The deed of the 14th February, 1848, executed by the defendant to Gideon Payne, certainly conveyed to the latter whatever title the grantor had in the lands described in it. The deed executed by the executors of Gideon Payne, under the power contained in his will, vested that title in the plaintiff.
Assuming, then, for the moment, that the defendant was seized of the lots immediately prior to the execution of the deed — which is the most favorable condition for the defendant; and assuming, further, that the stipulations respecting the fallen and the dead and decaying trees are valid and operative according to their natural meaning, what right had the defendant to cut and carry off the ten living trees? They were growing upon the land in the plaintiff's possession, and *Page 111 of which he was seized in fee; and the stipulations in the deed not only do not permit the defendant to touch them, but they expressly prohibit him from doing so. It was a plain act of trespass, without a pretense of right, and whether the damages were great or small, the plaintiff was entitled to have them assessed by the jury; and, hence, the judge fell into an error in nonsuiting him. If the defendant could cut down and carry away the ten trees with impunity, he could do the same immediately with every tree on the whole fifty acres of wood land; and this judgment, if it shall be suffered to stand, will completely justify him in doing so. It is no sufficient answer to say, that the land in forest will not be valuable to the plaintiff if he is not permitted to take off the timber and wood himself, but is obliged to let it stand until the trees shall blow down and decay, and then suffer the defendant to take them to his own use. It was for the owner of the land to determine whether he would have his wood lot converted into arable land or not. In some parts of the State it would, perhaps, be beneficial to the owner of forest land to have it cleared of the timber, even if it were taken off or burned up; but, nevertheless, any one who should volunteer to do it without the consent of the owner of the land would be a wrongdoer, and would subject himself to an action for damages. This view would lead to the reversal of the judgment, however the other questions should be determined.
But as this action seems to have been brought for the purpose of settling the rights of the parties respecting this forest land, it is proper that we should examine the case in another aspect.
The positions of the plaintiff's counsel are, first, that the defendant, not being the owner of the land on the 14th February, 1848, when, in connection with his wife, he assumed to convey it to Gideon Payne, the testator, he could not reserve to himself, or make a valid exception in his own favor, of rights in perpetuity in or over the land; and, secondly, that if he were such owner, an exception or reservation of the character of the one contained in this deed would be repugnant to the grant, and void for that reason. *Page 112
As to an undivided two-thirds part of the premises, the defendant had no pretense of legal title. It was parcel of the arrangement entered into between the testator and his son, the defendant, of the 25th November, 1859, that the latter should have the use and control of these two-thirds of the premises in question for some indefinite period, and that, whenever he should pay the testator two thousand dollars, he should have a conveyance from him of that portion of the premises. The interest thus acquired did not exceed that possessed by a vendee under articles of purchase. As to the one-third part covered by the deed signed and sealed by the testator on the same day, the question is, whether any title passed to the defendant by that deed. It was not delivered to the defendant, the grantee, nor to any one as his agent or for his immediate use; but it was placed by the testator in the hands of E. Herrendeen, a third person, there to remain during the lifetime of the said testator, and then to be delivered to the grantee. The defendant was to have the immediate use and control — that is, the possession — of this part; but he bound himself to surrender that possession, if, and whenever, he should make default in providing support and maintenance for the testator and his wife, according to his agreement in that behalf. Nothing could be further from the intention of the parties than that a legal title should vest in the defendant, upon the signing of the paper and delivery of it to Herrendeen. If it should so vest, the defendant might convey or incumber the