This case cannot be distinguished from that of Hornbeck v. Westbrook. (9 Johns. 73.) It is there expressly decided, that the proviso in the deed of 1728, was null and void ; that the inhabitants of Rochester were not a body corporate, so- as to be competent to take an estate in fee. And if a grant to them would be void, a reservation to them, in a deed in fee to a third person, would be equally void. Nor would it be valid as a covenant to stand seised. The inhabitants of-Rochester were strangers to the deed. The present inhabitants, at all events, must be so considered. For they not being a body corporate só as to perpetuate the rights granted by the-patent, these rights must be restricted to the then inhabitants. They alone were the cestui que trusts. The. grantors in this deed were seised in fee as private individuals, and competent, under the patent, to convey the common land of the town of Rochester. (2 Johns. Rep. 230.) Their deed, and all provisos and reservations, must receive the same construction, and be governed by the same rules, as the deeds of other individuals. The plaintiffs must, therefore, have judgment upon the verdict of the jury.
Judgment for the plaintiffs.