When more is done than ought to be done, then that is considered to have been done which ought to have been done.
To allow the contrary of this maxim would be to permit a man to take advantage of his own wrong, as in the case of a termor for twenty years granting a lease for thirty ; but in such a case, under this maxim, the lease would be good for the twenty years and void as to the excess ; and so it is in the exercise of an authority given under a power, and in similar cases.
Where there is a custom that a man shall not devise his lands for a greater estate than for life ; yet, if he devise in fee, the devise will be good as a devise for life. Where a grantor is entitled to certain shares only, in land, the grant, in construing it, will be confined to the words of the grant ; and therefore, it is said, that if a person having three sixth parts, grant two sixth parts, those shares only will pass ; but, on the other hand, if the grant import to pass more shares than the grantor has, it will be good to pass those he has. And so, if a person having one third part, grant all those his two third parts, the grant will pass his one third. So, where lands were devised to trustees upon trust to the use of W. B. B. and his first and other sons in strict settlement, remainder to F. B. and his first and other sons in strict settlement, with power to grant any lease of all or any part of the lands so limited, so as there be reserved the ancient and accustomed yearly rent ; it was held that a lease by W. B. B. of part of the lands devised, in several parcels ; in one of which parcels were included, together with lands anciently demised, two closes never before demised, at one entire rent ; was void for the whole of the lands included in that parcel, as well the lands never before let as those anciently let ; but, it seems, good as to the other parcels which contained only lands anciently demised, and on each of which there was a several reservation of the ancient rent.
Where one leased lands of part of which he was seised in fee and part for life, with a power of leasing; but which was not well executed according to the power ; at one entire rent ; the lease was held good, after the death of the lessor, for the lands held in fee, though not for the others. If a lessor grant more than he has a right to do ; as, an exclusive right to sport over the lands leased, he not having any such exclusive right ; the lease will not be void, but an apportionment of the rent will be made in respect of such right. Where a man grants a rent charge out of more lands than he has, his heir shall not take advantage of the wrong to set aside the grant ; but if the rent be reserved, it being reserved out of the whole land, in that case, there being an eviction as to part of the land by title paramount, the lessee cannot be charged with the whole rent, but it must be apportioned. But where a lessee by parol, of land, found, upon entry, eight acres in possession of a prior lessee by deed, and who kept possession until half a year's rent became due ; the lessee by parol continuing in possession of the remainder, the prior lease extending in term beyond the latter ; it was held that the latter was wholly void as to the eight acres, and the rent not apportionable ; the inability of the lessee to take possession not arising from eviction by title paramount.