premises, and thus frustrate the other provisions of the arrangement. They contemplated that nothing would be necessary to restore the testator to his former rights in the land except the surrendering of the possession by the defendant to him. If the title did not pass, as they clearly designed it should not, no reconveyance, or other act, save the redelivery of possession, would be necessary. This was the situation of the title to the undivided one-third, unless, under some rule of law, a title immediately passed to the defendant, contrary to the obvious intention of the parties. The defendant's counsel accordingly maintains that the effect of what was done was the immediate transmission of the title *Page 113 to the defendant; or, if that position cannot be established, that an inchoate title passed, which became absolute after the death of the grantors, when Herrendeen delivered the instrument to the defendant. The cases referred to fail to maintain the first branch of the proposition. They do, however, I think, prove that a deed may be delivered to a third person, as this was, with instructions to be finally delivered to the grantee after the death of the grantor. In such a case, the weight of authority is, that no title passes until the final delivery, and that then, and thereafter, the title is, by relation, deemed to have vested as of the time of the first delivery to the third person. If it were an original question, I should suppose that such a transaction was of a testamentary character, and that it would be inoperative for want of the attestation required by the statute of wills. But the cases establish the rule as I have stated, and they should not now be disturbed. (Jackson v. Rowland, 6 Wend., 669, 670;Ruggles v. Lawson, 13 Johns., 285; Stillwell v. Hubbard, 20 Wend., 44; Tooley v. Dibble, 2 Hill, 641, 643; Goodell v. Price, id., 659, 661; Hunter v. Hunter, 17 Barb., 25;Stewart v. Stewart, 8 Comst., 317; Ladd v. Ladd, 14 Verm., 185; Norton v. Mansfield, 3 Metc., 412; Wheelright v. Wheelright, 2 Mass., 447.)
The principle thus established would show the defendant to have been seized of these premises — that is, of the undivided third — at the time of the cutting of the trees, but for his deed executed to the testator in his lifetime. At the date of that conveyance, the deed of 1848 had not taken effect, and the period had not arrived at which it was to operate to pass the title by a delivery to the grantee. But it was competent for the parties grantors and grantee in the deed to put an end to the agreement by which it was to be delivered in a manner to affect the premises in question. A different arrangement was made, by which the testator, and not the defendant, was eventually to have these premises. By that arrangement, as manifested by the terms of the deed of February, 1848, the defendant was to, and he did, release and convey to the testator all his estate, right and title of every description, *Page 114 which he had in the premises in question, reserving his growing crops and the right of possession until the first day of the ensuing November. By a further provision, he also reserved, if he had power to do so by that instrument, to himself and his heirs and assigns, in perpetuity, that is, in fee simple, at all times to take and carry away all the trees on the premises that should thereafter be blown down, all that should die, and all which should be in a decaying condition; but he was not to cut down any growing trees; and, in order to protect the right to those which should thereafter fall or be dead or decayed, the grantee was equally inhibited from cutting any growing trees. The effect of the provision was, that the wood land on the lot was to be kept perpetually in forest, so far as the hand of man was concerned, and that the consequence of the destruction of the trees by age, natural decay or the elements, was to give the defendant, and his successors in the title, the property in the wood of the trees thus destroyed. Assuming that such an arrangement, made by competent parties, in due legal form of law, would be valid and operative, the question now to be considered is, whether the defendant had such a title that he could secure to himself such rights by a reservation or exception in a deed-poll. Considered as an exception, it would, no doubt, be operative upon the dead and fallen timber then upon the lot. That, so far, certainly, as regarded the fallen trees, would be personal property, and would belong to him in right of his possession and enjoyment of the premises under the former arrangement.
