
    Isham against Morgan and others.
    ' It is an established rule of law, against which the intention of the grantor can never be available, that a conveyance of land, by necessary legal consequence, conveys the buildings thereon.
    Where two instruments are executed at the same time, between the same parties, relative to the same subject matter, and to effectuate one object, they are tobe taken in connexion, as forming parts of the same agreement; but where there are two deeds, given to different persons, for different eon. siderations, not executed at the same time, nor relative to the same subject matter, nor to effectuate the same object, nor in pursuance of any antecedent contract made with the grantees jointly, they will be considered, and take effect, as separate instruments.
    Therefore, where A., the owner in fee, conveyed to his daughter B., in con. sideration of natural affection, a lot of land, with one half of the buildings thereon, and, on the same day, executed Ho C., in consideration of 300Z. a deed of one half of the same buildings, described as being on the lot of land, which A. had, that day, given a deed of to his daughter B.; it was held, that the deed to B. conveyed all M.’s interest in such buildings, and : consequently, C. took nothing by the deed to him.
    This was a writ of partition, demanding that the defendants set out to the plaintiff, the one undivided half part of a certain dwelling-house, barn and other buildings, standing on a lot of land in Colchester, particularly described. The defendants pleaded, that they did not own and possess the premises, as tenants in common with the plaintiff.
    The cause was tried at Norwich, March term, 1832, before Mosmer, Ch. J.
    On the 28th of September, 1793, Dudley Wright, being the owner of the land described in the declaration, executed and delivered two deeds ; one to his daughter Lydia Watrous, in consideration of good will and affection, conveying to her said land, together with one half of the buildings thereon standing; the other to John R. Watrous, in consideration of 300Z., lawful money, purporting to convey to him one half of the dwelling-house, and also one half of the barn and other buildings, described as standing near said house, on the lot of land which the grantor had, that day, given a deed of to his daughter Lydia Watrous. No evidence was exhibited to* shew, which of these deeds was first delivered, except what appears on the face of them. The plaintiff claimed title under John R. Watrous, by virtue of the deed to him. The de-ffendants are the heirs of Lydia Watrous, and have succeeded to her rights. On these facts, the Chief Justice charged the jury, that the deed to Lydia Watrous. being delivered before the deed to John R. Watrous, (as appears from his deed) she took the land, and the buildings thereon ; and that Dudley Wright, the grantor, had nothing left to convey, and conveyed nothing, to John R. Watrous. 
      
    
    
      The jury returned a verdict for the defendants; and the plaintiff moved for a new trial, for a mis-direction.
    
      Goddard and Isham, in support of the motion, contended,:
    that the plaintiff had title, as tenant in common with the defendants, of the buildings whereof a partition was sought. In the first place, the deed of Dudley Wright to Lydia Watrous virtually excepts one half of the buildings. The whole description of the premises conveyed, must be taken in connex-ion ; and being thus taken, it is perfectly manifest, that the grantor intended to give to his daughter the land and one hall of the buildings, and to reserve to himself, for some other purpose, the other half. This intent, the court will give effect to, unless it is repugnant to some stubborn rule of law. But what rule of law inhibits a conveyance, by the absolute owner of land and buildings, of all the land, and a part of the buildings ? Admitting, that if he had conveyed the land, and had said nothing more, the buildings thereon would have passed ; may he not, if he chooses, part with his whole interest in the land, and retain a moiety of his interest in the buildings 1 And if he expresses this intention in the instrument of conveyance, is not this enough ? Jackson d. Troup & al. v. Blodget, 16 Johns. Rep. 172. 179.
    This is, on the face of it, a conveyance of all the grantor's interest in the property, except half the buildings. Com. Dig. tit. Fait. É. 5.
    Secondly, both deeds are to be taken in connexion, as constituting but one transaction; and thus viewed, there cannot be a doubt as to the intention of the parties, or the true construction of the instruments used to give effect to that intention. The grantor gives to his daughter, the land, and half the buildings, her husband, at the same time, paying 300/. for the other half of the buildings. Crop v. Norton, 2 Aik. 76. Mountague & al. v. Tidcombe & al. 2 Tern. 518. Jackson <L Trowbridge &. ux. v. Dunsbagh & al. 1 Johns. Ca. 91. 9.7, 15 Johns. Rep. 463. 16 Johns. Rep. 172,
    
      
      Peters and Strong, contra, insisted, that John R. Watrous
    
    acquired no interest whatever, by the deed from Wright; deed to Lydia Watrous having conveyed the land, 'and, of course, the buildings, to her. Co. Litt. 4. a. 1 Cruise’s Pig. 58. tit. 1, s. 1. This position is incontrovertible, unless a part of the premises was excepted from the grant. Bttf.jhis has not beerj^done. First, it was not excepted in the instrument byWhich the conveyance was made. That instrument contains no excepting clause. It merely contains superfluous words in the description of the premises. Secondly, the exception in question cannot be made out, by recurrence to the deed to 'John R. Watrous. Being made after the deed to Lydia, it cannot be regarded as part of the same transaction. It would seem from the face of the deed, that the parties were careful to avoid any question on this subject, by using words equivalent to a declaration that this was a subsequent and distinct transaction. Another deed, to another person, at a different time, though on the same day, is not of course a part of this deed.
    
