
    The Long Island Railroad Company v. Nathaniel Conklin and Emily A. Conklin.
    A deed of land to a railroad company, after describing one parcel, by metes, and bounds, and stating that it was to be for the uses and purposes of the road proper, and contained an area of sixty square rods, proceeded as follows: “Also, in addition to which said sixty square rods, the Long Island Railroad Company may be further entitled to an extra additional width of seventy feet on the south side of said railroad, for the use's and purposes of a side track, engine house, depot,” &c., “provided such buildings may be used for purposes of railroad only, and which-additional land, contains an area of sixty-four rods,” &c., “ to have and to hold all and singular the above mentioned and described premises, together with the appurtenances, unto the said parties of the second part, their successors and assigns •forever,” concluding with the usual covenant for the quiet and peaceable possession of “the said premises” by the grantors, theii successors and assigns forever:
    
      Held, that the deed was sufficient to pass to the grantees the title to both the parcels of land described therein.
    That the meaning of the deed was this: “ In consideration of one dollar, we have granfed, bargained and sold to the railroad company sixty-four square rods of land for their road proper; also seventy rods, in addition, which they may be entitled to for a side track, engine house,” &c.
    
      Held, also, that if any doubt existed in regard to the construction and effect of the deed, the covenant for quiet enjoyment of the property by tho grantees, estopped the covenantor, and those claiming under him, from interfering with such enjoyment.
    This is an action of ejectment, to recover possession of a piece of land seventy feet wide and two hundred and fifty ■ feet long, on the south side of and adjoining the track of the Long Island Railroad, at Deer Park station, Suffolk county. On the trial, before Mr. Justice Lott, at the Suffolk circuit, in October, 1859, the plaintiffs claimed the premises by virtue of a deed from Edward Dodd, (who was the "owner at the date of the deed,) the material portions of which are as follows: “The said party of the first part,” (Dodd and wife,) “for and in consideration of one dollar, to them in hand paid, * * * have granted, bargained, sold, aliened, remised, released, conveyed and confirmed, and by these presents do grant, bargain, sell, alien, remise, release, convey and confirm, unto the said parties of the second part,” (the plaintiffs,) “and to their successors and assigns forever, all that certain piece or parcel of land, situate, lying and being in the town of Huntington, county óf Suffolk and state aforesaid, being known and bounded as follows: Commencing at a point on the ,-oad leading from Dix Hills to Babylon, commonly called he straight path, where the location of the second diviion of the Long Island Railroad crosses the same, and whence along said railroad, the centre line of which bears lorth seventy-nine degrees east, a distance of two hundred tnd fifty feet, and which said line of road is to have a uniform width of four rods, for the uses and purposes of the 'road proper, and comprises an area of sixty square rods. Mso, in addition to which said sixty square rods, the Long Island Railroad Company may be further entitled to an extra additional width of seventy feet on the south side of said railroad, for the uses and purposes of a side track, engine house, depot, or such buildings and appendages to said road as may be considered necessary, provided such buildings may be used for purposes of said road only, and which additional land contains an area of sixty-four square rods, more or less, together with all and singular the tenements, hereditaments and appurtenances thereunto belonging,” * * * “ to have and to hold all and singular the above mentioned and described premises, together with the appurtenances, unto the said parties of the second part, their successors and assigns forever.” The deed concluded with the usual covenant on the part of Edward Dodd, for the quiet and peaceable possession of “the said premises,” by the parties of the second part, their successors and assigns forever. Soon after the date of this conveyance to the plaintiffs, which was in December, 1841, the plaintiffs built an engine house, which stood partly upon the premises in question, and a turn-out track was constructed, running into it. This, however, was removed about a year afterwards to another station. They subsequently constructed a second building for an engine house, partly on the same premises, which remained from 1844 to 1854, and subsequently a tool house, on the same ground, which remained in use by the plaintiffs to the time of the trial. Some time after 1850, the owner of a paper mill in the neighborhood built a house for storing paper on the seventy feet, with the consent of the defendants’ grantor, and the builder paid rent to such grantor until the time when he conveyed to the defendants. The vacant premises were used by the plaintiffs, and by persons having wood for market, for storing wood. The plaintiffs gave their consent to the owners of the wood, for such use, but made no charge for it. The whole prémises, at the time of the conveyance to the plaintiffs, were covered with timber, and the plaintiffs’ grantor cut and removed the timber without objection from the plaintiffs.
    In 1855, the son and heir of Edward Dodd, (the father having died previous to that time,) sold and convéyed the whole seventy feet to the defendants, who, in 1856, erected a store thereon, at a "cost of $1,500, of which they were in possession at the commencement of the action, claiming title to the whole seventy feet.
    On these facts the judge at the circuit dismissed the complaint, on the ground that the deed of Dodd and wife to the plaintiffs did not, by its terms, convey such an interest in the premises claimed as would sustain an action of ejectment. The plaintiffs appealed to the general term, where the judgment dismissing the complaint was reversed and a new trial ordered. From that judgment the defendants bring the present appeal, stipulating that final judgment be rendered, in case the order for a new trial shall be affirmed. The causé was submitted on printed arguments.
    