But in respect to the future, and to trees then growing, but which should thereafter come within the scope of the provision, I am of opinion that the defendant had not such a title, either on the footing of an exception or a reservation. The defendant, having no title, could not of course convey any, and not being able to convey a title, he could not secure one to himself by way of exception or reservation. An exception must be parcel of the thing granted, and a reservation must be of some new right over or in the thing granted, which the grantor was competent to create and attach to the seizin of the premises. The question is the same as though the defendant *Page 115 had assumed to grant to some third person a perpetual right in the trees on this forest land of the kind of that mentioned in the reservation in this deed. Such a grant would be inoperative for the want of title in the grantor, and a right which a person cannot grant for want of title he cannot reserve to himself for the same reason. The effect of the deed, under the existing facts, was to release the grantee's right to the possession, and his equitable interest under the covenant which enabled him to purchase the two-thirds on the payment of two thousand dollars. It had also the effect, incidentally, to abrogate the arrangement by which the title of the one-third should vest in the defendant by the delivery of the deed in the possession of Herrendeen after the death of Gideon Payne and his wife. I do not conceive that it had any effect in respect to the other parcel of land embraced in it. The new arrangement was limited to the Burnett lot on which the trees were cut, and did not touch the portion of the premises which were parcel of lot No. 63. It was quite right, therefore, for Mr. Herrendeen to deliver the deed after the death of the last survivor of the grantors; but under the circumstances that delivery had no operation in respect to the Burnett lot.
The position that one cannot take under an exception or reservation to himself, a thing which he could not grant for want of title, seems obvious enough on general principles, and it is moreover well settled by authority. In Moore v. The Earl ofPlymouth (3 Barn. Ald., 66), one Windsor, having an equity of redemption, joined with parties who were seized of the premises, subject to that equity of redemption, in a conveyance by bargain and sale to parties under whom the defendant claimed, reserving to Windsor and the heirs of his body, free liberty of hawking and hunting out of and upon the premises. The defendant, who was the heir in tail of Windsor, undertook to exercise the right reserved, and the owner of the land, under the conveyance, brought trespass quare clausum; and the facts appearing from the defendant's plea, judgment was given for the plaintiff on the ground that Windsor, the party making the reservation, *Page 116 had no legal estate in the land. In Cornell v. Todd (2 Denio, 130), a person under whom the defendants claimed, on the same day conveyed to the plaintiff and another, two separate but adjoining parcels of land, one of the deeds excepting and reserving to the grantees, by a definite description, a portion of the premises included in it. It fell out that a portion of the parcel described as excepted, was a part of the land embraced in the other deed. It was held that the two deeds could not be considered as parts of one and the same transaction, and the case was therefore presented of a grantor attempting to reserve to himself a subject not conveyed by the deed in which the exception was contained. In trespass for an entry by the defendants upon the excepted part, it was held that the plaintiff was entitled to recover. These cases show that a person cannot, either by way of reservation or exception, secure to himself a title in or to real estate, of which he was not seized at the time of making the conveyance. Hence I am of opinion that the defendant had not, after the conveyance to the testator, such a title to the trees standing on the premises as would enable him to cut and take them away, though they should die, decay or be blown down.
If my brethren should concur in both or either of the foregoing conclusions, it would be unnecessary to examine the remaining questions. My opinion is, that a person seized of an estate of inheritance may convey it with such a reservation as is contained in this deed, and that the grantor would have a fee simple estate in the right reserved. No doubt such an interest would be inconsistent with the absolute ownership which the other terms of the deed would denote, and in that sense there would be a repugnancy. But similar reservations in deeds in fee have often been sustained in our courts. (Dygert v. Mathews, 11 Wend., 35; Case v. Wait, 3 Wend., 632; Borst v. Empie, 1 Seld., 33; Jackson v. Lawrence, 11 Johns., 191.) The case of Craig v. Wells (1 Kern., 315), only decides that a restriction in a grant in fee of the uses which the grantees shall make of the premises is void as repugnant to the estate granted. If the grantor had reserved to himself the rights which he prohibited the grantee from *Page 117 exercising, it was conceded that the reservation would have been valid.
I am in favor of reversing the judgment appealed from, and ordering a new trial.
On the first and principal ground, DAVIES, WRIGHT, DAVIS, BROWN and PORTER, JJ., concur with DENIO, Ch. J. On the other points discussed, WRIGHT, DAVIES, PORTER and BROWN, JJ., were with POTTER, J.
CAMPBELL and POTTER, JJ., dissented from the judgment of this court.
Judgment reversed. *Page 118