| N.Y. Sup. Ct. | May 15, 1829
It was objected on the argument, that as there was, properly speaking, no general issue in covenant, no evidence could be given under the notice subjoined to the plea of non est factum. But this mode of pleading has been long used, and as there is no plea more appropriate, we have permitted it. Unless this plea be considered the general issue for the purpose of attaching to it a notice, the defendant in covenant must always plead specially. This question was raised and discussed, and decided in the case of Demarest v. Willard, (8 Cowen, 206,) though not noticed in the report of that case. The evidence given
Another issue raised by one of the special pleas is, whether Augustin Provost devised to the plaintiff the demised premises. The will gives to her “ all the privilege retained of the water of the Busic creek, which runs through my patents; that is, what may not have been alienated at the time of my decease.” The will was given in evidence. It was shewn also that the executors assented to the devise, and that the land conveyed by the testator to Knowles was patented to him. In my judgment, the words of the will are broad enough to embrace the rent due on the lease in question. It would have given the property excepted and reserved had it not been leased ; and giving that, it must surely embrace the rents issuing from it. Not that a grant of a reversion would carry the rent, the contrary is asserted in Co. Litt. 47, a., but the estate is given to the plaintiff; that estate is encumbered by a lease, the devisee takes it subject to such incumbrance, and must be entitled to all its benefits. The language of the will is, “ all the privilege retained of the
This brings me to the consideration of what seem to me the principal points in the case: 1. Whether the defendant is not estopped from denying the plaintiff’s title to the rent, or. rather the right'of Augustin Provost; and 2. If such defence were admissible, whether Augustin Provost had any interest in the subject matter of the lease.
If I am correct in the conclusion that the defendant is assignee of the lessee, and that the plaintiff is the devisee of the premises leased, then it follows that the plaintiff represents the lessor and the defendant the lessee, each enjoying the rights and subject to the liabilities of the person represented. It is then the familiar case of lessor and lessee, grantor and grantee ; and no principle is better settled than that the tenant cannot dispute the title of his landlord in an action founded upon the contract between them. For this no authority need be cited. But if it were otherwise, and the question was open, then I will inquire what estate passed to Knowles, and what jvas the effect of the exception and reservation in the deed.
It is contended by the defendant’s counsel that the water passed with the land to Knowles ; that water is not severable from the land under the water, and therefore passed with it; that an exception must not be of part of the thing granted, such exception being void. In Sheppard’s Touchstone, 79, 80, (Co. Litt. 47, a.,) it is said that an exception must not be part of the thing granted, but incident to the grant. (See also Dyer, 264, b., 4 Mod. 11, 12.) Thus a man cannot grant an estase and reserve a part of it, as a conveyance in fee, reserving an estate for life ; he cannot grant black acre and white acre, reserving white acre ; but he may grant a messuage with the appurtenances, reserving one of them. So, too, he may grant a tract of land, reserving all mines. But according to the doctrine in Sheppard, if one grant all gold and silver mines, reserving the silver mines, the reservation is void. A grant of a tract of land reserving all mill sites is valid, and the reservation is valid. So if water may be the subject of a grant separate from the land, a reserva
Í There is nothing in the cases cited, inconsistent with the views I have taken of this case, provided I am right in the construction to be given to the deed from Provost to Knowles. The case of Thompson v. Gregory, (4 Johns. R. 81,) shews that such an exception in a deed is good: it is indeed said, I that considered sti'ictly as an exception, it is void for uncen1 tainty; but this must be taken in connection with what pre -
Judgment for plaintiff.