      
      J. Lawrence Smith, for the appellants.
    The complaint was properly dismissed. The plaintiff had not such a valid subsisting interest in the premises as is required to sustain an action of ejectment. (2 E. S. 303, § 3, 5th ed. vol 3, p. 592.)
    I. The deed clearly did not convey a present interest in the premises. The terms used in it in relation to this tract of land are widely different from those used in relation to the first described tract. The first tract is conveyed positively by the usual words. The person who drew the instrument well knew, it would appear, what are the proper words of conveyance, and actually used such words. If the fee of the second tract was intended to be conveyed, why were not the same terms used? “ Also, in addition. to which sixty rods, the company may be further entitled to an extra additional width of 70 feet,” &c., 11 for the use and purposes * * * provided,” &c. There was nothing to call for this change of phraseology, if it was intended to convey a present interest in the whole of the premises; and the absence of such intention is the only rational explanation of this change of phraseology. The words used are equivalent to saying the four rods are sufficient for present purposes, but you may, at some future time, upon the occurrence. of some future event, be further entitled, &c. The question naturally arises, when and upon what conditions may they be so entitled? The deed being ambiguous, we may resort to the context to assist us in its construction. We may also resort to the construction which the parties have themselves put upon it by their own acts. The acts of the defendant and his grantors have been open and notorious—indicating, without ambiguity, a claim of absolute ownership. The habendum clause in the deed does not help the plaintiff. The office of the habendum is to limit the certainty of the estate granted, It is in the premises of the deed that the thing is really granted.' (4 Cruise Dig. 272. sec. 67; 273, secs. 73, 75; Jackson v. Ireland, 3 Wend. 99; et vide Sumner v. Williams, 4 Mass. R. 162.) But the deed did not convey, either in presentí or futuro, a legal title in the land. “ May be entitled,” “ for the uses,” &c., “provided,” &c.' The most that it was intended that the plaintiffs ever should have was the right to use the land, or such portions of it as might be necessary. The legal title remained in the grantor; and he could bring an action of ejectment or trespass against any one who injures the land, or appropriates it to any other use than the servitude. (15 Barb. 358.) And even if viewed as conferring a presr ent interest, the grant must be construed to be only an easement; and ejectment will not lie for an easement. (The North Turnpike Co. v. Smith, 15 Barb. 358; Adams v. The Saratoga & W. R. R. 11 Barb. 414; Child v. Chappell, 5 Selden, 246.)
    II. We are not here to ascertain what are the plaintiffs’ rights (if any) under the deed. The question simply is, Have they 'the right to recover in this action? To entitle them to recover, they must have the legal estate; (Jackson v. Demont, 9 Johns. 60; Wright v. Douglass, 3 Barb. 554; Adams on Ejectment, 43; Carroll v. Norwood's Heirs, 5 Har. and Johns. 464;) which we have shown they have not. An equitable title cannot prevail against the legal estate. (Jackson v. Sisson, 2 Johns. Cas. 321; Jackson v. Harrington, 9 Cow. 88.) The jury could not, under the evidence in this case, have found a verdict for the plaintiffs, under either subdivision of § 23 (§ 30) of the statute relative to ejectment. . (3 R. S. 5th ed. 594;- 2 R. S. 1st ed. 307.) The learned judge who delivered the opinion in the court below coincides in all the positions above taken. He admits, that by the terms of the deed, no title exists in the grantee. But he assumes that, from the whole tenor of the deed,' it was the intention of the grantor to pass a fee. Starting on this theory, he reconstructs the deed to adapt it, as he. thinks, to that position. It is submitted, that it is the business of the courts to construe deeds, not to make them. The learned judge cites some cases where one word has been substituted for another in construing deeds and wills; but it will be borne in mind, that in all' those cases the word was so substituted to carry out the manifest intention of the grantor. Certainly no one, be he lawyer or layman, can say, after reading this deed, that it manifests a clear intention, on the part of the grantor, to convey a present estate in the lands in controversy, and no authority cited by the learned judge, ór any argument used.by him (we say it with all due deference), helps or tends in any way to warrant such a conclusion. The learned judge insists, that although the words we are construing do not manifest the intention he suggests (and the habendum clause does not do it), yet the other portions of the deed—i. e., the words of bargain and sale—manifest such intention; and cites the case of Jackson v. Delacroix (2 Wend. 433), in support of his position. That case, if it has any bearing on this one, is adverse to the position of the judge. There, the court was construing an instrument concerning the letting of premises; and though it contained words of present demise (as do the formal parts of the deed in this case contain words of grant); but, subsequently, there was inserted an agreement by the owner to make alterations, &c., and by the other party to take a lease when the alterations should be made; and the term was stipulated to commence from the time that the improvements were so made. The words of the present demise were disregarded, and the instrument was held not to be a lease, but an agreement for a lease. So in our case the words of bargain and sale, so far as this tract of land is concerned,' may be disregarded; and they are, as they were used in the lease above referred to, mere formal words. So it may be perfectly consistent that the words of bargain and sale, and the habendum and warranty clauses, may be applicable to the first piece of land, and not to the second. In other words, a deed of bargain and ‘ sale of one piece of land may be perfect in itself, and yet contain independent covenants and provisions relative to another piece. The learned judge assumes that this whole instrument is a deed of bargain and sale, and nothing else; and theú insists, “ that if the words we are construing were not inserted for the purpose of giving the railroad company a title, it is impossible to say what object the parties had in view.” We think the judge here assumes too much. The instrument may well be a bargain and sale for the first tract, and a contract0 to convey the premises in question That the terms of this contract, or the circumstances undei which it should be consummated, are left vague and uncer tain, is not more surprising than that the parties should adopt the instrument at all, in its present form. If the parties intended a mere bargain and sale of the whole, wi* again ask—if the parties- so intended—why did they nol manifest that intention by appropriate words, such as they had already used in relation to the first piece? It is impossible to say that they so intended, when they, apparently with deliberation, went out of their way to use language which the judge admits is entirely inappropriate to that.purpose. The fact that the judge cannot say what object the grantor had in view, is no argument to show that the grantor intended to do as it is insisted he did. We are here, not to ascertain what object other than a grant the party had in view, but simply to ascertain if a grant was intended; and if we find that it was not so intended, that is enough for our purpose—it is not our business to say what else he did intend.
    III., Having arrived at a conclusion satisfactory to.itself as to the intention of the parties, the court below proceeds to amend the deed .so as in its opinion to carry out that intention, by inserting the word “ shall” in lieu of the word “ may.” We are at a loss to see how the construction of the deed is helped by that change, or how the ambiguity would have been less patent if the deed had originally contained the word “shall” instead of the word “may.” The arguments above used, as to the change of phraseology, will apply equally to the language of the deed as amended by the court below. It appears to us that the court, in order to effectually carry out its theory, should have gone further and struck out all the words, between “also” and “an”; then the intention would be manifest, and the deed unambiguous. Such a liberty the court would hardly have taken. • The learned judge asserts that the deed is to be taken most strongly against the grantor. This, undoubtedly, is one rule of construction, but can apply only to the deed as actually made by the grantor. Where it is sought to give a deed an additional effect by reforming, a reverse rule of construction should be adopted.
    
