Roberts v. Robertson

The opinion of the court was delivered by Powers, J.

The plaintiff executed to the defendant and others, on the 5th of February, 1870, a deed of certain land, adjoining the cemetery in Putney, with full covenants.

The deed contains a specific description of the land conveyed, and contains also this clause : “ Said J. C; Roberts reserving lots sold, Nos. 1, 2, 3, ... . 32, 33 —in all 29 lots designated by number like the foregoing. The plaintiff now claims title to lots 32 and 33 under the clause above quoted. The defendant claims that the plaintiff excepted from his deed such lots only as he had in fact sold, and that lots 32 and 33 having in fact never been sold, passed to the grantees in said deed. The word “ reserving,” used in the deed, in strict sense means excepting.

The office of an exception in a deed is to take something out of the thing granted that would otherwise pass, while a reservation creates in favor of the grantor some new right out of the thing granted, which was not before in esse. The terms, however, as used in deeds, are often treated as synonymous ; and words creating an exception are to have effect as such, although the word reservation is employed. In this case the grantor undertook to withdraw from his grant certain lots ; and his language is to be construed as an exception. The same rules of construction apply to an exception in a deed as govern the grant itself. Indeed, the books treat of an exception upon the theory that it is a regrant by the grantee to the grantor of the estate described in the exception.

It is a fundamental rule that deeds shall be construed in a way to effectuate the intent of the parties. “ If upon the whole instrument the estate intended to be conveyed can be ascertained with convenient certainty, a further inconsistent or untrue description of it will be disregarded. Falsa demonstratio non nocet. Many illustrations of this rule are found in the reported cases. Thus, a deed of all A’s interest in lot No. 7, which was conveyed to A by B, when in fact A’s title came from C instead of J$, was held to con *693 vey A’s interest in lot 7. Hathaway v. Juncau, 15 Wis. 264 . The evident intent of the deed was to convey A’s interest in lot No. 7. The origin of A’s title was mere matter of description of the interest intended to be conveyed, and hence was disregarded. In Smith v. Strong, 14 Pick. 128 , the deed described certain pieces of land by numbers “ in the Boston purchase,” among which were the lots in question, Nos. 15 and 43. These lots, in fact, were not in the “ Boston purchase,” but north of it; nevertheless, they were held to have passed on the ground that the specific designation of the lots by number controlled the general description as to their location. In Doe d. Gains v. Rouse, 5 C. B. 422, the testator devised certain property to his ‘dear wife Caroline.’ His lawful wife Mary was living at his death; but he had gone through the ceremony of marriage with another woman named Caroline, who was living with him at his decease. The words ‘ dear wife ’ were false as applied to Caroline, and were in strictness only applicable to Mary. The court held that Caroline took the estate devised, as she was specially named as devisee; and the words ‘ dear wife ’ would be treated as false demonstration.

In all cases the inquiry is, Is there a grant of a specific thing ? if so, the addition of an untrue circumstance' attending it, shall not defeat the grant. The description, so far as it is false, is treated as applicable to no subject at all; so far as it is true, as applicable to one subject only. Morrell v. Fisher, 4 Exch. 604; Webber v. Stanley, 16 C. B., n. s. 755.

Here lots 32 and 33 are described as lots sold. If the grantor had said, “ I except all the lots heretofore sold,” and had added nothing more by way of description, the reasoning of the defendant would be sound. The exception then would cover only such lots as had in fact been sold. But the plaintiff specially enumerates the lots excepted from his grant, and describes them by number, the only practicable way in which such lots can be described. The false circumstance that they were sold, added to the certain description given, must be disregarded.

Judgment reversed, and judgment for plaintiff for three dollars damages and costs.