ÍTAPTOH, J.
The first question to be determined in this case is, whether tlíe exceptions contained in Chouteau’s deed to Strother were as large as the grant itself, whether the land previously sold by Chouteau embraced the entire tract conveyed to Strother. If this be determined in the negative, all the other-points in the case become immaterial.
• It is contended on the one side, that Strother’s deed embraced the whole original concession, and as that concession extended into the field lots some eighteen acres, there was at least this much for the deed to operate on, admitting that all the land confirmed, and all outside of the field lots, had been.conveyed by Chouteau previously to his deed to Strother. If this be denied, it is further contended that the previous deeds of Chouteau did not cover all the land within the'concession, but that there were narrow strips of ground still belonging to Chouteau, and not embraced in his previous conveyances, which will pass to Strother under his deed. On the other hand it is urged that a fair-construction of Chouteau’s deed must confine the limits of the land granted by that deed to the eastern boundary of the field lots, that line being specified in the deed as -the western boundary of the grant, and Mr. Chouteau having abandoned all claim before the board of commissioners to any portion of his original concession lying within the field lots. It is also urged on this side that the terms of Chouteau’s deeds to Lewis, Carr, and others, previous to his-deed to Strother, clearly embrace all the land lying within the confirmed part, of his concession.
The concession to Chouteau was made in 1799, and was described as running' on the bights of the Mississippi at the distance of six arpents from the river. It was surveyed in 1803, and included about 133 arpents. In 1809, when this claim w-as before the board of comnrissioners, and when Chouteau had previously conveyed a portion of it in the southwest corner to Mr. Lewis, he appeared before the board and relinquished that part of the claim which inter[270]*270fered with the field lots, being then supposed to be about 39 arpents, leaving of the original concession about 93 arpents. The claim in this condition was confirmed. Chouteau by his deed to Strother in 1836 bargained and sold the following tracts of land granted to said Pierre Chouteau by Charles D. Delas-sus; “ beginning at Roy’s line north to Labeaume’s south line and extending from the river to the common-field lots west, it being intended hereby to convey to the said George F. Strother, his heirs and assigns, all the land contained within said concession, except that heretofore sold by the said Pierre Chouteau, according to his said several contracts, to be limited by the notes and bonds marked and fixed by the intention of the said parties at the period of contracting.”
In Chouteau’s deed of 1818 to A. P. Chouteau, the general description of the concession, a portion of which only was included in that deed, was couched in nearly the same language. That deed conveyed a parcel of land, “ situate at a place called La Grange de Terre, containing 30 arpents in superficie, and bounded on the south by land which the grantors had sold to W. C. Carr, east by the river Mississippi, west by the 40 arpent lots, and north by land which the said P. Chouteau acquired of Joseph Brazeau, and the ditch of the land formerly belonging to Louis Labeaume, and in which aforesaid 30 arpents or more, if it shall be found there is included, all the mould called La Grange de Terre, which parcel of land above sold being the part the most north, and the residue of the concession, whicn was granted to said Chouteau by Mr. C. D. Delassus,” <&c.
My opinion is, that Mr. Chouteau did not intend to convey, by his deed to Strother, any part of his original concession included in the field lots, and this opinion is founded upon various reasons, which I shall merely enumerate.
He had abandoned all title to any portion of the common-field lots before the board of commissioners, and he could not have entertained the idea that, notwithstanding such relinquishment, he still had any pretensions there.
The word “concession” in the deed is evidently not used in its strict or literal meaning, but as an equivalent for confirmation, or the concession as modified by the board of commissioners. In this restricted sense the term concession is used in all the deeds relating to this land. In the deed to his son, A. P. Chouteau, he bounds his concession as he does in the deed to Strother, by the forty arpent lots, and yet he calls it the residue of his concession, which it certainly was not, if by the term concession he meant a part of the forty arpent lots originally included within it.
A critical examination of the language of the deed leads to the same conclusion. He conveys the following tract of land, granted to said Pierre Chouteau by Delassus, the Spanish commandant, namely : A tract “ beginning at Roy’s line north, to Labeaume’s south line, and extending from the river to the common-field lots west.” Here is a full and complete description of the land, a description not embracing the original concession, but the concession as modified by the board, and as claimed by Chouteau. There follows not any further a more minute description of the land, but an explanation of the intentions of the parties as to-what portions of this land wore to be conveyed. “It being intended hereby to convey to the said G..F. Strother, his heirs aDd assigns all the land within said concession, except” &c. What concession? surely the one just before described, and which was bounded on the west by the common-field lots.
