
    The City of Cincinnati v. The Lessee of the Heirs of Samuel, and Abigail Newell.
    Where, in a deed of conveyance, the premises are described as follows: “ All that lot or parcel of ground, in the county and state aforesaid, being part of fractional section No. 12, in the fourth township and first fractional range, beginning at the south side of a two-pole street, and corner of lots Nos. 10 and 11; thence south 40 deg. east 82J- feet to a stake; thence south 40 deg. west 29 74-100 poles to a stake; thence north 45 deg. west 82J feet to the south side of a two-pole street; thence north 45 deg. east 29 74-100 poles to the beginning, excepting and reserving a 33-feet street, in the north or upper side of the southern line of said lot, for the use of the public, in lieu of a two-pole street, north of lots 9 and 10, formerly owned by Stephen Wheeler and John S. Gano, agreeably to the plat of land as sold by Ethan Stone, containing three roods and twenty-eight poles:” Held—
    1. The title in fee simple to the whole tract, so far as the same existed in the-grantor, passed to the grantee, subject only to a right of way for a street over the thirty-three feet.
    2. Where the wife of the grantor is the owner, in her own right, of one-fifth of tie premises covered by the conveyance, and she joins her husband only in the testatum clause, and in the execution of the deed, the husband’s title alone is passed to the grantee.
    In error to the district court of Hamilton county.
    The facts are these: Stephen Wheeler died seized of a large tract of land in the city of Cincinnati, of which the premises in controversy are part, leaving six children and heirs at law, four of whom, on the 13th of December, 1814, conveyed their undivided *interests in the estate to Samuel Newell, husband of Abigail Newell, who was a fifth heir. The other one-sixth originally descended to Polly, wife of Hanson L. Reeder, and at her decease was inherited by her minor children, Stephen W., Abigail, Eden B., and Eliza J. Reeder.
    In 1816, Samuel Newell, claiming four-sixths under the conveyances above described, and one-sixth in right of his wife, filed a petition for partition in the Hamilton common pleas, against the heirs of Polly Reeder, and thereupon such proceedings were had that the premises in controversy, with other property (among the rest the land directly south of and adjoining the land in controversy), were set apart to Samuel Newell, as and for the five-sixths of said estate owned by himself and his wife. To these proceedings Mrs. Newell was not a party. In the year 1815, and previous to the partition, a deed, under which the controversy in this case has -.arisen, was executed by Samuel Newell and his wife to Jacob Wheeler. Mrs. Newell joins in this deed only in the testatum clause (wherein she relinquishes dower) and in the execution; Samuel Newell alone grants and covenants. The covenants are of •seizin, right to convey, and general warranty. The consideration named is the sum of three hundred dollars. The property conveyed is described in the following words: “All that lot or parcel of ground in the county and state aforesaid, being part of fractional section No. 12, in the fourth township and first fractional range, beginning .-at the south side of a two-pole street, and corner of lots Nos. 10 and 11, thence south 40 deg. east, 82J feet, to a stake; thence south 40 deg. west, 29poles, to a stake; thence north 45 deg. west, 821-feet, to the south side of a two-pole street; thence north 45 deg. east, 29-^¡- poles, to the beginning; excepting and reserving a 33-feet street in the north or upper side of the southern line of said lot, for ithe use of the public, in lieu of a two-pole street north of lots 9 and 10, formerly owned by Stephen Wheeler and John S. Gano, agreeably to the plat of land as sold by Ethan Stone, containing three roods and twenty-eight poles.” The plaintiff in error claims under this deed, by virtue of intermediate conveyances fromjacob Wheeler to Samuel W. Davies, from Samuel *W. Davies to the Cincinnati Water Company, and from the Cincinnati Water Company to the city of Cincinnati, and has been in possession of the premises in controversy since 1839, using them for a reservoir of water, in connection with the water-works of the city.
    The lessors of the defendant in error claim in right of their mother, Abigail Newell, an undivided one-fifth of the whole lot described in the deed, and in right of their father, Samuel Newell, four-fifths of the reserved “thirty-three feet.” Or in other words, in right of their mother one-fifth of the whole lot, less the reservation, and in right of their father and mother, the whole of the reservation.
    The only other fact necessary to a proper understanding of the case is, that the two-pole street north of lots 10 and 11, in lieu of which the street described in the reservation in the deed to Jacob Wheeler appears to have been intended, has never been abandoned, but is still used as a street, and known as High street, in the city •of Cincinnati, and as such was widened by ordinance of the city council, passed August 18, 1841, by taking a strip off the northern part of the premises in dispute.
    The action was originally commenced March 13. 1851, in the (former) Superior Court of Cincinnati, where a judgment was rendered in favor of the lessors of the defendant in error for one-fifth of the whole tract conveyed to Jacob Wheeler. From this judgment the city appealed, and a judgment was rendered in the district court for the whole of the reserved street, being thirty-three feet in width, and one-sixth of the residue, being forty-nine and one-half feet in width. To reverse this judgment the present petition in •error is brought.
    