      George Miller, for the respondents.
    I. The deed in question, if it conveyed any interest in the premises secondly therein described, conveyed the land itself with a limitation as to the use to which it should be appropriated, and not a mere easement or incorporeal interest authorizing a use of the land for certain purposes. ' The position that an easement only was intended to be conveyed is now taken for the first time; we never heard the suggestion before. We think it very clear tliat the operative words of the deed, whether they operate as a conveyance or an agreement to convey, take effect on the land itself and do not merely give a right to exercise certain privileges upon it. The land first described in the deed is conveyed absolutely in the strongest terms, yet with a qualification as to its use. It is only for the uses and purposes of the railroad; for any other purposes the company could not' use it. Then an additional width of seventy feet, which is called additional land before the end of the sentence, is conveyed, or agreed to be conveyed, .with more specific provisions as to the use it shall be put to by the company, and the use that shall be made of the buildings that the company may erect upon it; and then all the estate, right, title, interest, etc., of the grantors are conveyed in the fullest and most ample manner. Besides, we believe the right to permanently and exclusively occupy land with buildings is not a right which the law enumerates with easements or servitudes. (3 Kent. 434.) We imagine that if the grantor should enter against the will of the company upon any of their erections made upon the land he would be a trespasser. An absolute control of the premises by a railroad company, where they put any of their erections for the purpose of their business, would be indispensable. All the charters of such companies give them a right to take the land for their purposes, not a mere right to use the land as an easement.
    II. The only question in this cause is whether the deed from Dodd to the railroad company conveyed a present interest in the premises therein secondly described. The first question is, was it the intention of the parties to the deed that a j>resent interest should be conveyed by it? And secondly, is the language of the deed sufficient to effectuate that intention? 1
    1. The whole deed, and every word and phrase of it, indicates an intention to convey a present interest. The words “may be entitled” are in their meaning as effectual' to convey a present as a future interest, and in the connection in which they stand, they can mean only an immediate interest. The word “may” is in all cases as applicable to present as to future time. The deed on its face recognizes no future act to be performed by either of the parties, nor any future event to occur upon which a conveyance should be made. On the contrary the company wanted the land for immediate use, and they used it immediately. The engine house was built on it in 1842. The deed was given in December, 1841. Then the nature of the transaction shows clearly that any. future conveyance coul(¡l not have been within the meaning of the parties. The grantees were laying a railroad track and making a depot upon the land of the grantor, in a forest of miles in extent, and thereby increasing the value of his land more than five hundred per cent. He therefore gave them so much land as was judged necessary for their purposes, but, as is usual in such cases, provided against the use of it for other business.
    2. Are the words of the deed sufficient to effectuate the plain and obvious intention of the parties, that the grantees should take a present estate in the premises secondly described? All the formal parts of this conveyance are full and ample. The granting part of the deed is as.full as any one can require. We insist, in the first place, that it was the intention of the parties, and that it is the true meaning of the deed that the granting part should apply as fully to the premises secondly described, as to the premises first described. The words “also,” “in addition to” “which said sixty square rods,” “ the Long Island Railroad Company may be further entitled to an extra additional width of seventy feet,” &c., were used by the parties with the intention not to exclude the application of the granting part of the deed to this seventy feet, but really to say that the granting part did apply to' such seventy feet upon the terms which the deed then went on to explain, viz., that the land should be used by the grantees for a side track, depot, buildings, &c., but the buildings to be used for the purpose of the road only. If there could be any doubt as to this construction, the further description of the premises and the estate granted contained in the deed all the way to the habendum, must remove such doubt. Certainly all this part of the description applies as fully to the premises secondly as to the premises first described in the deed. 1 Also the habendum and the covenant of warranty clearly indicate that such must have been the mean
