
    John E. Blackman, App’lt, v. Elsworth L. Striker et al., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed June 5, 1894.)
    
    1. Deed—Exception or reservation.
    An exception or reservation in a deed is to be taken most favorably to the grantee, and he should have the benefit of any uncertainty or ambiguity in the language.
    8. Same—Extent op grant.
    A deed must be held to convey all the interests in the lands which the grantor had, unless the intent to pass a less estate or interest appears by express terms or is necessarily implied in the terms of the grant.
    
      Appeal from judgment of the general term of the supreme court in the first judicial department, entered upon an order made December 28, 1892, which denied a motion by plaintiff for a new trial, overruled his exceptions and directed judgment in favor of defendants upon the verdict directed by the court. The nature of the action and the facts, so far as material, are stated in the opinion.
    
      George Hoadly, for app’lt; George Bliss, for resp’ts.
    
      
      Affirming, 50 St. Rep. 432.
    
   O’Brien, J.

This was an action to recover real property. The trial court directed a verdict for the defendants and the general term has affirmed the judgment entered on the verdict. The land which is the subject of the controversy is particularly described in the complaint, and is situated at the corner of Ninth avenue and Fiftieth street, in the city of New York. John Hopper the elder, who died in the year 1778, is the common source of title. He was the owner of a farm, in what is termed in his will and in subsequent conveyances, the Out Ward of the city of New York, which he devised to his five children and the descendants of a deceased child. The will directed that after his decease the farm should be divided into six equal portions by competent and disinterested persons, after having made,,a survey and chart of the farm and the several divisions. The parcels thus surveyed and mapped were to be so arranged, with reference to value, as to make all as nearly equal as possible, and then the devisees were to determine by lot which parcel should belong to each in severalty. This was to be done by numbering the six parcels on the map and placing each number upon a ticket, and, in the language of the will, each devisee was to “ draw one ticket, and the number thereon should be the number of the lot he or she shall inherit by the devise.’6 The drawing was to be done under the direction of the executors of the will. The children of the deceased child were entitled to draw and hold as tenants in common one of the lots so numbered. On the 4th of February, 1782, the devisees, including the guardian of the minor grandchildren, entered into an agreement in writing under seal, whereby it was agreed that the farm should be divided into lots on the east and west side of the Bloomingdale road, which ran through the property, that is to say, six parcels on each side of the .road, and it then provided that a parcel on the east and one on the west side should be matched and represented by a number on the map, and consequently by a single ticket at the drawing. The parcel which was designated on the map as lot No. 2 contained the family burying ground, a small plot surrounded by a fence, the area of which, for the purpose of this case, may be stated as about forty feet in width and eighty feet in length. This burial plot is supposed to be the identical land in controversy, and parcel No. 2, upon which it was located, was drawn by and allotted to Matthew Hopper, one of the sons. After the division and allotment of the six parcels between the devisees partition deeds were executed and delivered by all the parties in interest to four of the devisees, in wrhich the parcel so conveyed, is described in each case, but the record dors not show that any deed was ever executed to Matthew Hopper or to the minor grandchildren. Whether this results from the fact that no such deed was ever in fact executed, or that the conveyances, if made, have been lost without record does not appear. The absence of any proof of the execution and delivery of such deeds is not, I think, material on the question of title. The heirs of John Hopper the elder took title in severalty to their respective allotments of his estate by force of the devise to each contained in the will, the making of the map or chart directed by the testator, the execution of the agreement for the partition or division directed by the will, and the result of the drawing whereby each of the six shares were specifically described and located upon the farm. The evidence tended to prove, if it did not actually establish the fact, that the title and possession of that portion of the farm upon which the burying ground was located passed to Matthew under his father’s will. On the 17th of February, 1782, Matthew Hopper and wife conveyed by deed, with full covenants, to his brother John Hopper the younger, the parcel which had been assigned to him, it being described in this deed by metes and bounds, and by reference to the partition map or chart, where it was designated as lot No. 2. This deed, however, contained the following clause, which is the foundation of this action. After describing the land and enumerating all appurtenances, actual or reputed, this language is used : “Saving, excepting and reserving unto the heirs of the said John Hopper of the Out Ward, deceased, and to their and each of their heirs out of this present demise, all that certain burying ground now in fence consisting of forty-eight feet square parcel of the said lot of ground and commonly called the family burying ground, with free ingress, egress and re-gress into, out of and from the same to bury the dead, &c., forever.”

