Allen v. Scott ( 1838 )

Wilde J.

delivered the opinion of the Court. The plain-' tiff alleges in his bill, that he was seised and possessed, on the 25th of January, 1836, of an undivided fourth part of a certain brick factory, in common with the defendants, and continued so seised and possessed up to the time of filing the bill, and claims his proportional part of the rents and profits received by the defendants during that time. The defendants deny the plaintiff’s title to any part of the factory ; and the case depends on the question of title. Other questions have been raised and argued, but they become immaterial, as the plaintiff, in the opinion of the Court, has failed to show any title to the premises claimed.

Both parties claim title under one Joseph Ray. The plaintiff, having recovered judgment against Ray, levied his execution on one fourth part of the factory as his personal property ; and Benjamin Ray, one of the defendants, having also recovered judgment against Joseph Ray, levied his execution on the same fourth part of the factory, and on the land on which the factory stood, as the real estate of Joseph Ray. It appears in evidence, that before either of these executions was levied, Joseph Ray had mortgaged his share of the lot of land on which the factory stood, excepting however the factory ; and the argument for the plaintiff is, that this exception extends only to the factory building, and not to the land under it, nor to the water power as appurtenant thereto ; and consequently, that as Joseph Ray had no title to the land nor any interest in it, the factory building must be considered as personal estate This argument, however, cannot, as we think, be maintained. This exception in Ray’s mortgage, like a grant, must be construed according to the meaning of the parties, if not incon sistent with the rules of law.

Erom the nature of the property there seems to be no pestion as to the meaning of the parties. They undoubtedly intended that the mortgager should continue to have the same title in the factory, and to Occupy and enjoy it in the same manner as he had done, and had a right to do, previous to the mortgage. He cannot be supposed to have reserved his portion of the building for the purpose of removing it; for this, if it could be done, would be nearly a total destruction of the property. And besides, the factory could not be divided so as to allow Ray to hold his part in severalty; and he had no right to remove the building without the consent of the other tenants in common. It follows therefore, that he could hold and enjoy nothing of any value under the exception, unless he had the right to occupy the factory, with the other tenants in common, as it stood at the time of the mortgage ; and we think it very clear that he had this right under the exception in the mortgage deed. Such a right of occupation is an interest in the land amounting to an estate in fee, defeasible perhaps by the destruction of the factory ; but of this it is not necessary to give an opinion. Nor is it necessary to decide, that Joseph Ray had an estate in fee in the land ; for if he had any right and interest in the land, the factory was not severed from the realty, and was not personal estate. That he had, with the other tenants in common, the exclusive right to the occupation of the land on which the factory stood and to the enjoyment of the water privilege, cannot, we think, admit of a reasonable doubt. When property is granted, all that is necessary to the enjoyment of the grant is impliedly granted as incident to the express grant; and the same rule of construction applies to an exception in a grant.

By the grant of a house a conduit which conveys water to the house passes. Bac. Abr. Grant, I 4. So, by a grant of a messuage or house, the garden and curtilage pass. Co. Litt. 5 b ; Carden v. Tuck, Cro. Eliz. 89. And if a man grant omnes hoscos suos, the land, as well as the wood, passes. So, if he grant a boilery of salt, the land passes. Co. Litt. 4 b. In the case of Archer v. Bennet, 1 Lev. 131, it was found by special verdict, that A being seised of a mill and of a kiln at the end ot the close wherein the mill stood, granted the mill; and the question was, whether the kiln passed ; and it was held, that it would have passed if it had been found that the kiln had been necessary to the mill. So, a grant of a mill passes the right to the water also. Bac. Abr. Grant, I 4 ; Wetmore v. White, 2 Caines’s Cas. 87.

A similar rule of construction applies to exceptions in a grant. Thus, if a man lets his manor except the woods, underwoods, &c. the soil is excepted. 2 Roll. Abr. 455 ; Ive v. Sams, 2 Cro. Eliz. 521.

Upon these authorities and rules of construction we think it very clear, that Joseph Ray’s title to the factory and the land on which it stood, and the water privilege, did not pass by his mortgage deed; and that by Benjamin Ray’s levy the title passed to him, and is a valid title, subject only to a prior out standing mortgage which does not affect the question of title between the present parties.

Bill dismissed