Again, would it not argue most remarkable remissness, to self-interest, nay, absolute fatuity, to suppose that Strother would take a deed for a chance title in the common fields, and yet, in that very deed, in terms, exclude the common fields from his grant, by making it his western boundary ?
To sustain the plaintiff’s proposition, wo must reject the descriptive portion of the deed* in which the common-field lots is specified expressly as the western boundary of the land granted to Strother.
But the deed to A. P. Chouteau would seem to settle this question. It is immaterial in what light we view the term “concession," or how we regard the defined limits “extending from the river to the common-field lots,” for both the said concession and the western boundary of the common-field lots are to be found in both deeds, and which ever construction v/e choose must prevail in both.
[271]*271It is said, however, that the previous conveyances of Chouteau, to-wit : those to Lewis, Lisa, Carr and. A. P. Chouteau did not convey all the concession outside of the common-field lots, or at all events that whether they did .or not was a question of fact which the instructions of the court did not leave open for the consideration of the jury. There is certainly much difficulty in locating these several deeds, there may be disputes relative to this matter not necessary to be particularly investigated here, hut a comparison of the deeds with the maps or plats has satisfied me, that there can be no serious difficulty except in relation to Carr’s extension west. For however uncertain Lewis’ beginning point may be¡ his land certainly runs with Chouteau’s south and west lines, how far, is not material. It takes in the southwest corner of his tract. Then Lisa and Bates are bounded by him, and Carr by them, and A. P. Chouteau by Carrón the south. How, Carr’s tract is rendered indefinite by reason of its calling only for six arpents in depth, when the fact is, as we learn from the surveys, in evidence, that on his north end there is a little more than six arpents between the river and the common-field lots. Without undertaking to suggest any solution of this difficulty, I think Mr. Chouteau’s deed to his son conclusive on this point against the plaintiff, who, according to his own showing, is a naked trustee for Chouteau’s daughter-in-law and grandchildren.
This deed, which was made in 1818, describes the land conveyed therein as “ the residue” of the-concession. This ought to conclude the grantor. He certainly did not consider that there were any vacancies in the concession, after his deeds to Lewis, Lisa, Bates and Carr and his son, for in the last deed he expressly declares the tract thereby conveyed to be “ the part most north and the residue of the concession,” &c. In whatever sense this term concession be used, whether as embracing the entire grant from the Spanish commandant or that part of it which had been confirmed, it is equally clear that the result is not changed. The same word is used in the grantor’s deed to Strother and with the same meaning.
The supposition then, that Strother was dealing in chances — that he was buying a doubtful title in the common fields or taking the risk in gaps in the titles outside of these fields — is wholly repelled not only by the strongest language in the deed itself, but by all the circumstances preceding, attending and following the conveyance.
In 1822, a contract was executed between Chouteau and Strother and reduced to writing, by which Chouteau agreed to convey to Strother “ a tract or parcel of land, lying upon the Mississippi, extending upon the bank of the river from the tract of land sold by the said Chouteau to Carr to a tract formerly sold by Labeaume to W. Christy, according to conveyance from Brazeau to Lab'eaume, and running with each of their lines back to embrace the big mound. The said tract of land to contain at least 30 arpents, with covenant against incumbrances and all other reasonable covenants.” The tract hero described is obviously the same which Chouteau had conveyed to his son in 1818 by a deed which was then standing on the records of St. Louis county. What becomes then of the argument derived from our statute, which prohibited under penalty of fine and imprisonment, the conveyance of a title previously conveyed to another? If this statute -was to prevent Chouteau from attempting a conveyance of this land in 1826, because of his previous conveyance in 1818, why did it not have that, effect in 1822 when, beyond all controversy, he treated it as his own and executed a formal contract for its conveyance ?
Chouteau undoubtedly agreed to convey this land in 1822 to Strother. He did attempt to convey some portion of the concession in 1826; a survey of the land so conveyed was made in 1826 in his presence and under his directions and embraced the very tract previously conveyed to his son; possession wras given to Strother, who sold the land to a company, and this company has been in possession for nearly twenty years. And although Mr. Chouteau obtained a reconveyance of this land from his son in 1838, that deed was not placed on record until 1845, on the same day that another deed from himself to the plaintiffs, Bogy and others, from the wife of A. P. Chouteau to Bogy was recorded; this action of ejectment was brought about a month thereafter.
