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patent to the King, who, in consideration of the surrender, granted the office to Henry Kempe for life, to commence after the death, surrender, forfeiture, or other determination of the estate of Martin and afterwards to William Kempe for life, to commence after the death, surrender, forfeiture, or other determination of the estates of Martin and Henry Kempe.
Upon the death of King Charles II. a scire facias was sued out to repeal these letters patent. Sir S. Eyre, Just. said it was objected that the King was deceived in his grant to Fryer, which was to commence after the death, surrender, or forfeiture of Martin; for the estate of Martin being only an estate at will, it could not be surrendered or forfeited; because those acts, which in cases of other particular estates would amount to a forfeiture or surrender, in case of an estate at will, amounted to a determination of the will; and therefore there could not be a surrender or forfeiture of an estate at will. And in fact the estate of Martin did not determine by his death, surrender, or forfeiture, but by the death of King Charles II. ; and therefore the grant to Fryer could not take effect, because Martin's estate did not determine by his death, surrender, or forfeiture.
To answer which objections he said that it ought to be considered, 1°. When the King shall be said to be deceived, to avoid his grant. 2°. In what manner the grant of the King should take effect; and what construction it should have.
As to the first, where the matter expressed to be suggested on the part of the grantee was false, and to the prejudice of the King ; there if the King was deceived, that would avoid the grant. But where the words were the words of the King, and it appeared that he had only mistaken the law; there he should not be said to be deceived, to the avoidance of the grant : as if there was an estate in esse not recited; or when the grant was recited to be of less value than it actually was, by the suggestion of the party; there the King was deceived, and the grant should be void. For, in the first case, the intent of the King was to grant an estate to take effect in possession, which intent could not take effect, because there was an estate before in esse, not recited. In the second case, if the grant were good, the King would grant more than he had designed to do. But if the King was not deceived in his consideration, nor otherwise to his prejudice; but his intent was to pass the lands, only he was deceived in the law; nevertheless his grant should be good.
20. In what manner the letters patent of the King should be construed, when he was mistaken in his own words and affirmation. And he said that it was a rule in law, that where the King was not deceived by the suggestion of the party; and it appeared by the letters patent, that the intent of the King was, that the patentee should take ; such construction should be made, that the grant should not be void.
To apply this to the case. In the letters patent to Fryer, the King was not deceived, for the precedent letters patent were truly recited, and the suggestion was true; and the intent of the King was, that Fryer should take by these patents; and therefore such a construction ought to be made, as that the grant might take effect.
Lord Holt concurred, and judgement was given that the letters patent were good.
Thirdly, that though the King mistakes, either in matter of law or fact, yet if this is not any part of the consideration of the grant, it will not vitiate it.”
48. King Henry VII. granted to Lord Chandos a manor in tail; and the same King, by other letters patent, reciting the former grant, and that the said Lord Chandos had surrendered the same to be cancelled, and that the same had been cancelled, by reason whereof the King was seised in fee; did grant the said manor to Lord Chandos and his wife, and the heirs of Lord Chandos.
It was contended that the second grant was void.-1o. Because the estate tail was not recited as an estate tail continuing, whereupon the reversion might be granted, but as an estate tail determined ; and therefore the King granted it as a thing in possession, when in truth he had but a reversion, expectant on an estate tail. 2o. Because the King was deceived in his grant; for the King, by the suggestion of the party, thought that by the surrender of the first letters patent, the estate tail was defeated and determined, by reason of which the King became seised in fee, in which the King was deceived. 3o. Because the King was deceived in the estate he granted, for he intended to grant an estate in fee in possession, and not a reversion expectant on an estate tail.
After great deliberation, it was resolved that the reversion passed. And as to the said three objections, it was considered how much of the said recital was the suggestion of the party, and how much the affirmation of the King himself. And it was held that the recital of the estate tail, and that the patentee had surrendered, were, in judgement of law, the information and sug
gestion of the party ; but the clause that the King was seised in fee, was the conclusion of the King himself, in which he mistook the law. Also the party informed the King that he had delivered up the letters patent to be cancelled, upon which the King affirmed that they were cancelled : that was not the affirmation of the party, but of the King ; and the affirmation of the King, on the information of the party, when it was not made any part of the consideration, should not avoid his grant. And it was ante, $ 38. not like the case of Alton Woods; for there the King was not informed of his true estate, and his grant could not take effect, without fraction of estates, or
Fourthly, that the words ex certa scientia et mero motu, in the King's charters and letters patent, do occasion them to be taken in the most benign and liberal sense, according to the intent of the King, expressed in his grant. 50. It has been stated that royal mines do not pass
ante, s 28. a grant of all mines, minerals, &c. But Lord Ch. Plowd. 337. J. Dyer has said, that if the Crown has a mine royal in the soil of J. S. and grants, ex gratia speciali, certa scientia et mero motu, all mines in the land of J. S., the mine royal shall pass ;
for else the words would be void, and without effect; because the Crown cannot have a base mine in the soil of another : and therefore when the Crown says, ex certa scientia, and recites that it is in the soil of another, it shall not be taken to be misconusant of the thing.
51. There are, however, several cases in which the words ex certa scientia et mero motu were not held sufficient to establish the King's grant, as in Lord ante, $ 27. Lovell's case, which has been already stated.
Id. 46 b.
1 Rep. 46 a.
52. So where King Henry VII. being seised of two manors, Ryton and Condor, granted ex certa scientia et mero motu totum illud manerium de Ryton & Condor, cum pertinen', in com' Salopiæ ; it was held that the grant was void, for the King was deceived.
53. In the same manner where Queen Elizabeth, being seised of the manors of Milburn and Sapperton, in the county of Lincoln, granted, ex certa scientia, &c. totum illud manerium de Milborn cum Sapperton, in com' Lincoln'; it was held that neither of them passed.
34. “Fifthly, that though in some cases general words of a grant may be qualified by the recital, yet
if the King's intent is plainly expressed in the grant10 Rep. 65 b. ing part, it shall enure according to that, and is not
to be restrained by the recital.” 4 Rep. 34. 55. In Bozoun's case, 26 and 27 Eliz., it was held
that a clause of non obstante would supply the defect of a misrecital; and this doctrine was confirmed in the following case.
56. King Henry VIII. granted the manor of Sherv. Hungate, born, in the county of York ; and then followed
these words: “all which are of such a yearly value as is expressed in such a particular,” with a non obstante of any misrecital of the true value, or that they were of greater value. The value was not truly expressed in the particular.
Lord Ch. B. Hale held the grant good. He said that the reason why a mistake in the consideration, or in the King's title, or the non-recital of an estate, or lease in being, shall" vitiate the King's patent, was, because by his prerogative he ought to be truly informed of his case ; but it was otherwise