Words to which reference is made in an instrument have the same effect and operation as if they were inserted in the instrument referring to them ; or, as the same maxim is otherwise more succinctly expressed, Verba illata in esse videntur : Words referred to are considered as incorporated.
This rule applies as well to cases where a particular clause in an instrument refers to another clause in the same instrument ; as, to parcels, schedules, plans, etc, as it does to cases where reference is made in the instrument to some deed, plan, gchedule, index, will, etc, altogether disconnected from the instrument in which the reference thereto is made. The following examples will suffice to show the meaning of the maxim.
A deed referring to furniture, fixtures, machinery, etc, in a schedule, being a totally distinct document, or to trusts declared in another deed ; a deed whereof one clause, for brevity, refers to another clause with a mutatis mutandis ; and affidavits referring to a deed, or other document, are all within the rule.
Where a plea was verified by affidavit which referred to the plea, the plea being intituled in the cause, the affidavit was held sufficient, though not specially intituled in the cause. And in that case it was observed that the court generally requires the affidavit to be intituled in the cause, that it may be sufficiently certain in what cause it is, so as in case of need to admit an indictment for perjury ; but that the affidavit in question referring to the plea as annexed, which plea was so intituled, it amounted to the same thing.
A covenant in an under-lease to perform all the covenants in the original lease, except to pay rent and insure, will, in effect, comprise a covenant, contained in the lease, to pay all rates and taxes whatsoever, and may render the under-lessee liable to rates for extraordinary works of a permanent nature, as for drainage and such like, according to the terms of the covenant in the original lease.
A deed conveyed a piece of land forming part of a close, by reference to a schedule annexed. The schedule described the land in one column as, 153 b ; in a second column as, a small piece marked on the plan ; in a third column as being in the occupation of J. E. ; and in a fourth as, 34 perches. At the time of the contract a line was drawn upon the plan as the boundary line dividing the piece 153 b, from the rest of the close of which it formed part. The plan was drawn to a scale, but upon measurement of the land it was found to be incorrect, and, 153 b, contained within the line so drawn, less than 34 perches according to actual measurement on the plan, and 27 perches only according to actual measurement of the land : it was held that the statement that the piece of land conveyed contained 34 perches, was merely falsa demonstratio, the prior portion of the description being sufficient to convey it, and that the deed passed only the portion of land actually marked off on the plan as measured by the scale. And the case was determined by the application of the maxims, verba illata in esse videntur, and falsa demonstratio; according to the former of which it was considered the same thing as if the map or plan referred to in the deed had been actually inserted therein, and according to the latter, that the 34 perches having no relation to the plan must be taken to mean 34 perches by admeasurement, and that definition being sufficiently certain, no subsequent erroneous addition would vitiate it.