Wright v. Pond ( 1834 )

Daggett, Ch. J.

The sole question presented for the decision of the court, is, whether the deed of assignment recited, be a valid instrument. I have carefully inspected it, with a view to this object. It is a well established rule of law, that a deed shall be so construed ut res magis valeat quam pereat. The court must suppose, that there was an intention in Grind-ley Harrison to transfer his property for the benefit of his creditors; and this intention must be effectuated, if possible. But there is another principle equally important. It is, that those who expound contracts and deeds, must permit the language employed to controul. If language is so used as to import nothing ; if the words, by the rules of law, are senseless ; if there is an entire uncertainty of the meaning of an instrument, or an absolute repugnancy ; the court is not at liberty to make a deed or contract such as in their judgment it ought to have been ⅜ but all that the court can do, is, to declare it void.

With these principles in view, I have reflected on this case, and have come to the result, that the assignment is void for uncertainty ; and therefore, judgment must be given for the plaintiff; for the property was not legally conveyed, when the attachment was levied. Cases have been adverted to, by the counsel for the defendant, where the court have interpolated words, where the plain intention could be collected from the whole instrument. , Thus, in a will, in Couch v. Gorham, 1 Conn. Rep. 36. the court supplied the word die in the following clause: “ If either of my said sons without issue, then,” &c. upon the manifest intent of the testator, as expressed on the whole will. The most benign interpretation is always given to a devise. So a promissory note thus expressed: “ For value received, I promise to pay to A. B. thirty-nine eleven and sixpence,” was construed to mean thirty nine pounds, eleven shillings, and six pence.

In both these cases, there was most clearly an omission of a -material word, which the court supplied, by other parts of the instrument.

It is also said, that the word and is frequently substituted for or ; and that if such a substitution is made in this deed, it will appear to be an assignment to these persons jointly, and to the same persons severally. Without adverting to the operation of the instrument, if we could so read it, it cannot be so read, without violence to the whole frame of it. There is evidently a studied use of the disjunctive or. It is thus used no less than seven times, in this short instrument. The intention was, if the conjecture may be indulged, if either of them, or if either two of them, should decline the trust, the others or the other should take the property, and execute the whole power. And were it a mere power, it might be good as such; that is, the whole three, or either of them, might act as agents; but if it be a power, it is coupled with an interest; and the question is, did any interest pass ; and if so, to whom ? That question can be answered only in the negative. The court can only compare it to a deed, assignment or grant to either of two or more persons. A deed, for example, to A. B. or C. D., a devise to one of the children of J. S., he having more than one. By all the rules of law, such a deed, or such a devise, is void for uncertainty. It is, in effect, to make an assignment to Redfield, Brintnall, and Mix; or to Redfield, or to Brintnall, or to Mix; either to all three jointly, or to some one of them alone, but in no event, to two, or to any one in particular. 4 Cruise's Dig. 206. sec. 29. Co. Litt. 20. b.

In Hobart, 313. there is a case bearing directly on the point. Demise to one, habendum by way of remainder, to the same person, and to three others in succession [successive]. The court, after long debate, and upon great consideration, held, that they [the remainder-men] cannot take but by way of remainder, which cannot be joint, because of the word successive ; and in succession they cannot take, for the uncertainty who shall begin and who shall follow.” The same doctrine is to be found, substantially, in Perk. sec. 56. 2 Prest. on Estates, 10. Com. Dig. tit. Estates by Grant. A 2. Parkhurst v. Smith, Willes, 332.

Let there be judgment for the plaintiff.

The other Judges were of the same opinion, except Petehs, J., who was absent.

Judgment for plaintiff.