is void (x) Cheney's case, 5 Co. 68, b. Doe v. Needs, 2 M. & W. 140, 141. Doe v. Hiscocks, 5 M. & W. 368, 369; Wigram, p. 86, 88. (y) Thomas v. Thomas, 6 T. R. 676. (2) 13 Law J., N. S. (Excheq.) 365; 14 ib. 48, 70, 73; ib. Q. B. 54. (a) Tindal, C. J., 9 Cl. & Fin. p. 565, 566. (b) Tindal, C. J., 7 Sc. 415; 431. Parke, B., 2 M. & W. 139. Bing. N. S. (c) 2 Atk. 239; 3 Atk. 257; 3 Br. C. C. 311; 5 Mad. 364; 8 Vin. Abr. 188 (G). by reason of the patent ambiguity and uncertainty of intention manifest upon the face of the instrument. (d) There is in such a case no doubt as to the particular meaning of the words used; the uncertainty which exists is in the mind of the writer, who, at the time of the making the devise, had evidently not finally fixed on any certain person as the object of his bounty. There is no cure for such a defect, for extrinsic evidence of intention cannot be admitted, even in the case of a will, if the effect of it will be to add new terms to the written instrument, or prove an intention not to be collected from the language and words thereof. Evidence merely explanatory of what the party has written is admissible, but not to show what he intended to have written. To admit parol or oral testimony, for the purpose of establishing an intention not manifest in a deed, and not to be collected from any construction that can fairly be put upon the language and words used therein, would be to give to such evidence the superior force of written evidence under seal, and would cause those rights to be created, and those estates and interests to pass by parol, which can only lawfully be created and passed by deed, for it is plain that the parol evidence, and not the writing under seal, would in such a case have the definite effect, and constitute the grant, assignment, or contract. (e) Of inferences drawn to effectuate an obvious intention and sustain the contract.--But if the ambiguity is not an ambiguity of intention, but arises simply from an imperfect expression of the meaning of the party, and can be resolved by reference to the general context of the instrument when brought into contact with surrounding circumstances, the court will aid the imperfect expression in favour of the manifest intention, and will draw all such plain and reasonable inferences from the language and general context of the deed, as appear to be necessary to give effect to the obvious meaning, and to carry into execution any matter or act clearly contemplated and intended to be done. Thus, where a lease under seal recited an agreement made by a lessee, with the lessor to pull down an old smelting mill and build another of larger dimensions, and contained an express covenant to keep such new mill in repair, and so leave it at the expiration of the term, but did not contain a covenant to build the mill, it was held, that such a covenant was to be implied from the import of the whole deed, and that an action of covenant might conse (d) Strode v. Russel, 2 Vern. 624. Richardson v. Watson, 4 B. & Ad. 787. (e) Divinatio non interpretatio est quæ omnino recedit a literâ. Bac.tracts, fol. 47; 1 M. & Sc. 347; 9 Cl. & Fin. 555, 556; 13 M. & W. 200. |