[272]*272I am aware, that these circumstances, supposing them to b'e incapable of contradiction by counter proofs, will'ayail Strother’s assignees nothing in an action of ejectment. They are merely alluded to as rebutting the positions which were strongly insisted on, that Strother’s deed was the result of a speculation in the common fields. On this point,. I am fully satisfied. I entertain no doubt but that Strother thought he was buying and Chouteau supposed himself to be conveying the identical tract of land which Chouteau had conveyed in 1818 to his son. Why such a purchase and conveyance should be made with an outstanding deed in another, or why it should be couched in such an equivocal deed it is useless to inquire. Suppositions might be made entirely consistent with good faith on both sides, but I shall not stop to examine them. Por some cause, Chouteau considered himself at liberty to treat this title as his own, from, 1333 to 1836.
He contracted to convey it in 1823, and attempted to convey it in 1826. The only question is, did he succeed ? Have Strother’s assignees the legal title ? Por if they have not, it matters not in this form, of action, what may be their equitable rights.
The deed from Chouteau to Strother, after purporting to convey the whole concession from the river to the common fields, and from Labeaume’s ditch to Roy’s north line, excepted from its operations all the land in the concession previously granted by Chouteau, and it turns out, that all the land had been granted ¡ that in addition to the grants to Lewis, Bates, Lisa’and Carr, there was a deed on record, conveying the residue to his son, A. P. Chouteau. Was Strother’s deed then waste paper, or was it operative to transfer the title which Chouteau obtained from his- son in 1838 ?
The doctrine of exceptions about which a good deal has been said at the bar, affords no decisive answer to this question. If a man conveys a tract of land, excepting such parts as he has previously conveyed, the exception amounts to nothing, for he cannot convey that which does not belong to him. And if the parts excepted embrace all the land, the deed'must stand merely as a conveyance of a tract of land to which the grantor has no title. No question can arise on such a deed, except in the event of an after acquired title by the grantor. That is the decisive question in this case.
But before examining this question, it is proper to explain more fully, our views concerning the common law doctrine of exceptions in a deed, upon which a good deal of stress has been laid in the argument. The learning on this subject is to be found in Touchstone. In that work, an exception is defined to be “a clause in. a deed, whereby, the feoffer, donor, grantor, lessor, &c., doth except somewhat out of that which he had granted before by the deed.” It is, therefore, laid down, that an exception to be vaild, must be part of the thing only, and not all, and it must be of such a thing as he that doth except, may have and doth properly belong to him. “If the exception extends to the whole thing granted or.demised, it is voidThis maxim seems to rest upon the case of Dorrell v. Collins, Cro. Eliz. 6, where the master and scholars of the college of Singfort, were seized of the manor of Hadley, and let all their lands in Lambhurst, except the manor of Hadley, and the master and scholars had no other lands in Lambhurst, except the manor of Hadley, and the court held that the manor passed.
It may appear a little absurd to put such a construction on a deed; for the leading rule in the construction of all contracts, is to ascertain the intention of the parties, and to say that a grantor intends to part with that which in his deed he expressly says, he does not intend to convey, but m'eans to reserve,, would seem to run counter to this rule. But a closer observation will satisfy us that this rule of the common law, for the construction of exceptions, like most of the others which have been engrafted in that system, is founded on common sense and common honesty. There is evidently, in such a deed as that referred to in Dorrell v. Collins, a manifestation of two intents, directly conflicting, which must either annihilate the conveyance, and make it a nullity, or one of which must yield to the other. There are other rules, which then apply to make the deed stand. The first clause in a deed and the last in a will must govern, and a deed must be so construed as to stand, rather than to fall. - The grantor intends to part with something. The deed is not made, and a consid[273]*273eration advanced for nothing. It is to "be construed most strongly against the grantor. If obscurity has arisen, it is but right that he should bear the loss. As he placed the matter in doubt by indicating two contradictory intents, both of which cannot stand, all these rules or principles alluded to above, require that the deed shall stand — that something shall pass, and as we cannot separate the excepted portions whore they cover the whole grant, the whole land passes.
It is plain that Chouteau’s deed to Strother, does not contain any such exception as is referred to in the case of Dorrell v. Collins. Chouteau does not reserve anything to himself. lie merely refers to his previous grants, and declares it not to be his intention to pass by that deed, what he had previously sold to others. This would have been the effect of the deed, had no'such declaration been made. The exception is nugatory for any purpose, unless it be to prevent the application of the common law or our statutes, in effecting a Transmission of the title, he subsequently acquired from A. P. Chouteau, and of this we will now inquire.
