
    Craig and others against Wells.
    To authorize several instruments executed at the same time to be construed together as constituting one contract or conveyance, they should be between the same parties. Per Selden, J.
    Conditions in grants are not favored by the law,, and. hence must be clearly expressed.
    No particular words are requisite to create a condition, but they must clearly import, that the vesting or continuance of the estate is to depend upon the supposed contingency.
    A reservation is never of a part of the thing granted, but of something issuing or created out of it
    An exception must be of a portion of that which is included by the general desbription in the grant.
    A prohibition of the use .of property granted inconsistent with the title conveyed, is void.
    A valid restriction of the use of property conveyed may be imposed by a condition upon covenant of the grantee. Per Selden, J.
    M., being the owner of premises situate on both sides of the Walkill, with mills situate thereon propelled by its waters, by separate deeds executed at the same time, conveyed to his son G., in fee, land with a grist mill, &c. thereon, situate on the east side of the stream, and to his son W., in fee, land on the west side, with a fulling mill, &c. thereon: the deed to G. contained a clause excepting and prohibiting the right of carrying on upon the premises granted to him, the business of fulling or dressing cloth, &c., and also the right of using the water of the stream for any purpose other than grinding grain, when the same should be necessary or useful to W., his heirs, &c., for the fulling, &c. of cloth upon the premises conveyed to him by M., by deed of even date; the deed to W. contained a clause excepting cmd prohibiting the right of using the waters of the Walkill for tu/rmng am/y wheel not used or useful in fulling, dyeing or dressing cloth. Simultaneously with the execution of these deeds, G. and W. executed each to the other his bond, conditioned for the observance of the exceptions and prohibitions contained in his respective deed. Subsequently W. conveyed his premises by deed, containing no restrictions as to the use of the water, and his grantee converted the fulling mill into a grist mill, and used the water of the stream to propel it. On bill, filed by the heirs of G. to restrain him from so using the water, Held, 1. That as against the defendant the deeds and bonds were not to be construed together as forming one instrument. 2. That the clause in the deed to W. restricting the use of the water, did not create a condition, exception or' reservation. 3. That it could not be construed as a covenant, limiting the use of the property conveyed. 4. That this clause -was a mere prohibition of the use of the thing granted, and as,such, void.,
    Moses Phillips, the grandfather of the plaintiffs, Harriet and Adeline, was the owner of a tract of land, in the town of Walkill, county of Orange, lying upon a stream called the Walkill. Upon these premises were situated, on the east bank of the stream, a grist mill and oil mill; and opposite, upon the west bank, an establishment for the fulling, dyeing and dressing of cloth; all belonging to Moses Phillips, and all supplied with water, by means of a common dam erected across the stream above. -In October,.1805, Moses Phillips made a distribution of his property among his children; among whom were Gabriel N. Phillips, the father of the plaintiffs, and Williams Philips, under whom the defendant claims. The premises on the east side of the stream, including the grist mill and oil mill, were, upon that occasion conveyed in fee to Gabriel 1ST., and those upon the west side, including the establishment for the fulling and dressing of cloth, to William. Both deeds were executed at the same time, and bore the same date.
    The deed to Gabriel 1ST. contained the following clause, viz: “Excepting and prohibiting the right of establishing or conducting, upon the premises aforesaid, the business of a merchant in buying and selling any goods, wares or merchandise, not the growth or facture of the same, or not usually bought and sold in the business of an apothecary; and also the right of conducting in any manner whatever the business of fulling, dyeing or dressing cloth; also the right of using the waters of the Walkill for the making of oil, or any other purpose, besides the grinding of grain for country use, when the same shall be necessary or useful to William Phillips, son of the said Moses Phillips, his heirs or assigns, for the falling, dyeing or dressing of cloth upon the premises, by the said Moses Phillips, and Sarah his wife, conveyed to him, by an identure bearing even date herewith.”
    The deed to William contained a corresponding clause, in the following words, viz : “ Excepting and prohibiting the right of using the waters of the said Walkill, for the turning of any wheel, not used or useful in fulling, dyeing or dressing cloth, or for turning a grindstone; and in the latter case, only when the said waters shall be unnecessary for the making of oil, or grinding of grain; also the right of establishing or conducting upon the premises aforesaid, the business of a merchant in buying and selling goods, wares or merchandise, not the growth or facture of the same.” These deeds 'were given partly in consideration of natural love and affection, and partly for a pecuniary consideration.
    Simultaneously with the execution of the deeds, the grantees, Gabriel if. and William, executed their respective bonds, each, to the other, in the penalty of five thousand dollars, conditioned for the faithful observance by them of the exceptions and prohibitions contained in their respective deeds. The bond of William to Gabriel H. was not produced upon the trial. That of Gabriel N. to William was produced by ° the plaintiffs. The condition of this bond, after reciting the respective conveyances and their object, was as follows : “ And whereas, the value of the said premises, so conveyed to the said William Phillips, depends much on the said establishment continuing unrivalled; and whereas, it being a matter of understanding and agreement between the said Moses Phillips and his said sons, that of them alone the said William Phillips, his heirs and assigns should conduct the business of fulling, dyeing and dressing cloth, the said Moses did, in the conveyance to the said Gabriel ¡N. Phillips, prohibit the right of conducting upon the premises conveyed the business of fulling, dyeing and dressing cloth: also the right of using the waters of the Walkill so conveyed for the making of oil, or any other purpose besides the grinding of grain for country use, when the same would be useful, of necessary to him, the said William Phillips, for the said business of fulling, dyeing and dressing cloth. ¡Now, therefore, the condition of this obligation is such, that if the above bounden Gabriel ¡N". Phillips, his heirs and assigns, shall abstain from conducting upon the premises aforesaid the business of fulling, dyeing and dressing cloth, and also from the use of the waters of the said Walkill, in conformity with the said prohibition, then this obligation to be void; otherwise to be and remain in full force and virtue.”
    Moses Phillips afterwards made his will, by which, after certain specific bequests, he devised one fifth part of the residue of his estate to Gabriel ÜST. Phillips, and the remainder equally to his four other children. Gabriel ¡N. died in March, 1849, leaving the plaintiffs, Harriet Craig and Adeline L. Phillips, his only children and heirs at law.
    In July, 1844, William Phillips together with his wife conveyed, by deed, the portion of the premises so conveyed to him by his father, upon which the establishment for fulling and dressing cloth was situated, to his two sons, William N. and Thomas L., in fee. This deed was absolute and unconditional, and contained no restriction whatever upon the use to be made of the waters of the Walkill. In September, 1844, William N. and Thomas L. Phillips executed to the defendant a mortgage upon the premises so conveyed to them, to secure the payment of the sum of $1500. This mortgage was afterwards foreclosed, and the defendant became the purchaser of the premises at the mortgage sale, and received from the sheriff a deed therefor. Neither the mortgage nor the sheriff’s deed contained, or alluded to, any restriction in the use of the waiters flowing upon the premises. After the conveyance by the sheriff, and before the commencement of this suit, the defendant converted the cloth dressing establishment into a grist mill, and used the waters of the Walkill for the purpose of operating it; and this suit was brought to restrain him from such use of the waters, upon the ground that it was a violation of the exception or prohibition contained in the deed from Moses to William Phillips. The complaint alleges that from the time of the conveyance by Moses Phillips'to him, until his death, Gabriel H. claimed and exercised the sole and exclusive right of using the waters of the Walkill, upon the premises so conveyed to him by Moses Phillips, for the grinding of grain. This allegation is denied: but the answer admits that there had been a grist mill upon the premises conveyed to Gabriel, from the date of such conveyance to the time of the answer, which had been during most of the time in operation. There had been no grist mill upon the west side of the stream, until the defendant changed the cloth dressing establishment into one.
    Upon this state of facts, the supreme court, at special term, gave judgment for the plaintiffs, and granted the relief sought by them. On appeal to the general term in the second district this judgment was reversed, and judgment rendered in favor of the defendant. From this judgment the plaintiffs appealed to this court.
    