The plaintiff claims that under this clause the fee in the burying ground remained in Matthew Hopper and descended to his heirs, wlfo have conveyed to the plaintiff, while the defendant claims that the fee passed to John Hopper the younger, by the deed, subject to an easement for burial purposes, and to the defendant, one of his descendants. John Hopper the younger, grantee in this deed, died in the year 1819, having disposed of all his property by will. This parcel remained intact down to the year 1885, though no burials were made in the plot subsequent to "the year 1840. The defendant is one of the descendants of John Hopper the younger, and in an action of partition brought in 1885, a parcel of land, which included the burial plot, was assigned and allotted to him by the report of the commissioners and the judgment in the action. Immediately after this partition the defendant took possession of the land in question, removed the remains of the dead buried there, and the fence, and proceeded to erect an expensive building on the ground. The will of Matthew Hopper was admitted to probate September 25, 1784. There is nothing in it to indicate that he supposed he had, at the tiifie of executing the will, which was the same year in which it was admitted to probate, any interest in the land in question. He made no reference to it either by specific devise or general clause, and if he had any interest after the deed to his brother, he died intestate as to such interest. In the year 1889 his heirs conveyed to the plaintiff all the right, title and interest in and to all lands which John Hopper the elder died seized or possessed of in 1778, or which he devised by his will. The vital point in the plaintiff’s case is involved in the construction which should be given to the clause in the deed from Matthew to John Hopper, since he cannot succeed in the action unless it be held that the fee in the burial lot remained in the grantor and did not pass to the grantee. The learned counsel for the plaintiff contends that by the language of the deed the burial lot was expressly excepted from the operation of the grant and did not pass. It must be admitted that if the solution of this question depended entirely upon the language of the clause quoted, it would be very difficult to answer his argument. A conveyance of land, like all other instruments, should be so construed as to effectuate the intention of the parties to be ascertained from the language and all the surrounding circumstances. Thayer v. Finton, 108 N. Y. 394; 13 St. Rep. 778; Beach v. Crain, 2 N. Y. 86-93. An exception or reservation in a deed is to be taken most favorably to the grantee, and if there is uncertainty or ambiguity in the language, he should have the benefit of the doubt or the ambiguity. They should be taken most strongly and construed most strictly against the grantor whose words they are and against him who stands in his ¡dace, and if an advantage can be gained from an uncertainty or ambiguity in the words, the grantee or person standing in his place is entitled to the benefit of it. Grafton v. Moir, 130 N. Y. 470 ; 42 St. Rep. 373; Jackson v. Klock, 3 John. 375; Provost v. Calder, 2 Wend. 523; Jackson v. Butler, 8 John. 394 ; Ives v. Van Auken, 34 Barb. 566 ; Borst v. Empie, 5 N. Y. 39, 40; Duryea v. The Mayor, etc., 62 id. 592; 4 Kent’s Com. 468; Craig v. Wells, 11 N. Y. 315.

The primary rule of construction applicable to a clause in a deed in the form of an exception or reservation is to gather the intention of the parties from the words, by reading not simply a single clause, but the entire context, and where the meaning is doubtful, by considering such surrounding circumstances as they are presumed to have considered. Clark v. Devoe, 124 N. Y. 120; 35 St. Rep. 206. The deed mnst be held to convey all the interest iii the lands which the grantor had unless the intent to pass a less estate or interest appears by express terms or be necessarily implied in the terms of the grant. 1 R. S. 748, § 1. The grantor in framing the clause under consideration used the words “ excepting and reserving ” evidently without regard to their technical legal significance. Whatever,his intention was these words could not well be used together, since they express wholly different if not antagonistic ideas. Their meaning was thus tersely stated in this court by Judge Selden:

“ A reservation is always of something taken back out of that which is already granted, while an exception is of some part of the estate not granted at all. * * * A reservation is, never of any part of the estate itself, but of something issuing out of it, as, for instance, rent, or some right to be exercised in relation to the estate, as to cut timber. An exception, on the other band, must be a part of the thing granted or described as granted, and can be of nothing else.” Craig v. Wells, 11 N. Y. 315.

