Bridger v. Pierson

Present, E. D. Smith, Dwight and Johnson, JJ. By the Court Johnson, J. Upon the facts found by the referee, the conclusions of law are unquestionably correct. The deed from the defendant to the plaintiff is deemed, in law, to have conveyed the entire and exclusive title to the premises therein described, with all the rights incident to a [483] perfect and exclusive ownership, except such rights as were reserved by the terms of the instrument. The reservation is of a right of way only, as the same was then used. This was a reservation to the grantor only, and not to any stranger or third person whatever. No other person could claim or have any right to the premises conveyed, or to anything growing out of the same by reason of this reservation. This is the settled rule of construction in regard to reservations in conveyances, and has been from time immemorial. (1 Prest. Shep. Touch., 78; Whitlock’s case, 8 Co., 69, b; Hornbeck v. Westbrook, 9 Johns., 73 ; Ives v. Van Auken, 34 Barb., 566.) A reservation is always of something issuing or coming out of the thing granted, and not a part of the thing itself. So that the entire and absolute estate was granted by the conveyance in question, with the reservation of the right of way over a particular part, to the grantor only. The covenant in the deed assures to the grantee the quiet and peaceable possession and enjoyment of the entire premises without exception or reservation, save that to the grantor, against any and all other persons lawfully claiming such premises or any right therein. The subsequent quit-claim deed from the defendant to the plaintiff must be held, undoubtedly, to have extinguished the right of way reserved by the first grant, or to have vested it in the plaintiff, which is the same thing. But this is of no moment in this case, as neither the reservation in the first grant, nor the quit-claim, affected at all the rights of Beeves, who claimed a right prior to the plaintiff’s title, under his deed from the defendant. This right, it appears, Beeves established in an action as one existing in him, prior and superior to the plaintiff’s, and the plaintiff’s right and title were, by the judgment of the court, made subservient to that of Beeves ; and Beeves has been put into possession and the enjoyment of his right of way over the plaintiff’s lands. This is unquestionably an ouster, so far as this right is concerned; and it is equally certain that it was embraced in the covenant in the defendant’s grant to the plaintiff. It was against any prior and paramount right in another, that the grantor under [484] took to warrant and defend. It is claimed, on the part of the appellant, that the covenant should not "be construed so as to embrace this right which Reeves had before the plaintiff’s grant, for the reason that it is evident that this was the right which the defendant intended to except and reserve from the grant. But the parties must be held to have intended just that, which is the legal effect of the instrument. This is clearly a reservation, and not an exception. There are cases, where, though the word “ reservation ” only is used, the courts will hold it to be an exception ; as where the reservation is of a distinct and severable part of the thing granted, as in the case of Borst v. Empie (1 Seld. 33). But here the reservation is not of the thing granted, but only of something pertaining to the thing granted, or issuing out of it. This is the distinction between an exception and a reservation. And a reservation, as matter of law, being only to the grantor himself, it follows that the covenant here, covered all other outstanding rights. The defendant had notice to defend the action brought by Reeves, and failed to do so. He is, therefore, bound by that judgment, and this action was well brought. The judgment must, therefore, be affirmed. Judgment affirmed.