
    J. E. Hornbeck against Westbrook. The Same against The Same. The Same against The Same.
    ALBANY,
    Jan. 1812.
    The inhabitants of a town, not be~ ins inoorpora~ ted, are inca~ pable in law, to take any estate hi fee. And aproviso in a deed toA. dated in 1728, reserving to the inhibitants of the town of Rocheater, which was not ineor~ porated, the right to cut wood on the lands conveyed, when not in frnce, &c. Was heid to be void. If operative it would Only give the right to the inhabitants of the town, liv. ing at the of perpetnity,
    IN error, on certiorari, from a justice's court. The return in the first cause, stated that the parties voluntarily appeared before the justice, and Westbrook, the defendant in error, declared against Hornbeck, the plaintiff in error, in an action of trespass qvare clausumfregit; and for cutting wood, &c. the 1st of April, 1810, on a certain tract of land, which Jacob De Wilt and others, trustees of the town of Rochester, by virtue of the patent to them, by deed, on the 6th of January, 1728, conveyed in fee to Cornelius Hornbeck, for a valuable consideration. The defendant pleaded and justified the trespass, because the deed contained a proviso, that the inhabitants of Rochester should be allowed to cut and carry away wood, &c. from any part of the said land, not in fence, and that he was, and had been, from the 1st of January, 1800, an inhabitant of Rochester, and, by virtue of the said proviso, he entered and cut the wood, &c. and that the locate in quo was not in fence, &c. To this plea there was a general demurrer and joinder, on which the justice gave judgment for the plaintiff for three dollars.
    
      In the Second cause, the return also stated that the parties voluntarily appeared before the justice, and Westbrook declared against Hornbeck, in an action of trespass quare clausum, fregit, and for cutting and carrying away wood, &c. on the 2d of April, 1810, as in the first cause; to which the defendant put in the same plea ; and the plaintiff demurred, and for cause, stated that the proviso in the deed was limited to such persons as were inhabitants of Roches-' ter, on the 6th of January, 1728, and that they were allowed to cut wood, &c. for their own use only. There was a joinder in demurrer ; on which the justice gave judgment for the plaintiff for three dollars.
    In the third cause, the return stated the same proceedings as in the last cause, except the trespass was laid on the 3d of April, 1-810, and the defendant in his plea, alleged that the locus in quo was enclosed only by a bush fence, and not by any fence for useful or agricultural purposes; and the plaintiff in his replication, stated that ever since the date of the patent to the trustees of the town of Rochester, the trustees had been in the practice of selling the common lands, by deeds with such provisoes; and that in consequence of such provisoes, it had been a prevalent custom in the town, and universally adopted by the proprietors of the lands, under such deeds, to enclose them with such a fence, for thé purpose of excluding them from the operation of the reservation; and that the defendant knew of such a custom, and that the premises were so enclosed. The defendant rejoined and admitted the custom, and that the locus in quo was enclosed with such customary fence, but that the fence was insufficient, and the custom invalid, &c. The plaintiff demurred, and the defendant joined in demurrer. The justice gave judgment for the plaintiff for three dollars.
   Per Curiam.

The proviso in the deed of 1728 was null and void. The inhabitants of the town of Rochester were not incorporated, so as to be competent to take an estate in fee; A grant to them would have been void for uncertainty, in like manner as a grant would be void to the churchwardens of a parish, orto the inhabitants of Dale, or to the commoners of such a waste. (Shep. Touch. 236. Co. Litt. 3. a.) It was decided, at the last term, that a grant to the people of the county of Otsego was void, for the samé reason. (Jackson, ex dem. Cooper, &c. v. Cory, 8 Johns. Rep. 385.) The grantors in the deed of 1728, were seised in fee, as private individuals, and were competent to convey in fee, the common lands of the town of Rochester. This was so settled in the case of Jackson v. Schoonmaker. (2 Johns. Rep. 230.) And if the inhabitants were incompetent to take an estate at law, by that name, a reservation to them, in a deed in fee to a third person, would be equally void. But such a covenant or reservation to any third person would be void. A person who is not a party to a deed, cannot take any thing by it, unless it be by way of remainder. The grantor cannot covenant with a stranger to the deed. This is an acknowledged rule of law. (Salter v. Kidgley Carth. 76.) In Whitlock's Case, (8 Co. 69.) it was adndtted~ that a reservation in a deed to a stranger was void. If this proviso had any legal operation, it could not have vested a right in any other persons than those who were at the time of making the deed inhabitants of Rochester. There were no words of perpetuity, and the inhabitants were not an incorporated body, so as to be enabled to transmit a privilege to their successors. If it was any thing, it was a personal privilege, and confined to the then existing inhabitants.

The right claimed by the defendant below is, then, in every point of view, absolutely groundless, and the judgment in each case ought to be affirmed-

Judgment affirmed.  