      ing of the parties. The words “also,” “in addition to,” “be further entitled,” “an extra additional width,” all indicate that the parties supposed that they were conveying the second. premises by the. same means by which the first was conveyed, and the words “be further entitled” show that the grantees were to acquire title to the second premises by force of the words by which they acquired title to the first. Assuming that the words used in the granting part of the deed do not apply to the premises secondly described, then the deed in respect to the second premises would read thus: "“In consideration of one dollar, duly paid,” etc., “the Long Island Railroad Company may be further entitled to an extra additional width of seventy feet,” etc. The above words are sufficient to transfer the title by way of bargain and sale! The words “bargain and sell ” are the appropriate words, but any words that are sufficient to raise a use will convey an estate by way of bargaiti and sale. The words “may be entitled to”‘are as effectual to convey a use as the words “bargain and sell.” An agreement by A. that, in consideration ot one dollar, B. may be entitled-, will pass from A. to B. the use of any real estate, or any article of personal property. By the common law it did not pass the land itself, because that could only be done by livery of seisin, but it gave B. a right to the use of the laüd, and then the statute transferred the possession, The words remise, release, and forevei quit claim, and the words “.release and assign,” were held by our supreme court sufficient to raise a use. In no other way could a quit-claim deed operate to transfer the title. The court says: “There are no precise technical words required to raise a use. If the words amount to a present contract of sale or bargain, a trust is instantly raised on which the statute operates.” (Jackson v. Fish, 10 Johnson’s Reports, 456; 4 Cruise’s Digest, 123.) Any words between two parties showing that for a consideration one shall give and the other shall take, make a sale or conveyanee. Courts are bound to effectuate the intention of the parties where that is clear, if it can be done without a violation of the law. This arises front the nature of things that all language must be conventional, and that the language of the party speaking must tie construed according to the understanding of the party addressed, if it was known to the speaker.- This is the true basis of honest intercourse between men, and it is the foundation of the rule that a deed shall be construed most strongly against the grantor. And it fully justifies the rule that courts will give a different, unusual, and even contrary meaning to words, to effectuate the intention of the parties. The learned judge in the court below has so clearly and fully illustrated and applied the law upon this point that we deem it unnecessary to add a word, and certainly there is nothing in the criticism of the opposite counsel that calls for an answer. He clearly misapprehends and misapplies the case from 2 Wendell, 433, which is directly to the point as cited by the judge. But with much deference to the learned judge, we think the word “may” has abundant force in its position in the deed, to convey the property, and that for such purpose it is almost, if not quite, as potential as the word “shall.” It declares the assent and intention of the grantors that the grantees shall take the title to the land, that is, all that is called for from the ■grantor. The grantees are the beneficial recipients, and no stronger word can be necessary for them who are volunteers in- taking the title. If the words were intended to restrain or coerce the will of the grantees, the Word “shall” would be more appropriate, and to effectuate the intention the court could properly give to “ may ” the meaning of the word “ shall.”
    HI. The occupation of the premises by the plaintiffs confirms our construction of the deed. They built an engine house in 1842, very shortly after the deed was given, used it there a year, built another .in 1844 which stood ten years, and they have very nearly during the whole time been in actual possession of some part of the premises by their tracks and buildings, besides using it as a deposit for cordwood, the premises not being used, being wild and uncultivated. In 1854 a storehouse was built, and in 1856 the defendants built their store without the knowledge of the plaintiffs. The wood was cut off by the grantor in the deed. It was the general custom .for the owner to take wood where he gave land to the railroad. The plaintiffs do not seek to take from the defendants their store, bul will suffer them to move it off, or permit it to remain foi the present for a trifling rent.
   Selden, J.