      J. S. Wilkin, for the appellants.
    
      William Fullerton, for the respondent.
   Selden, J.

It is insisted, on the part of the plaintiffs, that the deeds from Moses Phillips to his two sons, Gabriel N. and William, and the mutual bonds of the latter, having all been executed at the same time, and designed to carry out a specific object, should all be construed together, as parts of a single transaction. But the rule, by virtue of which separate written instruments, bearing the same date and relating to the same subject matter, are sometimes united, and construed as a single instrument, has never been, and cannot with propriety be, extended to such a case. It is not sufficient that the date of the instruments and the subject matter are the same. There must also, for obvious reasons, be an identity of parties. This is in accordance with the rule as laid down in the cases. In Cornell v. Todd, (2 Denio, 130,) Judge Bronson says, It is undoubtedly true, that several deeds or other writings, executed between the same parties, at the same time, and relating to the same subject matter, and so constituting parts of one transaction, should be read and construed together, as forming parts of one assurance or agreement.” In that case, although the parties to the deeds were the same, and they bore date on the same day, the court refused to construe them as one instrument, merely because they conveyed different parcels of land. -,The reasons against uniting the instruments, in this case, are much stronger than in that. The fact that the parties are different is an insuperable objection. As the provisions of all the instruments where the rule is adopted, are to be incorporated into one, of course, only those who have executed all the parts, can be held to have executed the complex whole. ,

The deed, therefore, from Moses Phillips to his son William, upon which the questions in this case arise, is to he construed by itself: although the circumstances under which it was executed, and among them the simultaneous execution of the other deed and bonds, may no doubt be resorted to, for the purpose of aiding in its construction, so far as there, may seem to be any thing equivocal in its provisions.

