This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
It has been decided in England that an exception, thus to be subsequently ascertained by election, involved an attempt to create an estate in futuro, and might consequently be invalid, under the Rule against Perpetuities, or otherwise. Savill Bros., Ltd. v. Bethell (1902) 2 Ch. 523.
33. Melton v. Monday, 64 N. Car. 295 (subsequent survey); Ex parte Branch 72 N. Car. 106; (homestead to be set off); Lang-don v. New York, 6 Abb. N. Cas. 314, 93 N. Y. 129 (street to be laid out); Consolidated Ice Co. v. New York. 166 N. Y. 92, 59 N. E. 713 (street to be laid out).
34. Bromberg v. Smee. 130 Ala. 601, 30 So. 483; Swindall v. Ford, 184 Ala. 137, 63 So. 651; Mooney v. Cooledge, 30 Ark. 640; Baldwin v. Winslow, 2 Minn. 213; Mcallister v. Honea, 71 Miss.
Since an exception is in effect merely a part of the description of the thing granted, the subject of the exception remains in the grantor, as before the conveyance, and no words of inheritance or other words of limitation are necessary in order that the grantor may retain the same estate in the thing excepted as he had before.35
An exception, in its very nature, cannot operate in favor of a person other than the grantor.36 But we frequently find in a conveyance language undertaking to except a part or parts of the land as being the property of another, or as having been previously sold or conveyed to another.37 In such cases it is obvious that the rights of such other in the part excepted are not properly based on the exception, but exist prior thereto, and the effect of the words of exception is merely
256, 14 So. 264; Den d. Waugh v. Richardson, 30 N. C. 470.
35. Smith v. Ladd, 41 Me. 314; Lipsky v. Heller, 199 Mass. 310, 85 N. E. 453; Negaunee Iron Co. v. Iron Cliffs Co., 134 Mich. 264, 96 N. W. 468; Emerson v. Mooney, 50 N. H. 318; Whitaker v. Brown, 46 Pa. St. 197; Mandle v. Gharing. 256 Pa. 121, 100 Atl. 535; Wheeler v. Wood, 30 Vt. 242. And see cases cited ante Sec.. 362.
The occasional Massachusetts decisions to the contrary (Curtis v. Gardner, 13 Mete. (Mass.) 457; Jamaica Pond Aqueduct Corp. v. Chandler, 9 Allen (Mass.) 170; are evidently no longer law. See Wood v. Boyd, 145 Mass. 176, 13 N. E. 476; Claflin v. Boston & Albany R. Co., 157 Mass. 489. 20 L. R. A. 638, 32 N. E. 659. The decision in Knotts v. Hydrick. 12 Rich. L. (S. Car.) 314 is based on a passage in Sheppards'
Touchstone at p. 100, which is corrected in Preston's edition of the work.
36. Parsons v. Miller, 15 Wend. (N. Y.) 561; Beardsley v. New Berlin Light & Power Co., 207 N. Y. 34, 100 N. E. 434; Redding v. Vogt, 140 N. C. 562, 6 A. & E. Ann. Cas. 312, 53 S. E. 337. Any suggestion contra in Stone v. Stone. 141 Iowa, 438, 20 L. R. A. (N. S.) 221, 18 Ann. Cas. 797, 119 N. W. 712, cannot be accepted.
But an exception in terms of a part of the land in favor of a third person may operate in favor of the grantor, to exclude that part from the conveyance. Corning v. Nail Factory, 40 N. Y. 209. .
37. Lloyd v. Oates, 143 Ala. 231, 111 Am. St. Rep. 39, 38 So. 1022; Adams v. Hopkins. 144 Cal. 19, 77 Pac. 712; Mayberry v. Beck, 71 Kan. 609, 81 Pac. 191; Sanford v. Stillwell. 101 Me. 466, to charge the grantee, and persons claiming under him, with notice of the rights of such other person. So an exception, so called, of an outstanding dower interest,38 does not confer on the widow a dower interest not previously existent, but merely recognizes the existence of such interest.
- Sufficiency of reservation. Upon the question whether words of inheritance are necessary in a reservation, in order to confer an interest greater than for life, the cases are not in accord. It would seem, on principle, that such words would be necessary, in the creation of an easement or right of profit by reservation, when they would be necessary in the creation of such a right by grant, and not otherwise. The cases, however, ordinarily discuss the question without reference to the consideration of the necessity of such words in a errant. It has occasionallv been decided, or asserted, that such words are necessary in order to reserve an easement to the grantor and his heirs,39 and this view has been adopted in at least one state in which a conveyance of the land itself in fee simple may be made without the use of such words.40 In the greater number of states the courts have refused to apply the requirement of words of inheritance to the case of a reservation of an easement, this view being sometimes based on the statute dispensing with words of inheritance for the purpose of creating an estate in fee simple, and sometimes on the theory that the easement must be presumed to be of a quantum corresponding to the estate of the neighboring land retained by him, to which the easement is appurtenant.41
64 Atl. 843; Midget v. Wharton, 102 N. C. 144, 8 S. E. 778; In re Stokeley's Estate, 19 Pa. 476; Bell v. Gardner & Lacey Lumber Co., 85 S. C. 182, 67 S. E. 151; Har-man v. Stearns, 95 Va. 58, 27 S. E. 601.
38. Canedy v. Marcy, 13 Gray (Mass.) 373; Meserve v. Meserve, 19 N. H. 240; Crosby v. Montgomery, 38 Vt. 238; Swiek v. Sears 1 Hill (N. Y.) 17.
39. Koelle v. Knecht, 99 111. 396; White v. New York & N.
E. R. Co, 156 Mass. 181, 30 N. E. 612; Claflin v. Boston & A. R. Co., 157 Mass. 489, 20 L. R. A. 638, 32 N. E. 659; Simpson v. Boston & M. R. R., 176 Mass. 359, 57 N. E. 674; Hornbeck v. Westbrook, 9 Johns. (N. Y.) 73; Kister v. Rieser. 98 Pa. 1.
40. Dawson v. Western M. R. Co., 107 Md. 70, 14 L. R. A. (N. S.) 809, 126 Am. St. Rep. 337, 15 Ann. Cas. 678, 68 Atl. 301. See Negaunee Iron Co. v. Iron Cliffs Co., 134 Mich. 264, 96 N. W. 468.