The facts proved on the trial, aside from the deeds and the possession by the defendants of a pari of the premises in dispute, with a claim of ownership to the whole, are wholly immaterial The case depends upon the construction of the deed from Edward Dódd and wif*. to the plaintiffs; and such construction must be determines from the words of the deed alone; the- extraneous circum stances which were given in evidence not tending in tb* least to aid in that construction. I entertain no doubt of the sufficiency of the deed to pass the title to both the' parcels described. In deeds of bargain and sale, designed to transfer the title to lands by the aid of the statute oí: uses, no particular form of words is necessary; any wordy which show the intention are sufficient. “Any words that will raise a use will amount to a bargain and sale.” (4 Kent’s Com. 491-496; Jackson v. Alexander, 3 John. 485, 495; Jackson v. Fish, 10 id. 456.) The words “ make over and confirm” (18 John. 60), “ release and assign” (id. 79), “limit and appoint” (Shove v. Pincke, 5 T. R. 124,) have been held sufficient. In the last mentioned case, Bullek J. says: “ The thing conveyed is a reversion; that is, the subject of a grant; and the-words ‘ limit and appoint’ operate as a grant.” It is hardly necessary to say that any words which would amount to a grant at common law, would be. sufficient in a bargain and sale under the statute of uses; and if that were not so, would be good as. a conveyance under our revised statutes, which have made every interest in lands the subject of grant. (1 E. S. 738, .739; 4 Kent’s Com. 491.) In Fisher v. Fields (10 John. 495), in the court of errors, the following instrument, sealed, and a pecuniary consideration being shown, was held sufficient to create a trust, viz: “This is to certify that the bearer hereof, J. B., is entitled to all the lands that I, B. G. am entitled to, either from the state or continent, for my services as a soldier.” In that case the bargainor had only an equitable interest, and could not therefore transfer a title, but the instrument was held sufficient to charge him (when he afterwards obtained the legal title)-, as a trustee of the lands for J. B. A trust now is what a use was before the statute óf uses, and words which are now sufficient to create a trust would have been sufficient to create á use before the statute, and-by aid of the statute are now sufficient to transfer the legal estate. The operative words in the case of Fisher v. Fields, were almost identical with those used in the deed under consideration. In the one case they are “is entitled to,” and in the other “Also, may be further entitled to.” The same words, however, in one ease might be held sufficient to operate as a conveyance, when, in another, they would be altogether insufficient on account of their relation to other parts of the instrument. The intention alone determines the interpretation of the deed, and to ascertain that intention the whole instrument is to be examined. Looking, for this purpose, at the whole of this deed, we find that by it the grantors declare that, in consideration of one dollar, they have bargained and sold to the railroad company a piece of their land four rods wide and two hundred and fifty feet long, comprising an area of sixty square rods, “ for the uses and purposes of'the road procer.” Also, that, in addition to the sixty square rods, the company may be further entitled to an extra width of seventy feet on the south of the road, “ for the uses and purposes of a side track, engine house, depot,” &c.-, “ provided such buildings may be used for purposes of said road only; and which additional land contains an area of sixty-four rods.” To those granting and descriptive words, there is added the habendum clause, “.to have and to hold all and singular the above mentioned and described premises, together with the appurtenances, unto the said parties of the second part, their successors and assigns, forever,” and the only one of the grantors capable of entering into a covenant, adds that the quiet and peaceable possession of the said premises, by the party of the second part, he “will warrant and forever defend.” The entire deed being considered, the intention to convey the last described piece as effectually as the other, appears to me very plain, notwithstanding the difference in the language used in reference to the different pieces. I regard the words directly applied to the piece last described, viz.that the company “may be entitled to” seventy feet in width for a side track, as sufficiently expressing an .intention to give a present interest to the grantee, to operate as a conveyance) the consideration otherwise appearing. Those words were designed to have some effect, and if they do not operate as a conveyance, no effect whatever can be given to them. The effect of the deed, as applied to the piece of land last described, does not, however, depend upon the language which I have last quoted. By its,true interpretation the technical words of conveyance, “grant, bargain, sell,” &c., apply as well to the last described piece of land as to the first. No one would question that the words, “for and in consideration of one dollar,” apply to both pieces, and just as clearly the granting words apply to both. The substance of the deed—its plain meaning— is this: In consideration of one dollar, we have granted, bargained and sold to the railroad company sixty-four square rods of land for their road proper; also seventy rods in addition, which they may be entitled to for a side •track, éngine house, &c. This interpretation of the deed is strongly confirmed by the habendum clause; and although that clause can never be resorted to for the purpose of enlarging the estate granted, there is no reason why it may not be considered in determining the question whether the prior words of the deed were or were not intended to operate as a grant.

