1872 ORME'S CASE. have been in actual possession, in the sense in which those words "actual possession " are ordinarily understood. The first of the se was Murray v. Thorniley (1), where, after much consideration, the Court unanimously came to the decision that that was the proper construction of the statute as applied to rent-charges. The same point arose again in Hayden v. Twerton. (2) In that case the party claiming to be registered was the assignee of a rent-charge. The matter was again carefully considered, and the Court held that the case was governed by the decision in Murray v. Thorni ley. (1) It is true that Maule, J., in giving judgment there, did refer to some of the grounds upon which the previous decision was founded, and stated that he was not prepared to say that he should have come to the same conclusion as the Court came to in that case; but he concurred with the rest of the Court in confirming the principle on which it was decided. Now, after those two decisions, I think it is hopeless for the respondents in this case to contend that we are not bound by what has been treated as the law ever since the year 1846, viz. that the possession of a rent-charge, to satisfy the Reform Act, must be a possession in fact. The question afterwards arose in a different form. In Heelis v. Blain (3), a new view of the matter was suggested, viz. that when the grant of the rent-charge did not take effect at common law, but by the Statute of Uses, 27 Hen. 8, c. 10, the statute executed the use in possession; and so the grantee became at once in actual possession. The case was argued entirely upon that footing. The rent-charge there undoubtedly came within the statute, and it was held that the person to whose use the grantee was seised was by the effect of the Statute of Uses to be deemed to be in possession of the rent-charge so as to satisfy the words "actual possession" in s. 26 of the Reform Act. So far from dissenting from the previous cases of Murray v. Thorniley (1) and Hayden v. Twerton (2), the Court expressly adopt them, and hold that the possession to satisfy s. 26 must be an actual possession: but they came to the conclusion that the claimant in the case then before (1) 2 C. B. 217; 15 L. J. (C.P.) 155. (3) 18 C. B. (N.S.) 90; 34 L. J. (C.P.) 88. them was to be deemed to have been in such actual possession by the operation of the Statute of Uses. Assuming these cases to have been correctly decided, there are, then, two classes of cases,-one, where the grant of the rent-charge takes effect at common law, in which case the grantee or assignee must have been in the actual possession by receipt of the rent in order to be entitled to be registered,-the other, where the grant of the rent-charge operates by virtue of the Statute of Uses, in which case it has been held that the cestui que use is at once to be deemed in actual possession, within the meaning of the Reform Act. That brings us to the question whether the grant of the rent-charge in the case now before us operates at common law or under the Statute of Uses. The subject is one of interest to conveyancers, and one which may have a material effect on titles, and therefore we thought it right to adjourn the argument in order to give counsel an opportunity to look more fully into the authorities. The matter has now been very ably argued, and the points have been very clearly put. Our first duty is to ascertain what is the true legal effect of the limitations in the deed granting this rent-charge. It commences by granting to Orme, Lawton, and Kerfoot, a perpetual yearly rent-charge of 97. If it had stopped there, that would have been a grant to the three as joint-tenants. The deed, however, proceeds in the habendum, "to hold the said rent-charge unto Orme, Lawton, and Kerfoot, their heirs and assigns, to the use of the said Orme, Lawton, and Kerfoot, their heirs and assigns for ever, as tenants in common, and in equal shares." If the terms of the habendum be divided, there would be a grant to the three persons as joint-tenants, and a limitation of the use to them as tenants in common. Now, is the deed to be so read? or is the whole to be read together for the purpose of ascertaining what is the true limitation? The office of the habendum, according to 1 Sheppard's Touchstone, p. 101, is to determine the effect of the deed, and it should" be construed as near the intent of the parties as may be." In order to ascertain the intention of the parties, it is necessary that the whole deed should be looked at; and, if that be done in the present case, there can be no doubt that the intention of the parties was that the grant of the rent-charge 1872 ORME'S CASE. 1872 should be to the three as tenants in common. That the rule ORME'S CASE. is as I have stated, there are many instances in the books to prove. In Co. Litt. 183. b., it is said: "If a lease be made to two, habendum to the one for life, the remainder to the other for life, this doth alter the general intendment of the premises; and so hath it been oftentimes resolved. And so it is if a lease be made to two, habendum the one moiety to the one and the other moiety to the other, the habendum doth make them tenants in common and so one part of the deed doth explain the other, and no repugnancy between them, et semper expressum facit cessare tacitum." Many other instances, which it is unnecessary to go through in detail, are to be found in Viner's Abridgment, Grant (I. a.), pl. 3, and Sheppard's Touchstone, pp. 101-106. Now, in order to shew what is the true effect of a deed of this description, several authorities have been referred to; and, amongst those cited on the part of the respondents, was the case of Jenkins v. Young (1), more fully reported under the name of Meredith v. Jones. (2) That case is thus stated in Sanders on Uses, p. 91: M. gave his land to E. R. and his wife, habendum to the said baron and