Randall v. Randall , 59 Me. 338 ( 1871 )

Appleton, C. J.

Both parties claim title under Nathaniel Randall, who on Sept. 17, 1844, conveyed by deed of quitclaim the west half of his farm to one Bickford, “ excepting, however, the reserve of the four [rows of apple-trees on the north side of the orchard, with a suitable passway to and from the same, and the land on which they stand. Also, so much of the second growth of ash timber as I shall want for my own personal use.”

On February 13, 1861, Nathaniel Randall conveyed by deed of warranty to the plaintiff the east half, of said farm, ’together with the land excepted or reserved in his deed to Bickford. The land is described by metes and bounds including the parcel so excepted or reserved. The plaintiff entered under this deed and has remained in the exclusive possession and occupation of the whole land included in his deed.

The question presented is whether the words in the deed from Randall to Bickford, “ excepting, however, the reserve of the four rows of apple-trees, etc., and the land on which they stand,” and of “ so much of the growth of ash timber as I shall want for my own personal use,” constitute an exception or a reservation.

“ A reservation is á clause in a deed, whereby the grantee reserves some new thing to himself out of the thing granted, and not in esse before; but an exception is always a part of the thing granted, or out of the general words and description in the grant. ” 4 Kent’s Com. 468. In all deeds the intention is to govern. The land upon which the four rows of apple-trees stand is part of the thing granted,and is excepted from the grant. The ash trees were part of the thing.granted. Neither the land nor ash trees are new things and not in esse before. In The Earl of Cardigan v. Armitage, 9 E. C. L. 60, says Bailey J., “the language-of this feoffment is, “ except and always reserved,” out of the said feoffment unto Sir Thomas Danby and his heirs all the coals. The coals were part of the thing granted and in esse at the time. The consequence, therefore, according to Co. Litt. is that if this, which in words was an exception, operated in point of law as ah exception, the coal 'semper cum Sir T. D. fuerunt. They were never out of him, and without the words of inheritance, “and his heirs,” would have remained as before in Sir Thomas Danby and his heirs. Shepp. Touch. 100.” There are cases reported where the word reserve is treated as an exception, as in Dyer 19 a. Smith v. Ladd, 41 Maine, 314. When a reservation is to be construed as an exception, no words of inheritance are necessary, in order that rights reserved or excepted may go to the heirs or assigns -of the grantor. Winthrop v. Fairbanks, 41 Maine 307.

This result is in accordance with the acts as well as the obvious intention of the parties. Nathaniel Randall intended to except half of the orchard, and, excepting it, he conveyed it by deed of warranty to the plaintiff. The grantees of the west half acquiesced in this construction until the trespass, which constitutes the subject-matter of this suit. According to all the authorities here was no reservation, but an exception. Judgment for plaintiff for ten dollars.

CtjttiNg, KeNt, Walton, Barrows, Daneoeth, and Tapley, JJ., concurred.