What then is the nature of the clause in that deed which contains the exception or prohibition relied upon by the plaintiffs ; and-what is its legal force and effect? It is clear that the clause does not create a condition. Conditions are not favored by the law; and hence they must be clearly expressed. It is true, that no precise form of words is necessary to create them. The words, upon condition; provided; and if; so that; or other equivalent words, will be sufficient. But there must be, some words, which, ex vi termini, import that the vesting or continuance of the estate is to depend upon the supposed condition. There are, in this case, no words which can receive such a construction, or which in the most remote degree indicate such an intent.

Unless, therefore, the clause in question is obligatory upon the grantee as a covenant, which I will consider hereafter, it must have force and effect, if at all, as an exception or reservation. Although these terms are frequently used as substantially synonymous, yet they are in reality different; and some notice of the distinction between them is essential to a- clear analysis of the present case. Perhaps the difference cannot be better stated than in the words of Shepard. He says: A reservation is a clause in a deed, whereby the grantor doth reserve some new thing to himself out of that which he granted before. This doth differ from an exception, which is ever part of the thing granted, and of a thing in esse at the time: but this is of a thing newly created, or reserved out of a thing demised, that was not in esse before.” (Shep. Touch. 80.) It will be seen, therefore, that a reservation is always of something taken back out of that which is clearly 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 upon it. An exception, on the other hand, must be a portion of the thing granted, or described as granted, and can be of nothing else ; and must also be of something which can be enjoyed separately from the thing granted. (Shep. Touch. 77, 78; Cunningham v. Knight, 1 Barb. S. C. Rep. 399; Starr v. Child, 5 Denio, 599.)

In view of this distinction, it is plain that there is' in this case no reservation. Ho new interest or right is created or reserved to the grantor, or to any other person, out of or springing from the estate granted. The most which can be claimed is that the right exercised by the defendant, of using the waters of the Walkill for operating a grist mill, was never conveyed to William Phillips, but was excepted out of the grant to him. Does the clause in question, then, create a valid exception ? It is, as we have seen, essential to every good exception, that the thing excepted be a part of the thing granted, that is, of that which is included in the general description contained in the grant. But here is no exception of any fart of the estate. The whole is conveyed, including the right to use all the water flowing over the land granted, provided it be used in a certain way, viz. in the fulling, dyeing and dressing of cloth. The object in inserting the clause in question was, not to except out of the grant any portion of the water flowing in the western half of the stream, but to prevent competition in the business of grinding grain. This- is apparent, from the clauáe itself, but is rendered still more evident by reference to the terms of the bond.

This is very different from an exception. It is a mere limitation of the use which the grantee shall make of the thing granted—a naked prohibition. No right to the use of the water is saved to the grantor. This prohibition is inconsistent with the title conveyed by the deed, and is clearly void. If one conveys land in fee simple, and neither excepts any part nor reserves anything to himself out of it but restricts the grantee to a particular use of the land, this restriction is void, as repugnant to the proprietary rights of an owner in fee. Such a restriction may be imposed, and would be good as a condition or a covenant, but in no other form. This is a parallel case.

It has been already shown, that the prohibition in this ease does not amount to a condition. It is, I apprehend, equally clear that it cannot be construed to be á covenant. There are no words which, upon any construction, can be held to import a covenant. It is true, the law will sometimes imply a covenant, where none is expressed, for the purpose of giving effect to the intent of the parties. But the plaintiffs here claim that the prohibition in question was inserted, for the benefit not of the grantor, but of Gabriel N. Phillips, the ancestor. The court then is called upon to imply a covenant in favor of a person not a party to the deed. There is, I apprehend, no precedent for such an implication.

It is well settled, that an exception or reservation to a third person, not a party to the deed, is void. (Shep. Touch. 80; Co. Lit. 47 A ; Moore v. The Earl of Plymouth, 3 Barn. & Ald. 66; Hornbech v. Westbrook, 9 John. 73.) The same is true of a condition, in favor of a stranger to the deed. (Jackson v. Topping, 1 Wend. 388; Co. Lit. 214; Shep. Touch. 120.) It would scarcely be in harmony with these rules to create, by mere legal implication, a restriction by way of covenant, which would be void in any other form. The law will never, I think,* imply a covenant in favor of a stranger to the deed; were it possible in this case, consistently with established rules, to connect the two deeds and bonds together, and construe them all as a single instrument, the conclusion 'might be different. But if that were done, the prohibitory clause could not be held to amount either to exceptions, reservations or conditions, although it would, I am inclined to think, be possible to raise upon them, by implication, mutual .covenants on the part of the grantees, to abide by the terms of the respective restrictions. But construing the deeds separately, as we are obliged to do, it is clear that this cannot be done. The only remedy of-the grantees is upon the bonds.

This conclusion, drawn from the previous reasoning, renders it unnecessary to consider any of the questions in respect to the transfer to Gabriel 1ST: Phillips of the rights supposed to have been reserved by Moses Phillips, because no such rights were reserved.

The claim set up in-the complaint to a right by prescription to the exclusive use of the waters of the Walkill, for grinding grain, is denied by the answer, and is wholly unsupported by the proof.

The judgment of the general term must be affirmed.

All the judges, except Ruggles, who did'not hear the argument, concurred.

Judgment affirmed.  