feme, to the use of them and the heirs of their two bodies, and, for want of such issue, remainder to E. M. and his heirs the question was whether the baron and feme had an estatetail or an estate for their lives only. It was argued that the estate out of which the use should arise was an estate for their lives, and the use could not make the estate larger than the limitation of the seisin; but the judges conceived that there was a difference where an estate was limited to one and the use to a stranger, for there the use should not be more than the estate out of which it was derived; but not when the limitation was to two, habendum to them, to the use of them and the heirs of their bodies, for this was no limitation of the use, nor was it executed by the statute, but it was a limitation of the estate to them and the heirs of their bodies by the course of the common law." That case is also important as shewing that we must look at the whole of the habendum to see what was the intention of the parties. So construing it, it was held to be not a limitation of the use, but a limitation of the estate which took effect by the common law. It (1) Cro. Car. 230. (2) Cro. Car. 244. 1872 is extremely difficult, if this be the right view of that case, to distinguish it in principle from the present. In that sense it ORME'S CASE. is that the case is adopted by Mr. Booth in the Collection of Cases and Opinions, Vol. 2, p. 291, edit. by Sugden. That learned author very clearly explains that the use must be derived out of the seisin of some third person. The case is referred to by Sanders without disapprobation; as also by Mr. Butler in his Notes to Co. Litt. 271. b., and in Watkins on Conveyancing, p. 245; and it has been acted upon as law by conveyancers for a long series of years. Is there, then, any reason why we should not adopt the same view in construing the limitation of 'the rent-charge in the present case? If we were to do otherwise, the result would be a repugnancy between one part of the deed and another part, because then, in the one part the limitation would be to the three persons as joint tenants, and in the other part it would be to them as tenants in common, which clearly would not be carrying out the intention of the parties. The rule was, shortly after the passing of the statute, thus laid down by Bacon, in his Reading upon the Statute of Uses, p. 65, edit. of 1806: "The whole scope of the statute was to remit the common law, and never to intermeddle where the common law executed an estate; therefore, the statute ought to be expounded that, where the party seised to the use and the cestui que use is one person, he never taketh by the statute, except there be a direct impossibility or impertinency for the use to take effect by the common law." Suppose the question had arisen here, without reference to the Statute of Uses, as to what was the true construction of the limitation, could any one have doubted that the object and effect of the deed were that the three persons named should take the rentcharge as tenants in common? If so, the Statute of Uses cannot alter the common-law construction of the deed. The case of Doe v. Prestwidge (1) has also an important bearing upon this question, as shewing that the whole limitation in the habendum is to be taken together, and a rational interpretation to be put upon it. There, the limitation was to Thomas and Henry and their heirs, habendum to them, their heirs and assigns, as tenants in common, (1) 4 M. & S. 178. and not as joint-tenants, to the only proper and absolute use and ORME'S CASE. behoof of them, their heirs and assigns for ever. There was, 1872 therefore, a difference between the two parts of the habendum, the limitation of the use being such as to create a joint-tenancy. The matter was argued, and further time was given to Reader, the counsel for the plaintiff, to consider it; and upon a subsequent day, "he admitted that Thomas and Henry took as tenants in common,” "although, if it had been an use executed by the statute, the consequence would be that they were joint-tenants." That case is cited by various text-writers; and I do not find that it is questioned by any of them, except that in 3 Bythewood and Jarman's Conveyancing, p. 324, the learned editor (Sweet) says: "This was certainly admitting the principle to a great extent, and it seems that there was ample room for argument." That room has been afforded here, and the result shews that there is no authority to contradict it. There is also an important passage in the 7th edition of Sheppard's Touchstone, by Preston, at p. 106, where that very great conveyancer says: "But, if a grant be made to a man and his heirs, habendum to him and his heirs, to the use of him and his heirs for lives, this habendum and declaration of use are one entire limitation at the common law, and the grantee hath merely an estate for the lives," which passage is very applicable to the present case. It is, indeed, only acting upon the general rule of construction of a deed, which is, that, in order to ascertain the intention of the grantor, regard must be had to the whole of the instrument, and especially of the habendum. So dealing with the deed in the present case, the effect of it seems to me to be that the three persons named take the rent-charge as tenants in common. Each takes a legal estate in an undivided third part of the rent; and, no third party intervening, there is nothing for the Statute of Uses to operate upon. The party claiming, therefore, taking by force of the common law, the case is entirely out of the operation of the Statute of Uses. Consequently, it cannot come within the decision in Heelis v. Blain (1), but is governed by the two previous cases of Murray v. Thorniley (2) and Hayden v. Twerton. (3) (1) 18 C. B. (N.S.) 90; 34 L. J. (C.P.) 88. (2) 2 C. B. 217; 15 L. J. (C.P.) 155. (3) 4 C. B. 1; 16 L. J. (C.P.) 88. |