It is not necessary, in order to maintain the plaintiffs’ title, to resort to the covenants of the deed; but if there were in the instrument no words which could be held to operate as a direct conveyance, I entertain no doubt that the covenant for quiet enjoyment, entered, into by the ancestor of the defendants’ grantor, would be equally as effectivé as a direct conveyance from such ancestor would have been to bar the claim set up by the defendant. Such ancestor would not, himself, have been allowed to assert a claim to the property in opposition to his covenant, nor can any one claiming under him be allowed to do so.

In the case of Goodtitle v. Bailey (Cowper, 597), which was an action of ejectment, the lessor of the plaintiff had executed a release of the premises claimed, with a covenant for quiet enjoyment, and further assurance. There was a doubt as to the sufficiency of the words of the release to operate as a conveyance. Lord Mansfield, after stating the' circumstances which created the doubt, says: “One> thing, however, is decisive. This is a fictitious action to recover the possession. In such an action, if a man has made a solemn deed covenanting that another shall enjoy the premises, and likewise for further assurance, it shall never lie in his mouth to dispute the title of the party to whom he has so undertaken; no more than it shall be permitted to a mortgagor to dispute the title of his mortgagee. No man shall be allowed to dispute his own solemn deed.” The court concurred in this opinion, and on that ground sustained the non-suit of the plaintiff, which had been granted at the trial.

