wards (d); but it appeared that all the covenants except the one upon which judgment had been obtained at law, were restrained to the acts of the vendor, and that the vendor sold only such estate as he had.

This last case was quoted in a case in the Common Pleas before Lord Eldon (e), who thought the decision must have been made on the ground of the intent of the parties appearing on the instrument, since that intent, and the consequent legal effect of the instrument could only be collected from the instrument itself, and not from any thing dehors, In a still later case in the same court (), Lord Alvanley thought, under the circumstances of the case, that the application was made to the court of Chancery to correct the mistake, in the same manner as applications are made to that court to correct marriage articles where clauses are inserted contrary to the intent of the parties. It seems clear, however, that the relief in this case was founded on parol evidence that the vendor sold only such estate as he had, corroborated as it was by the form of the deed and the subject of the contract. Such evidence was received in the prior case of Dr. Coldcot and Serjeant Hide, and is still clearly admissible,

Thus in Young v. Young (g), the plaintiff married Lucy, a defendant, and an infant; the husband stated, or drew by way of instructions to his attorney, what the wife's fortune then was, and agreed to add as much to be settled in strict settlement, and likewise stated that the intended wife had a prospect of an additional fortune; to which he agreed provided it did, not exceed 1,000l., to to be likewise settled strictly, and

add a like sum

(d) Fielder v.Studley, Finch, 90. (e) Browning v. Wright, 2 Bos. and Pull. 26.

(f) Hesse v. Stevenson, 3 Bos.

L

and Pull. 575.

(g) 1 Dick. 295, cited; see 1 Dick. 303, 301.

he

he to have the excess. The settlement was prepared according to the instructions; but the solicitor having. in the margin of the draft, added double the sum, the settlement was prepared and executed according to that mistake. Parol evidence was admitted to prove the mistake; that is, the settlement was first shewn to differ from the written instructions, and parol evidence of the counsel and attorney was then received, to prove the mistake.

This equity was administered in the case of Thomas v. Davis before cited (h), where it clearly appeared, that the estate in question was not intended to be comprehended in the general words. This appeared from many circumstances, but particularly from the description of the estate, given by the husband to the attorney by way of instructions, which described the lands particularly, and did not include Rigman Hill; and the attorney proved that he did not know of this estate, and that he introduced general words, merely to guard against any wrong or imperfect description of the lands actually intended to pass. It was objected, that the admission of the attorney's evidence was in direct contradiction to the statute of frauds; but Sir Thomas Clarke was clear it might be read, and accordingly admitted it (I.)

So in Rogers v. Earl (), instructions were given, previously

(h) supra, p. 137, 1 Dick. 301, Reg. Lib. B. 1757, fol. 33, 34.

(i) 1 Dick. 294. Note the facts are not stated in the report; they are extracted from the Register's book; see Reg. Lib. B. 1756, fol.

205; see Pritchard v Quinchant, Ambl. 147; 5 Ves. Jun. 596, n. (a) and Barstow v. Kilvington, 5 Ves. Jun. 593; and see Nelson v. Nelson, Nels, Cha. Rep. 7; Shaw v. Jakeman, 4 East, 201.

After ad

(I) The judgment is very inaccurately stated in the report. dressing himself to the general words, the Master of the Rolls is stated to have said, Do these words comprise Redmond [Rigman] Hill? I do

not

viously to marriage, for a settlement of the wife's estate on the husband, during his life, if he and his wife should so long live, remainder to the wife for life, remainder to the issue of the marriage in strict settlement, remainder to such uses as the wife should appoint; and a draft of a settlement was drawn accordingly. And after the limitation to the husband it stood thus: And immediately after the decease of the husband, then to the wife, &c.; and proper limitations were inserted to trustees to preserve contingent remainders. When the wife saw the draft, thinking she was past child-bearing, she objected to the limitations to the issue, and they were directed to be struck out. The Attorney, by mistake, not only struck out those limitatious, but also the limitation to the wife, for life, and the subsequent limitation to trustees to preserve, and the deed was executed without the mistake being discovered, whereby, as the bill stated, the said power for appointing the reversion of the premises was made to take place on the decease of the plaintiff generally, though the limitation to him was only during the joint lives. The wife exercised her power by deed, in favour of her husband during his life, and then by will gave him the fee, and then died in his life time. Her heir at law insisted that the use resulted to him during the husband's life, and that there being no trustee to preserve contingent remainders, the devise in the will as an execution of the power not taking into effect till the determination of the parti cular estate was void, and brought an ejectment against

