34 Barb. 566 | N.Y. Sup. Ct. | 1857
It is the proper office of an exception in a deed, as distinguished from a reservation, to exempt from the operation of the deed a part of that which is granted or comprised within the generality of its terms. It must he of such a part as is severable from the rest. (1 Preston’s Shep. Touch. 78. 21 Wend, 290. 4 Edw. Ch. R. 711. 1 Seld. 33.) The character of a reservation is always of something issuing or coming out of the thing or property granted, and not a part of the thing itself; and to he a good reservation, it must always he to the grantor, or party executing it, and not to a stranger to the deed. (1 Preston’s Shep. Touch. 80. 1 Seld. 33, 38. 18 Bacon’s Abr. 460. Whitlock’s case, 8 Co, 69, 8 John. 73, 75.) Nor can a condition he reserved to a stranger to the deed. (4 Kent’s Com. 127. 12 Barb, 460.) This is most clearly a reservation, and not an exception; and the question presented depends upon the construction to be put upon the reservation. The rule of law, in construing such a reservation, is to hold to a strict construction of the words of the reservation, as against the party whose words they are. And so strict is the rule in this respect, that if any advantage
Upon this state of the case, no one could doubt but we should hold it a reservation to Drake, and no one else. The plaintiff claims that as, at the time of this conveyance containing the reservation, the plaintiff was in possession of the Drake lot under a contract of purchase from Drake, we must construe this as a reservation to him, and not to Draek. The difficulty with this argument is, that it requires us to reverse entirely the rule of construction in regard to reservations, because when the fact is admitted that the plaintiff was in possession of this Drake lot, under a contract to purchase, the question still remains, on the construction of the reservation, whether the plaintiff did not, in fact, intend to reserve ifc to Drake as owner of the title, instead of himself
The plaintiff, perhaps, supposed that as Drake was the owner, and "he was under contract to convey the lot to him, it would be as well to make the reservation to Drake, and he would take it by conveyance from him.
At any rate, it is a very forced construction of this reservation to hold it as made to the plaintiff, who is in nowise referred to or mentioned in it; and as he must claim, if at all, upon the plain and strictest construction of the language of the reservation, I do not see how we can give it to him. I advise that a judgment be entered for the defendant, with costs to be taxed.
Judgment for the defendant.
Gray, Shankland and Mason, Justices.]