      
       The case embraced other points, which were decided, at the trial, and stated in the motion for a new trial, and were afterwards discussed, byr. counsel, before this court; but the ground on which the decision was ult'i/ mately placed, has rendered it unnecessary to state them,
    
   Hosmsr, Ch. J.

Whether the charge was correct, is the question now to be determined.

The case is briefly this. Dudley Wright conveys to his daughter a lot of land, with a dwelling-house thereon, by a deed well executed and delivered, and afterwards, on the same day, delivers a deed to John R. Watrous, purporting to convey to him the one half of the said house. What interest did John R. Watrous take under this deed 1 The obvious answer is, that he took nothing. By the delivery of the deed to Lydia, the grantor conveyed to her, not only the land, but the building upon the land. Cujus est solum, ejus est usque ad tcelum. From the moment in which the above deed was delivered, Dudley Wright had no interest in the land, or in the building thereupon. He had parted with the property; and having nothing to convey, could convey nothing. It is unnecessary to cite cases on so plain a subject; and I will content myself merely with an allusion to Lord Coke, on this point. 1 Inst. 4. a. The word land, he says, in its legal signification, mprehends any ground, soil, or earth whatever ; and it also an indefinite extent upwards, as well as downwards. Jt erefore includes all castle^, houses, and othfer buildings standing thereon; and downwards, whatever is in a direct linbetween the surface, and the centre of the earth. 2 Bin. Com. 17, 18. 1 Cruise’s Digest, 58. §3

If, then, a deed takes effect from its delivery, and the conveyance of land likewise conveys the buildings thereon, both of which are incontrovertible legal truths, the deed to John 11 Watrous had no possible effect; as the grantor had before divested himself of the property, which he endeavoured, by that instrument, to convey,

It has been insisted, that Dudley Wright, as appears on the face of his deed to his daughter Lydia, intended to convey to her the one half of the dwelling-house only. Admit this to bo the fact, it can make no difference in the case. He had conveyed to her the land; and this, by necessary legal consc-quence, conveys the house upon it. The intention of a contracting party, arising perhaps from ignorance, can never be available against an established rule of law, and the legal op eration of his deed. Nor can the court, by implication, reserve to him a right over property, which he clearly has transferred to another.

It has strongly been argued for the plaintiff that the deed given to Lydia Watrous and John R. Watrous, were evidences of one united transaction, and to be construed as if they formed one instrument.

For this position I discern neither principle nor case. The established rule is this : Where two instruments are executed at the same time, between the same parties, relative to the . same subject matter, to effectuate one object, they are to bo taken in connection as forming parts of the same agreement Mountague & al. v. Tidcombe & al. 2 Vernon, 518. Treatise. of Equity, 49. Taylor d. Atkyns v. Horde & al. 1 Burr, 60. Crop v. Norton, 2 Atk. 74. 76. Jackson d. Trowbridge & ux. v. Dunsbaugh, 1 Johns. Ca. 91. Stow v. Tifft, 15 Johns, Rep. 458. The principle is well illustrated, by Ch. J. Parsons, in Holbrook v. Finney, 4 Mass. Rep. 569. by the case of a deed given by the vendor of an estate, who takes back, at the same time, a mortgage to secure the purchase money; or by the giving of an absolute deed, and, at the same time, receiving a defeasance. These constitute one contract through the medium of distinct instruments. All the above cited ca-£ ses sustain the principle, as advanced and illustrated.

That tb this case the principle has no application, is indispu-ably clear. Here are two deeds, the one of them given to. Lydia Watrous, the other to John R. Watrous; instruments at executed at the same time, nor between the same parties, fior relative to one united subject matter, nor in effectuation of one object, nor in pursuance of any antecedent contract, made with the grantees jointly. Not a single constituent of the principle, applies to this transaction ; but the contracts were, in every sense, separate and disjoined.

Had it been proved, that Dudley Wright, intending to make . settlement of his estate, on the aforesaid grantees, to effectuate this object, executed and delivered the two deeds simultaneously, it would have presented a different case. But nothing of this kind appears. So far from this, one of the instruments was for a valuable consideration, and on the sale of property ; the other, for love and affection; so that the considerations are disjoined as well, as the whole transaction.

It is unnecessary to express an opinion, on the other points made in the case ; as the one discussed shows, conclusively, that the determination was correct.

Peters and Daggett, Js. were of the same opinion.

Williams, J. was inclined to think, that the two deeds should be taken together; and that so considered, Lydia Watrous took the land, with only half the grantor’s interest in the buildings, and John R. Watrous took the other half of the buildings.

Bissell, J. not having been present when the case was ar-jued, gave no opinion.

New trial not to be granted.  