Hammond's Lessee v. Brice

³³⁵ But the gentlemen say, it was the intent of the parties that the estate should move from them by lease and release, and the rule is, that if it can have a partial operation, that is, to convey some estate from the parties, though in a less manner than they intended, it shall not operate in any other manner; and for this they rely on Sir Edw. Clere’s case, 6 Co. 17. We answer — There is no such reasoning to be drawn, from this case j but every thing to be collected from it is, that where a man has an interest as well as an authority, and does an act without reciting his authority, it shall be supposed he did it according to his intent; and this is the principle on which the case was determined, and not the one mentioned. Where a man made a feoffment to the Use of his last will, he had an authority under the feoffment to appoint uses, or might dispose of the land as owner; and if he devised without recital, an authority would pass by his interest. 1 Bac, Abr. 202. in notes.

This case only applies to the case of an authority and interest; but the gentlemen have not mentioned the true reason, but have assigned one they thought most beneficial. The reason they allege is not a just one, and cannot be found in any of the books. If their reason is a good one, the doctrine that a grant shall operate most strongly against the grantor, at once falls to the ground. But if I was to admit the case to be law, on the principles suggested, it applies against them.

They say, where an estate moves