6 N.H. 421 | Superior Court of New Hampshire | 1833
delivered the opinion of the court.
In this case the demandant claims a certain tract of land, consisting of one acre and a half acre which he
Under this exception in the deed the demandant claims the one acre, and one half acre located by him in his writ, and the question is whether this portion of the land, so excepted by him, in his conveyance, retains any title to the premises in the demandant.
An exception is defined tobe a clause in a deed whereby the feoffor, donor, lessor, &c. doth except somewhat out of that which he had granted before by his deed.—Plowd. 361, 195; Dyer, 59; Co. Lit. 47; Pet. Ab. 7, 673. But the exceptions must be by apt words ; for example : if a man grant all his lands in Essex saving or except his lands in Dale ; or all his lands in Dale excepting one house, or one- acre in certain ; these, and such like exceptions, are good. Plowd. 195; Perk. Sec. 641; Dyer 103; Plowd. 104, 361, 67; Co. 8, 63; 11, 47; 5, 11; Perk. Sec. 642.
And if one grant a manor, excepting one tenement, parcel of the manor, or excepting one close, or excepting twenty acres of wood, or, excepting all the gross wood, these are good exceptions. And if one grant land, excepting the timber trees thereupon ; or if a man sell a wood, excepting twenty of the best oaks, and show which in certain these are good exceptions. Co. 8, 63; 5, 23.
The rule, as respects certainty, seems to be the same as is laid down with regard to grants. In 1 Pick. 31, Hall v. Leonard, it is said, if a grant be made to a father, and his son, he having but one son, it is good ; but if the father have several sons, or if a grant be made toa man’s cousin these are void for uncertainty, and in the case of Hall & Leonard it was decided that a grant to the heirs of an individual is void for uncertainty.
In Haven v. Cram, 1 N. H. Rep. 93, it was held that a constables’ deed of a certain tract of land part of lot No. 300, containing 250 acres, was void — the lot consisting of 400 acres, and there being no location of the land conveyed. In this case the court held that the original grant was to prevail until the title was specifically divested, and is therefore in principle subject to the same construction as an exception out of a grant.
As a general rule, the burthen of proof lies upon him who sets up an exception, and it is a rule of law that both the grant, and exception are to be construed most favorably to the grantee.3 Johns. 387; 8 ditto, 394; 10 Co. 106; In the case of Moore v- the Earl of Plymouth which was trespass for breaking and entering plaintiff’s close and shooting game, the defendant plead that the premises had been conveyed “excepting and reserving the free right of
Had the demandant conveyed the land, excepting one and an half acres, to be located at his election, he might perhaps have sustained this action had he located the land previous to commencing his writ of entry, In this case the tenant claims only five acres, parcel of the original fifty, and there is no reason, apparent from the conveyance, why the one and an half acres should be taken from tins five, more limn any other five acres of the grant. The grantor manifestly cannot elect to locate the land where he pleases.
But it is said, on the part of the tenant, that the purposes for which this exception was made are of such a nature as to locate the land. The exception is of one and an half acres of land, reserved for the use, and flowing of the mill. The case finds that a portion of the land has been flowed from the time of the original grant, and no objection has ever been made. How much of the land it might he advisable to retain for the use of the mill, or how much for purposes of flowing, or where in such case it would be located, it is impossible to tell, and the grantor cannot elect. While, therefore, the ordinal grant is held good, the exception must be considered void for uncertainty.
There are a number of other points in the case which it will be unnecessary to determine. The tenant has been in possession of this land for more than twenty years, claiming title, and though it is said the demandant, from time to time made a claim to one and an half acres by virtue of this exception, it does not appear that he ever entered upon the land for this purpose, and it is not clear but the possession constitutes a good title.
But these points it is unnecessary to determine. The first exception taken by the tenant’s counsel overrules the exception in the deed, and as agreed by the parties
Judgment must be rendered for the tenant.