That is certain which is able to be rendered certain.
The following are instances of the application of this maxim. If a lease be made to J. S. for life, remainder to him -who shall come first to St. Paul's on such a day ; or to him whom J. S. shall name in three days ; if, in these cases, any one comes to St. Paul's on that day, or be named by J. S. within the three days, and the particular estate so long continue, that is a good grant of the remainder under this rule ; but otherwise, if the grant be to four of the parishioners of Dale, for this grant is absolutely void for uncertainty. So in a contract for the sale of lands or goods, where the particulars of the lands or goods contracted to be sold are not set out in the contract, but reference is made to another instrument in which they are so set out ; as, where, on the sale of large quantities of machinery, stock in trade, etc, reference is made to an inventory thereof ; or, where, on the sale of lands and buildings, reference is made to an advertisement in the newspapers or to particulars of sale by auction.
Also on the conveyance or assignment of lands or goods, where the conveyance or assignment is by reference to a schedule or inventory, or to another deed containing the particulars of the lands or goods conveyed or assigned. Again, in the case of a will or codicil, where there is a reference to some testamentary paper not incorporated into the will or codicil ; or, an Act of Parliament, where reference is made to a schedule in such Act, or to another Act of Parliament ; or in the case of a patented invention where reference is made to the specification containing the particulars of the invention patented.
An uncertainty or incorrectness in the description of premises in the habendum of a deed, also, is made certain by reference to the parcels, and so in similar cases.
So where an estate or interest in lands is devised subject to be vested or divested upon condition, the estate becomes absolute or forfeited upon the performance or nonperformance of the con- dition. As, where the condition is that the devisee shall take the name of the devisor ; or, that the widow of the devisor shall not marry ; or, where the condition is that the estate shall be diverted and go into a different channel upon the happening of a particular event, as, upon failure of issue of one person then to another, and for a larger or smaller interest as the case may be, or any other such like contingency. A lease for lives, and a term to commence on the death of the survivor ; the duration of a term capable of being determined or prolonged at the option of the lessor or lessee ; a contract for the sale of growing crops or goods in bulk by weight or measure ; are all instances of the application of the maxim. So, where an assignment was made to a company as such, without designating the persons forming the company by names, and it was contended that the property would not pass to the defendants, it was held that, it being capable of being ascertained who were the company, when so ascertained, the grant would take effect under this maxim.
In all the above cases the uncertainty is removed by production of the instrument referred to ; by the happening of the contingency upon which the grant over is to take effect ; or by evidence in explanation of the intention ; the contract or covenant in the meantime being sufficiently certain to enable it to be acted upon.
9 Co. 47 ; 2 Bla. Com. ; Shopp. Touch. 23G, 237, 250, 273 ; Co. Litt. 6, 43, 47, 0G ; Doe dan. Timmins v. Steele and another, 4 Q. B. GG3 ; Park e. Harris, 1 Salk. 2G2 ; “Wildman v. Olossop, 1 B. & Aid. S ; King r. Badelcy,
3 Myl. & K. 417; Gkidstuno v. Xealc, 13 East, 410; Cotterill r. Cuff,
4 Taunt. 2S.1 ; Hewaon c. Reed, .”> Mad. 4 Til ; Jcaeoek t . Falconer, 1 Bro. C. C. 2'J.j ; Doe dem. Blake r. Luxton, G T. E. 2,s:i ; PiUworth c. Pyat 2 T. Jones, 4 ; Maughan v. Sharpe, 10 L. T. (X.N.) 870.