117 Me. 168 | Me. | 1918
This is an action of assumpsit on account annexed to recover certain sums alleged to be due for one-half rent for gravel sold
The only question raised is an intei’pretation of the reservation clause found in the deed from Foster to French. Is it a reservation or an exception? An “exception” is a part of the thing granted and of a thing in being at the time of the grant. A “reservation” vests in the grantor some new right or interest that did not exist in him before, and operates by way of an implied grant. Hall v. Hall, 106 Maine, 389.
In King v. Walker, 87 Maine, 550, it is said: The distinction between an ‘exception’ and a ‘reservation’ is frequently obscure and uncertain, and has not always been observed, and the two expressions have to a great extent been indiscriminately employed. Moreover, a reservation is often construed as an exception in order that the obvious intention of the parties may be subserved. Winthrop v. Fairbanks, 41 Maine, 307; Smith v. Ladd, Id., 316; Bowen v. Conner, 6 Cush., 132. Whether a particular provision is intended to operate as an exception or reservation is to be determined by the character, rather than by the particular words used. Perkins v. Stockwell, 131 Mass., 529, 530.”
Accordingly, not only from the language of the reserving clause in this deed, but from all the circumstances surrounding the transaction, is the intention of the parties to be discovered. In 13 Cyc., 677, under e. Intention, is found this rule of construction: “A reasonable construction should be given to a reservation or exception according to the intention of the parties, ascertained from the entire instrument.
The parties to this deed must be regarded as having understood the nature of their transaction. Accordingly it seems but natural and reasonable that the grantor intended' to take out of this conveyance his interest in this gravel bank. It was not something created by the reserving words. It already existed. It was an entity far more distinct from the thing conveyed than any of the cases enumerated in Hall v. Hall, 106 Maine, 392. The language also supports the interpretation. It indicates the intention on the part of the grantor to take something out of the thing granted that would otherwise have passed by grant. This is the very essence of an exception as distinguished from a reservation.
Our conclusion, therefore, is that the reserving clause must be construed as an exception.
This reserving clause does not contain words of inheritance, yet, though the grantor be deceased, the clause is operative as an exception, the effect of an exception being, that the grantor has never parted with his title.
The remaining question is what the exception covered, on the face of the earth. While the language of description is not specific, yet the intention of the parties may be reasonably ascertained. The
The defendant, therefore, contends that, even though the reserving clause be construed as an exception, the plaintiff cannot recover, as the exception applies only to the pit, or hole, open at the time of the conveyance. We cannot assent to this interpretation of the language of the reserving clause. “Foster has half the income of the gravel in said lots where now opened.” This language is significant. It excepts in so many words “the gravel in said lots,” and then adds the qualifying phrase “where now opened;” that is, the lot, in which the pit is now opened. It does not say ‘ ‘in said pits” or holes” where now opened.” The modifying phrase “where now opened” is used to designate the excepted lots. It is half the income of gravel ‘ ‘in said lots,” — not “in said pits.”
Moreover, taking into consideration the object and purpose of this exception, it seems evident that they were not thinking of a gravel hole or gravel pit, but of just what was expressed in the language which was used in the deed, “gravel in said lots.” Otherwise the grantee might do just what would result in this case, whether by accident or design, we do not know, namely; leave this small pit or' hole as it was and open other pits all around it, if need be, and thereby deprive the grantor of the very source of income which he undoubtedly thought he would derive from the sale of gravel from this lot; nay, more, by abandoning the pit then open, deprive the grantor of any income whatever, and at the same time make the pit worthless by the encroachment of other pits. In other words, if the defendant’s contention is sound, the grantor, by the reserving words in his deed, obtained nothing whatever but the favor of the grantee, which is now denied him.
The exception must be confined to the lot in which the pit had been opened at the date of the conveyance. As only lot 4 was then opened, the exception applies only to the gravel that may be sold from lot 4.
We find for the plaintiff with interest from October 1, 1917, being the nearest approximate to the date of the writ.
Judgment for plaintiff for $J¡6.55.