Keeler v. Wood

The opinion of the court was delivered by Aldis, J. The defendant conveyed by a warranty deed certain lands in Brandon. At the end of the description of the lands are these words: “ reserving from the premises above described, three west rows of apple trees in the orchard, two stalls in the southwest corner of the barn and twelve feet square over said stalls for hay, [245] which is reserved for the use of our mother, Mary Wood.” The question for this court to decide is, do those words reserve an estate for the life of Mary Wood, or an estate in fee simple ? We are to put a construction upon these words according to the plain sense of them, and as the parties themselves must be supposed to have understood them at the time the deed was executed. If the words had been “reserving from the premises” (the land described) “for the use of our mother, Mary Wood,” it seems to us that there could have been no doubt that an estate for life only was intended. On the other hand if the sentence had been written, “ reserving from the premises, etc., (the land described), and had wholly omitted the words “ which is reserved for the use of our mother,” the meaning then would have seemed to be plainly the reservation of the land described in fee simple; it would then have been construed as an exception of the land so described from the operation of the deed. It is contended on the part of the defendant that the words which follow the description of the land, viz : “ which is reserved for the use of our mother,” serve only as an additional description of the land, and were not intended to describe the nature and character of the estate reserved in the land. This construction can certainly be adopted without any great violence to the language used, but it does not seem to us to be its natural signification. The clause, “ which is reserved for the use of our mother,” seems to us to be used as referring back to the whole of the preceding reservation and indicating that it (the whole of it) was made for the use of the mother, Mary Wood. So, too, the kind and character of the property reserved, indicate the same intention. It is not unnatural to reserve the use of two stalls and twelve feet square over them for life, but it is unnatural to make such a reservation in fee simple; and the same may be said of the three west rows of apple trees in the orchard. It indicates an intent to use the apples of the trees rather than to have and own a specific piece of land, a use natural and consistent with a grant for life; but if the intent had been to reserve the land itself in fee simple, it seems as if language better adapted to describe the land itself, and not pointing to the use of the apple trees merely, would have naturally been used by the conveyancer. So the word “ reserving,” strictly and technicálly used, would -imply a [246] reservation of some use, or lesser estate, out of the estate granted, while the words “ excepting ” or “ saving ” imply an exception out of the conveyance of a part or parcel of the very thing granted, and are appropriate to describe the exclusion of the land itself from the operation of the deed. This distinction, however, is so rarely observed by those who draw deeds in this country, the words “ excepting ” and “ reserving ” being generally used as synonyms, that perhaps but little weight ought to be attached to the use of the word reserving. As the plain and natural meaning of the whole sentence, construed together, seems to us to indicate the reservation of an estate for life only — as such construction would seem to be reasonable and consistent with the character and description of the property so reserved, and as the construction in doubtful cases is to be against the grantor, we have concluded that the deed should be construed as reserving only au estate for life. The rule of damages is the value of the land at the time of eviction, the costs and damages which the plaintiff has been obliged to pay to the adverse party in the suit brought against him, with interest, his own costs in the suit, with interest, and necessary expenses, which include counsel fees. The judgment of the county court is reversed.