125 Wis. 604 | Wis. | 1905
1. The first and important question for consideration is, What title passed by the deed of November 11, 1872, from Evan Jones and wife to Owen P. Pritchard? The two deeds from Jones to Lewis and Pritchard upon their face indicate that they were executed upon the same day. The deed to Lewis in plain terms excepts and reserves the two rods for a right of way, not a right of way over the two rods, but “a strip of land two rods in width off the north side thereof, to be used as a right of way,” which quite plainly imports that the fee was intended to be reserved. Cincinnati v. Lessee of Newell's Heirs, 7 Ohio St. 37. The language used is in form an exception and reservation. A marked distinction exists between the terms “exception” and “reservation” as used in deeds; the distinction .being that a reservation is something taken back from the thing granted, while an exception is some part of the estate not granted at all. Rich v. Zeilsdorff, 22 Wis. 644; Fischer v. Laack, 76 Wis. 313, 45 N. W. 104. True, the terms “excepting” and “reserving” are often used indiscriminately, and sometimes in .a deed what purports to be a reservation has the force of an exception, when such appears to be the clear and obvious intention of the parties. 2 Devlin, Deeds, § 980; Fischer v. Laack, supra; Gould v. Howe, 131 Ill. 490, 23 N. E. 602.
It is contended on the part of the respondents that the language of the deed to Lewis, excepting and reserving the premises for a right of way, shows upon the face of the deed that the fee was not reserved, but only a right of way, and that, while the deed to Pritchard was an absolute conveyance of the premises by metes and bounds, still the reference to the Lewis •deed made it a part of the Pritchard deed, and constituted notice to Pritchard that only a right of way was reserved; and, the fee having passed to Lewis, Pritchard only got by his deed the right of way reserved in deed to Lewis. This argument is based upon the theory that the fee passed to Lewis. Hence grantor Jones could only convey in his deed to Pritchard the remaining estate in him, which was only a right of way. The court below held, in a written opinion filed, that the reservation to Jones in deed to Lewis and subsequent grant to Pritchard was of an easement merely, and that the deeds were not so ambiguous as to require parol evidence “to aid their interpretation; and the argument of counsel for respondents here is grounded upon the assumption that the ■deed to Lewis upon its face conveyed the fee and reserved the. right of way only, and cannot be aided by extrinsic evidence, and several cases are cited upon this proposition, which will be considered.
Winston v. Johnson, 42 Minn. 398, 45 N. W. 958, is a case where it was held that the words “excepting and reserving” in a deed constituted a reservation and not an exception. JBut a careful examination of this case will show that it did
“There was not the slightest occasion to include this land in-the deed unless some interest was intended to be vested in the-grantee.”
The court also refers with approval to Reynolds v. Gaertner, 117 Mich. 532, 76 N. W. 3, where the words used were-held to create an exception and not a reservation, and says (130 Mich. 84, 89 N. W. 563):
“But the language employed in the deed construed in thafr case is very different from that which we are now construing. In that case the language was, ‘except two and forty-six hundredths acres to the Chicago & Canada Southern Railroad.’ ”'
In Wellman v. Churchill, 92 Me. 193, 42 Atl. 352, the-language of the deed was, “with the reservation of a road two rods wide over the northerly side of said lot.” There the-language plainly indicated a reservation, and not an exception, and the court refers to the distinction between exception- and reservation and says (92 Me. 195, 42 Atl. 353):
“Exception is always a part of the thing granted, and of a-thing in being; and a reservation is of a thing not in being,, but is newly created out of the land and tenements devised, though exception and reservation have often been used promiscuously. Co. Litt; 47a. A construction given to a clause.called a reservation is that it is an exception if it falls within that definition, and if such was the design of the parties.”
“Tbe so-called reservation was not, strictly speaking, an -exception of anything; for an exception is of a part of tbe thing granted, and of something in esse at tbe time of tbe .grant.”
So this case appears to turn upon tbe intention of tbe .grantor and tbe wording of tbe reservation. In Towne v. Salentine, 92 Wis. 404, 66 N. W. 395, this court clearly recognizes tbe distinction between tbe words “exception” and “reservation,” when used in a deed, and bolds that, while a reservation for a right of way carries only an easement, an •exception for tbe same purpose excludes tbe fee from the grant. In Patrick v. Y. M. C. A. 120 Mich. 185, 79 N. W. 208, tbe language used in tbe deed was “excepting and reserving,” and it was held to be an exception and not a reservation.
Many cases might be cited in support of tbe doctrine that •excepting land from a deed for right-of-way purposes withholds tbe fee from tbe grant, and that tbe fee in such land ex•cepted does not pass to the grantee unless it appears that the intention of tbe parties was that tbe right of way only should be reserved. Tbe question, therefore, arises here whether tbe language of tbe deeds in question is so ambiguous or indefinite as to admit of extrinsic evidence. As before observed, tbe Lewis deed upon its face appears to except the fee and burden it with a right of way in-favor of Pritchard, as well as tbe right'in the grantee to keep it inclosed and maintain gates. No reason is perceived why the grantor, Jones, did not have tbe right to except tbe fee and so burden it. Nothing appears ■from tbe face of tbe deed to Lewis showing a contrary intention. Now, it appears very clearly from tbe deed to Pritchard,
Upon the question of the mortgage to defendant Adams creating a cloud upon the plaintiffs title little need be said. The mortgage claimed to be a cloud upon the plaintiff’s title in this case was executed by defendant Lewis and his wife to defendant Adams in December, 1903, and included therein the strip of land owned by the plaintiff, without any reservation whatever. The mortgage was executed upon the theory that defendant Lewis owned the fee. Since he did not, the mortgage is a cloud upon the plaintiff’s title and she is entitled to relief. It therefore follows that the judgment of the court below must be reversed.
By the Court. — The judgment of the court” below is reversed, and the cause remanded with instructions to enter judgment for the plaintiff.