The exception or reservation was not in favor of the grantor himself, but in favor of the heirs of" his father. The language is “ unto the heirs of the said John Hopper of the Out Ward, deeeased, and to theirs and each of their heirs,” etc. The general rule is that a reservation or exception for the benefit of a stranger or a person not a party to the deed is void. Bridger v. Pierson, 45 N. Y. 603; Walrath v. Redfield, 18 N. Y. 457; Hornbeck v. Westbrook, 9 John. 73. The grantor, however, was one of the children and heirs of John Hopper, and it was competent for him to Reserve an easement for burial purposes for himself and the other heirs. The purpose of the right retained, whatever it was, is expressed in the last words of the clause, “ to bury the dead, etc., forever.” The real practical question is whether Matthew, by the use of these words, intended to retain in himself any beneficial interest in the land, or was it the intention of the grantor to convey all the estate that he had. The grant was for a valuable consideration, expressed in the deed to be £550 sterling, and the inquiry may be extended to John Hopper the younger, the grantee, whether he intended in making the purchase to acquire anything less than the whole estate which his grantor had. The agreement between the heirs which antedated the partition and the deed in question contains a provision which reflects much light upon these questions. After describing each of the shares to be represented by a number on the map or chart, it proceeds as follows: “ Whereas, on the lot number two there is erected a burial ground, and now inclosed with a good fence that the same, forever hereafter remain, continue and be for the family burying ground, and that whoever shall draw said lot of ground, and should jiereafter sell that, the said burying ground shall be reserved in the deed to the purchaser for the above-mentioned laudable purpose of burying, with full liberty to pass and repass as occasion shall require.”

The purpose of" this provision is plain. The heirs'intended that parcel number two should pass in fee to whoever drew it in the allotment, impressed with an easement for burial purposes. Matthew took it subject only to this easement which lie was bound by the-agreement to preserve in case he sold the share allotted to him. Matthew and John, grantor and grantee in the deed under consideration, were parties to this agreement. They understood its scope and purpose, and it is reasonable and just to presume that neither intended anything more by the clause in the deed than to carry out what had been provided for in the prior agreement There is no reason to believe that the parties to the deed intended that the grantor should retain any beneficial interest in the soil of the burying ground plot. Matthew was bound to reserve the right of burial for the heirs when he. sold the parcel. He was not bound to retain anything more; and the reasonable construction to be placed upon the grant is that they were-employed to limit the estate in the same way as it was held by the grantor. He intended to convey all he had and the grantee intended to acquire no less. This intention was not expressed in clear or accurate language, but as it is apparent from the nature of the transaction and from the circumstances, words and phrases used without a clear perception of their true meaning, must yield to what appears to be the intention. If we look at the conduct of the parties after the execution of the deed this view is confirmed. More than a century has passed since the conveyance and it does not appear that Matthew or any of his descendants made claim to any beneficial interest in the property, while John Hopper, the grantee, and his descendants evidently supposed that they owned the fee, only to an easement for the burial of the dead. In a case like this, where the defendant in possession has made valuable and expensive improvements upon the property on the faith of a title more than a hundred years old, the plaintiff is bound to make out a clear case. He cannot rest upon the words of the dead alone. A court must be fairly convinced from the language, read in the light of all the surrounding circumstances, that Matthew Hopper intended to retain in himself the fee of the burying ground, and that the beneficial interest so retained has vested in the plaintiff. A careful consideration of the whole case has not enabled us to reach that conclusion, but, on the contrary, after considering all that has been so forcibly urged by the learned counsel for the plaintiff in support of his view, and without invoking any arguments against the plaintiff’s claim except such as seem to be founded in reason, 'justice and law, we think he has failed to show any legal title to the property. It is unnecessary to examine the other questions arising upon the record and discussed by counsel, since a decision of them either way would not affect the result.

All concur.

Judgment affirmed.  