41 N.J.L. 203 | N.J. | 1879
The opinion of the court was delivered by
The plaintiff founds his action ' in this case on the proposition that the timber in controversy was conveyed to him in an absolute form and clear of all conditions, and that the subsequent clause in the deed, restricting to the period of two years his right to enter upon the premises to remove such timber, had no effect on his title, either to limit or otherwise condition it. In opposition to this, the contention of the defendant is that the plaintiff, by the right construction of the conveyance, became entitled only to such of the timber as was removed by him from the premises within the period designated.
My examination of this subject has led me to the conclusion that the construction of this conveyance claimed in behalf of the plaintiff* is correct. Upon looking at the frame of this instrument, it will be found that the timber in question is plainly excepted out of the operation of ’the conveyance, and that the right to take it away within a specified time is in the shape of an agreement on the part of the defendant. Such a stipulation on the side of the grantee of the deed cannot convert an absolute exception into a conditional one. The legal effect of an exception is to sever from that which is granted that which is excepted, so that the latter does not pass by the grant, (Shep. Touch. 77,) and when, consequently, anything is thus set apart and declared to be outside of the grant, it should be plain words only that should bring it within the force of the grant. The excepting clause says, in effect, that the grantor withdraws from the grant a certain portion of the premises, and such act is so positive and emphatic that it cannot be controlled or affected by subsequent expressions or stipulations of dubious meaning or uncertain effect. It is not questioned that an exception may be made to depend, either for its existence or continuance, on a condition,
As far as my research has extended, I find that all the best considered cases that are strictly in point harmonize with the view of the subject above expressed. One of the chief cases is Hort v. Stratton Mills, 54 New Hamp. 109. In that case it appeared that there was a deed conveying growing trees to be removed by the grantee, and it was held that as the terms of the grant, taken in their literal and usual sense, signified an absolute conveyance of the title of the trees, the grant was not made conditional by the implied stipulation that the grantee should remove the trees within a reasonable time. It will be observed that the case is closely applicable, as it is not possible to discriminate a sale of standing timber alone, without the land, from an exception of such timber in a deed conveying the land, with respect to the legal effect of a clause, appended to each, requiring within a time, specified or implied, the removal of such timber. It is manifest that if the stipulation touching the removal will not make the title conditional in the one case it will not in the other. The case of Knott v. Hylinck, 12 Rich. (S. C.) 314, must be considered as resting on the same basis, for the court construed a deed that reserved all the growing timber as leaving the title absolutely in the grantor, and although, in that case, there was no time mentioned within which the trees were to be removed, that
With respect to the cases cited in the brief of the counsel of the defendant, I do not think any of them are exactly pertinent. The case that is most nearly so is that in Holton et al. v. Goodrich, 35 Vt. 19, but a careful scrutiny of the report will disclose the fact that besides a reservation of certain property, and the privilege of removing it within a certain time, there were a number of other stipulations, and that the court, without any consideration of the general principles involved, put its decision upon the evident design of the parties to the instrument then under examination, as exhibited in its peculiar expressions and provisions. There are some dicta in the case of Pease et al. v. Gibson, 6 Maine 81, that favor the views of the defence, but the case itself did not call for those expressions of opinion, and that such expressions were not well considered, has, I think, been quite plainly shown by the criticism of them in the opinion already referred to, read in the case of JEort v. Stratton. Touching the other cases cited, I shall dispose of them by the remark that they seem to me, so far as legal principles are concerned, as standing entirely aside of the subject now under examination.
In forming the foregoing opinion, I have laid no stress on the fact that the timber in the present instance was actually cut down before the end of the time limited in the deed for its removal. This has been designedly done, ás it is not perceived how such fact can add anything to the force of the exception in the conveyance, in the way of fixing the title in the grantor. I have endeavored to show that the exception is unconditional; and if this be so, by its own efficacy it kept the title to the timber in the plaintiff; but if, to the contrary, the property in the timber was not to remain in the plaintiff unless the trees were removed within such period, then, very
The Circuit Court should be advised in conformity with the foregoing conclusion.