For these reasons I think the deed was effectual as a conveyance of the title to the premises in controversy, for the purposes expressed therein; but if a doubt exists in regard" to this, the covenant for quiet enjoyment of the property by the plaintiffs estops the covenantor, and those claiming under him, from interfering with such enjoyment. (Eawle on Cov. 322.)

The judgment of the supreme court should be affirmed, and final judgment in favor of the plaintiffs entered in accordance with the stipulation of the defendants.

Hogeboom, J.

The sole question presented in this case is whether the deed from Edward Dodd, and wife, to the plaintiffs, of the 28th of December, 1841, does, by its terms, convey such an interest in the premises secondly therein described as will justify an action of ejectment. I am of opinion that it does, for the following reasons:

1. It is, equally with the first parcel, contained in the granting part of the deed, and the habendum clause is “to have and to hold all and singular the above mentioned and described premises (which embrace both parcels), with the appurtenances, unto the said parties of the second part, their heirs and assigns, forever.” And it is also covered by the covenant for quiet enjoyment.

2. The consideration applies • to the whole deed, and there is nothing to show that it was intended as a mere contract for a deed,’ as it makes no provision for a future deed in any contingency, or at any future time. It must have been intended for one purpose or the other—either as a conveyance of a present interest in the land or as a contract to convey a future interest.

3. The difference of phraseology in regard to the first and second parcels is not conclusive, because the question must after all be determined from the whole scope and tenor of the instrument. Moreover there is, in my opin ion, a reason for the difference of expression in this, that the conveyance of the first- parcel was designed to be direct, immediate and absolute, while that of the second was designed to depend upon its being wanted or used for the purposes named, to wit: for a side track, engine house, depot, or other necessary buildings and appendages to the road. This was consistent with the retention of an interest in the grantors in the premises so conveyed until the grantees should require it for the uses specified; and this was, I think, the intention of the parties, as it was so subsequently used and appropriated by the latter, the abso lute right vested from that period.

4. The words in the deed, “may be further entitled,” should, therefore, be construed as is admissible in the inter pretation of instruments of this description, as synonymous with “shall be further entitled,” or “are further entitled,” in order to effectuate the manifest intention of the parties. In the same sentence similar words are twice obviously used in a similar sense. In declaring the purposes to which this second parcel, and the buildings to be erected thereon, shall be applied, the language is “for the use and purposes of a side track, engine house, depot, or such buildings and appendages to said road as may be (that is, are or shall be) considered necessary, provided such buildings may be (that is, are or shall be) used for purposes of said road only.”

The words “is entitled,” or “are entitled,” are frequently used in legal documents to import the conveyance or transfer of a present interest, and not a mere right to the conveyance or transfer of a future interest. Stock scrips or certificates are a familiar illustration of this proposition.

These considerations are conclusive to my mind as to the intention of the parties and the effect of the instrument. The order of the supreme court should he affirmed, and judgment absolute should be rendered against the defendants in accordance with their stipulation in such event.

All the judges concurring, judgment affirmed.  