Hornbeck v. Westbrook

Per Curiam. The proviso in the deed of 1728 was null and void. The inhabitants of the town of Rochester were not incorporated, so as to be competent to take an estate in fee; A grant to them would have been void for uncertainty, in like manner as a grant would be void to the churchwardens of a parish, orto the inhabitants of Dale, or to the commoners of such a waste. (Shep. Touch. 236. Co. Litt. 3. a.) It was decided, at the last term, that a grant to the people of the county of Otsego was void, for the samé reason. (Jackson, ex dem. Cooper, &c. v. Cory, 8 Johns. Rep. 385.) The grantors in the deed of 1728, were seised in fee, as private individuals, and were competent to convey in fee, the common lands of the town of Rochester. This was so settled in the [75] case of Jackson v. Schoonmaker. (2 Johns. Rep. 230.) And if the inhabitants were incompetent to take an estate at law, by that name, a reservation to them, in a deed in fee to a third person, would be equally void. But such a covenant or reservation to any third person would be void. A person who is not a party to a deed, cannot take any thing by it, unless it be by way of remainder. The grantor cannot covenant with a stranger to the deed. This is an acknowledged rule of law. (Salter v. Kidgley Carth. 76.) In Whitlock's Case, (8 Co. 69.) it was adndtted~ that a reservation in a deed to a stranger was void. If this proviso had any legal operation, it could not have vested a right in any other persons than those who were at the time of making the deed inhabitants of Rochester. There were no words of perpetuity, and the inhabitants were not an incorporated body, so as to be enabled to transmit a privilege to their successors. If it was any thing, it was a personal privilege, and confined to the then existing inhabitants. The right claimed by the defendant below is, then, in every point of view, absolutely groundless, and the judgment in each case ought to be affirmed- Judgment affirmed.