      Mills & Soadly, and Sart, for plaintiff in error.
    
      Bryant & Prolasco, and Purlin Ward, for defendant in error.
   Brinkerhoff, J.

The only question in this case, which, in the view we take of it, it is necessary for us to pass upon, is this: *What is the legal effect of the concluding portion of the description of the premises in the deed of Samuel Newell and wife to-Jacob Wheeler, under which the city of Cincinnati, plaintiff in error, claims title? These are words of exception and reservation following after a general description which embraces the part excepted and reserved, and followed by a designation of quantity, which also embraces the part excepted and reserved.

The words of exception and reservation are these:

“ Excepting and reserving a thirty-three feet street, in the north. or upper side of the southern line of said lot, for the use of the public, in lieu of a two-pole street, north of lots 9 and 10, formerly owned by Stephen Whéeler and John S. Gano, agreeably to-the plat of land as sold by Ethan Stone, containing three rods’and twenty-eight polds.”

Counsel have argued elaborately on the legal effect of words of' exception and words of reservation, respectively, and the distinctive-effect of each. But with these questions, we think we have really nothing to do in the present case. If Newell and wife, in their deed, had excepted and reserved a thirty-three feet strip of land, or-a thirty-three feet strip of ground, or simply thirty-three feet from off the premises described, or had used any other terms of like import, we have no doubt that the words “ excepting and reserving ” would have been amply sufficient to retain in themselves' whatever-title they had to the part thus reserved. But this, we think, they failed to do. They excepted and reserved no land, no ground, and-nothing legally equivalent to their former estate in any portion of the premises comprehended in the preceding general description. Whatever they did not except and reserve out of what was included in their general description, they conveyed. Now, looking at the distinct and natural import of the words they have employed, what did they not convey? — or, in other words, what did they except and reserve ? The answer is, in their own words — “ a thirty-three feet street,” “for the use of the public,” and “in lieu of” a certain other street then existing, and which has never been vacated, but has since been widened and improved. For themselves, in j)articular, these grantors excepted and reserved nothing; but *“for the use of the public ” they reserved a street in a place where no street then was, or has since been, and in lieu of another street, then and still existing. This, it seems clear to us, was but the-exception in favor of the public — should the public ever desire it — of an easement in, or right of way over, the thirty-three feet mentioned in the reserving clause, and to be exercised on the vacating of the two-pole street. Subject alone to this easement, all else was conveyed ; and the title, in fee simple, to the whole premises, as far as Samuel Newell could convey it, passed to his grantee; and, by intermediate conveyances, vested in the city of Cincinnati. And as no one has ever demanded this thirty-three feet of ground for a street; as the public, for whose use the exception was made, has never taken measures to establish a street there; and as the “ two-pole street,” in lieu of which the right to the new street was reserved, was never vacated or abandoned, the defendant in error has not, and the plaintiff in error has, a right to the possession of that part of the whole premises of which Samuel Newell was the owner.

We are strengthened in this conclusion by the facts that while the general description is by courses and distances — affording some presumption at least of a recent survey — both that general descrip- and the quantity of land designated, include the thirty-three feet in question, and by the consideration that if the grantor had intended to except and reserve the land, it would have been so easy for him to say so in terms at once brief and explicit; and we are further confirmed in it by the rule that “ a deed shall be construed most strongly against the grantors.”

Samuel Newell, however, had title to but four-fifths of the premises described in the deed, his wife being the owner, in her own right, of the remaining fifth; and as she joined only in the testatum clause, and in the execution of the deed, the title to her fifth did not pass by the deed.

The judgment of the district court will therefore be reversed, and the ease remanded for further proceedings.

Bartley, C. J., and Swan,. Scott, and Bowen, JJ., concurred.  