(d) 2 B. & Ad. (22 E. C. L. R.) 278.
But in that case the question related to two houses only, which were mortgaged, and the deed reciting that the mortgagor was legally or equitably entitled to the premises, and he covenanting that he was legally or equitably seised in his own demesne as of fee, it was clear that there was no certain or precise averment of any seisin in him. There the charge was intended to apply to various lands of the grantor; and as it is an undoubted canon of construction, that, if possible, you should give effect to every part of a deed, I find no difficulty in considering the words both in the recital and in the grant, not as expressive of any uncertainty, but as applying to lands held by different titles, and therefore, reddendo singula singulis, to all the lands mentioned, whether Phillips Monypenny was legally or equitably entitled to them. The effect of this mode of reading the recital and the grant will be, that the annuity will be a charge upon all the land, whether Phillips Monypenny's title to them was legal or *equitable, although the power to distrain would be limited to those only of which he had the legal estate. The converse of this is put by Lord Coke in p. 47 of his Commentary, where he says: 'If a man seised of lands in fee, and possessed of a term for many years, grant a rent out of both for life in tail or in fee, with clause of distress out of both, this rent, being a freehold, doth issue only out of the freehold, and the lands in lease are only charged with the distress.' It will be said that the words 'give, grant, bargain, and sell,' cannot operate as a covenant, because they merely assert a power to give or create an annuity; at the same time, the plain and ordinary effect of the word 'covenant' has been denied, and it has been treated as synonymous with the word 'grant.' But in construing this deed I should be much more disposed to give the word 'grant' the operation of a covenant than to transform the word 'covenant' into a grant. It is undoubtedly law, that a deed that is intended and made to one purpose may accrue to another; for if it would not take effect in the way that it was intended, it may take effect another way: Sheppard's Touchstone, 82. There is an admirable judgment of Lord Chief Justice Willes on this subject in Roe d. Wilkinson v. Tran-marr (e), which has a considerable bearing on the point in question. There Thomas Kirby, in consideration *of natural love to his brother Christopher, and for £100, granted, released, and confirmed to Christopher the premises in question after his (Thomas's) death, and covenanted and granted that the premises should after his death be held by Christopher and the heirs of his body, and after their decease, to John Wilkinson and his heirs; and it was held that the deed would not operate as a release because it attempted to convey a freehold in future, but that it was good as a covenant to stand seised: and the Chief Justice said, ' there is likewise one thing in the present case much stronger than in any of the cases which have been cited on the one side or the other, for here is not only the word "grant," which has often been construed as a word of covenant, but likewise the grantor expressly covenants in two places in the deed, that the estate shall go to John Wilkinson in such a manner as he granted it' In the present case, if the words creating the annual sum or yearly rent-charge are to be construed strictly as a grant and nothing more, then it was absolutely void from the first and never could have any inception, because it was not to begin until after the death of Phillips Monypenny, and, on his death, the estate on which it is charged came to an end.
(e) Willes, GS2; 2 Smith L. C, 8th ed., p. 530.
Why, under these circumstances, it being the clear intention of those parties that the deed should operate, if it could not take effect as a charge, should it not be construed to be a covenant to pay the annual sum of £300, which would be *binding upon the executors of Phillips Monypenny, though not named ? It is unnecessary to multiply authorities to show that, according to what Lord Mansfield says, in . Lant v. Morris (f), 'no particular technical words are requisite towards making a covenant,' for in this deed there is a clause in which this peculiar and appropriate word is to be found in giving the grantor power to distrain for the rent-charge-' Phillips Monypenny, for himself, his heirs, and assigns, covenants, grants, and agrees.' I asked more than once in the course of the argument, what would have been the effect of the deed if it had simply contained this clause of distress? I was not aware my question received an answer from Littleton himself; for he says, in the course of section 221: 'Also, if one make a deed in this manner, that if A., of B., be not yearly paid at the feast of Christmas, for the term of his life, twenty shillings of lawful money, that then it shall be lawful for the said A., of B., to distrain for this in the manor of F., etc.: this is a good rent-charge, because the manor is charged with the rent by way of a distress.'But he adds-'And yet the person of him who makes such deed is discharged in the case of an action of annuity, because he doth not grant by his deed any annuity to the said A., of B., but granteth only that he may distrain for such annuity.' Now upon this put the case that a *person 'covenants, grants, and agrees' for a power of distress for an annual sum or rent-charge upon land in which he has nothing. If it is a rule that every word in a deed must have effect given to it if possible, and none ought to be rejected, and there is another rule that if a deed cannot take effect in the way intended, it shall take effect in another way,-why should not these words have each its due effect, and after the creation of the rent-charge by the grant of the power of distress, why should not the covenant, applied to the words 'annual sum,' create a personal liability in the grantor and his executors? I am aware that the grantor in this clause of distress binds only his heirs and assigns, and not his executors; and it was insisted, though not very strongly, in argument, that this showed an intention that his executors should not be bound. I inquired whether there was any authority to be found that executors in such a case would not be liable, and 1 was told that none had been discovered; and I should have been surprised to have learnt that, the rule being that heirs are in general only bound if named, and that executors are bound although not named, the naming the heirs for the purpose of binding them should be considered to amount to an exclusion of the executors, whom it was unnecessary to name. But had there been any such authority, I should have thought it inapplicable to the present case, in which, there being no heirs to be bound, as *there was nothing to descend, the naming them could have no greater effect than if they had been altogether omitted from the covenant.