not think they do include Redmond Hill; but other words do. If Redmond Hill was not intended, why was the wife to join; and why did she join? This is absolute nonsense. The wife joined because she was in terested in the settled estates; and the opinion of the court was, that the general words did include Rigman Hill. The editor's marginal ab, stract of this case shows how difficult it is to understand the report of it, L 2 the

the husband, and obtained a verdict (I). The husband then filed a bill for an injunction, and to rectify the mistake in the settlement. The defendant, by his answer, urged that the draft of the settlement might have been altered with a view to support the husband's claim, and insisted that parol evidence could not be received; but Sir Thomas Clarke decreed, that the power appeared to have been designed so far to extend as to enable her to dispose of the interests in the estates after the determination of the coverture, and during the life of her husband, as well as to dispose of the inheritance of the estates after her husband's decease, and ordered the settlement to be rectified accordingly; but without costs on either side.

In the last case upon this subject(), a conveyance of a portion of Church tythes upon a purchase was made, contrary to what was considered to be the true construction of the written agreement; subject to a proportion of the rent reserved by the lease of the tythes, and upon proof that this was done, by the mistake of the purchaser's attorney, and that the rent had not been demanded for several years; the deed was after the lapse of several years, rectified and made conformable to the written agreement.

If a settlement be made contrary to the intention of the parties, merely to prevent a forfeiture, (II), parol evidence

(k) Rob. v, Butterwick, 2 Price, 190.

is

(1) The first point at least was clear at law, but the defendant set up an old term as a bar to the plaintiff's right to recover. The defence, however, did not succeed. See Farmer, dem. Earl v. Rogers, 2 Wils. 26.

(II) In this case the settlement was to prevent the estate from being sequestered on account of the husband having been in arms for Charles the First. The decree was made in the reign of James his son. So that

is admissible of the real intent of the parties (1), and the settlement will be rectified in conformity with it.

Where parties omit any provision in a deed, on the impression of its being illegal, and trust to each other's honour, they must rely upon that, and cannot require the defect to be supplied by parol evidence.

Thus in Lord Irnham v. Child (m), it appeared that Lord Iraham treated with Child for sale of an annuity. Upon settling the terms, it was agreed that the annuity should be redeemable; but both parties supposing that this appearing upon the face of the transaction would make it usurious, it was agreed that the grant should not have in it a clause of redemption; and it was accordingly drawn and executed without such a clause. Lord Thurlow refused to supply the omission. A similar decision was made by Mr. Justice Buller, when sitting in Chancery for the Lord Chancellor (n); and two similar determinations were made by Lord Kenyon, when Master of the Rolls (0).

Upon these cases Lord Eldon observes, that they went

(4) Harvey v. Harvey, 2 Cha. Ca. 180, decided the same way, first by Sir Harbottle Grimston, then by Lord Nottingham, and af terwards by Lord Chancellor Jef. fries; and see Fitzgib. 213, 214; see Stratford v. Powell, 1 Ball and Beatty, 1.

(m) 1 Bro. C. C. 92.

(n) Hare v. Shearwood, 1 Ves. Jun. 241; 3 Bro. C. C. 168; see and consider Haynes v. Hare, 1 Hen. Blackst. 659. (I).

(0) Lord Portmore v. Morris, 2 Bro. C. C. 219; 1 Hen. Blackst. 663, 664; Rosamond v. Lord Mel. sington, 3 Ves. Juu. 40, n.

that as to the nature of the forfeiture it is evident, that the relief of equity would not have been afforded, for the purpose of upholding the settlement, except under the Restoration!

(I) Perhaps this case does not belong to this line of cases, but should be classed with those in which a term is omitted by mistake; of which

vide supra.

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upon