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Ambiguitas patens is never holpen by averment: and the reason is, because the law will not couple and mingle matter of specialty, which is of the higher account, with matter of averment, which is of inferior account in law; for that were to make all deeds hollow and subject to averments, and so, in effect, that to pass without deed, which the law appointeth shall not pass but by deed.
Therefore if a man give land to I. D. et I. S. et hæredibus, and do not limit to whether of their heirs ; it shall not be supplied by averment to whether of them the intention was the inheritance should be limited.
Cheyney's case, 5 Co 68.
So if a man give land in tail, though it be by will, the remainder in tail, and add a proviso in this manner, "Provided that if he, or they, or any of them do any act, &c.," according to the usual clauses of perpetuities; it cannot be averred, upon the ambiguity of the reference of this clause, that the intent of the devisor was, that the restraint should go only to him in the remainder and the heirs of his body, and that the tenant in tail in possession was meant to be at large.
Of these infinite cases might be put: for it holdeth generally that all ambiguity of words by matter within the deed, and not out of the deed, shall be holpen by construction, or in some case by election; but never by averment, but rather shall make the deed void for uncertainty.
But if it be ambiguitas latens, then otherwise it is. As if I grant my manor of S. to I. F. and his heirs, here appeareth no ambiguity at all upon the deed; but if the truth be that I have the manors both of South S. and North S. this ambiguity is matter in fact; and
therefore it shall be holpen by averment, whether of them it was that the parties intended should pass. So if I grant my tenement in the parish of St. Dunstan's, and I have two tenements there; this uncertainty shall be supplied by averment of intention.
But if I set forth my grant by quantity; then it shall be supplied by election, and not by averment.
As if I grant ten acres of wood in Sale, where I have a hundred acres; whether I say it in my deed or no that I grant out of my hundred acres, yet here there shall be an election in the grantee, which ten he will take. And the reason is plain: for the presumption of law is, where the thing is only nominated by quantity, that the parties had an indifferent intention which should be taken; and there being no cause to help the uncertainty by intention, it shall be holpen by election.
But in the former cases the difference holdeth, where it is expressed, and where not. For if I recite, Whereas I am seised of the manor of North S. and South S. I lease unto you unum manerium de S. there it is clearly an election and so if I recite, Whereas I have two tenements in St. Dunstan's, I lease unto you unum tenementum, there it is an election. Contrary law it is in the cases before, where I take no knowledge of the uncertainty; for there it is never an election, but an averment of intention: except the intent were of an election, which may also be specially averred.
Another sort of ambiguitas latens is correlative unto this for this ambiguity spoken of before is, when one name and appellation doth denominate divers things; and the second is, when the same thing is called by divers names.
As if I give lands to Christ-Church in Oxford, and the name of the corporation is Ecclesia Christi in Universitate Oxford; this shall be holpen by averment, because there appears no ambiguity in the words: for the variance is matter in fact.
But the averment shall not be of the intention, because it doth not stand with the words. For in the case of equivocation the general intent includes both the special, and therefore stands with the words: but so it is not in variance; and therefore the averment must be of matter that doth induce a certainty,1 and not of intention: As to say, that the precinct of " Oxford," and of "the University of Oxford," is one and the same; and not to say, that the intention of the parties was, that the grant should be to Christ-Church in the University of Oxford.
1 I have conjecturally substituted "certainty" for "quantity." One MS. has a blank.