It must be admitted, that a very great diversity of opinion has existed, both in adjudged cases, andin the treatises of law writers, as to what description of conveyance will pass on after acquired title. Nor are they much better agreed as to the principles upon which such a transmission of title is effected, in cases when all acknowledge the subsequently acquired title passes.
By some, it is contended that no conveyance except the common law feoff-ments or line and recovery, could have the effect of passing a legal estate, which the grantor had not at the time, and that neither a general warranty, nor any mere estoppel could affect the legal title.
On the other hand, it is maintained by the decisions in Now York and Pennsylvania, and in all the New England States, that a conveyance under the statute of uses, a bargain and sale, if accompanied with a covenant of general warranty, will operate upon a title which the bargainer did not have at the time of the conveyance. The new title is supposed to enure by way of estop-pel, to use of the grantee and his assigns. Although nothing passes by the deed, as the grantor had nothing, yet, as the grantee may recover the value of the land upon his covenants, he is estopped from using his subsequently acquired title. At the same time it is conceded, that where the covenant is restricted to a mere warranty of the title granted or released, no such con sequence follows : where the grantor does not undertake to convey an indefeasible estate, but only such title as he has, and agrees to warrant it only against all claims derived from himself, lie is understood to refer to existing claims or incumbrances, and not to any title he might afterwards derive from a stranger. White v. Patten, 24 Pick. 324; Comstock v. Smith, 13 Pick. 116; Jackson v. Bradford, 4 Wend. 622; Jackson v. Hubbell, 6 Cowen, 613; Dart v. Dart, 7 Conn. R. 256; Chew v. Barnett, 11 Serg. & Rawle, 389.
It is not material in this case that the effect of a general warranty in a deed should be determined, as there was no such covenant in Chouteau’s deed. We have a statute, however, in relation to Conveyances which is designed to have a bearing on this subject.
The Revised Code of 1S25, contains this provision : “If any person shall sell and convey to another by deed, the conveyance purporting to convey art estate in fee simple absolute, in any tract of land or real-estate, lying and being in this State, not then being possessed of the legal estate or interest therein, at the time of the sale and conveyance, but after such sale and conveyance, the vendor shall become possessed of, and confirmed in the legal estate to the land or real estate, so sold and conveyed it shall be taken and held to be in trust, and for the use of tlie grantee or vendee, and the conveyance aforesaid, shall be held and taken, and shall he as valid as if the grantor or vendor had the legal estate or interest at the time of said sale or conveyance.”
This statute applies to cases where the vendor is not, at the time of the conveyance, possessed of the legal estate or interest in the land conveyed, but afterwards becomes possessed of or confirmed in the legal estate. It is argued, however, that the act is limited to cases where the vendor has the equitable title, and does not read a case where the vendor has no title at all.
The language of the act requires no such limitation. A vendor has not the [274]*274legal estate, either where he has an. equitable title only, or where he has no title at all. There is nothing in the terms of the act which authorizes a restriction of its provisions to only one of these conditions. Is there anything in reason or justice, which requires such a limitation ? I confess nayseif unable to perceive any. I think it was the intention of the Legislature to give the legal title to such as had acquired an equity by the conveyance, and this did not depend upon the character of title, which the vendor had at the time of his deed, but upon the character of the deed itself. A deed may be upheld in equity, although the grantor had nothing at the time of its execution, if the consideration be sufficient and it is against good conscience in the vendor to permit it to be defeated. Thus the partition or settlement by heirs of a mere expectancy has been upheld in chancery (1 Yosey, 391), and where it has been accompanied with a warranty, it has been regarded as transferring the title even at law. Jackson v. Bradford, 4 Wend, in Pennsylvania, where they have no courts of equity, and the action of ejectment is therefore, not confined to mere legal titles, a bargain and sale has been held to pass the after acquired titles, upon this very principle. Equity will enforce a covenant to convey, and a fortiori a conveyance. McWilliams v. Nisby, 2 Serg. & Rawle, 515. Our statute was intended to do what the courts in Pennsylvania have done in the absence of a chancery system.
It then depends upon the character of the deed, whether it is to be affected by our statute. It must be a conveyance, purporting to pass the fee simple absolute.
This language is not certainly used in a technical sense. The term fee simple is known at the common law as one which defines the quantity of estate. It is used in contradistinction from a fee-tail, a life-estate or a term of years. It is evidently, not employed in this sense in this provision of the act. It was surely not intended, that a quit-claim deed, although the deed uses language to pass the fee, and not any smaller estate, would, therefore, pass a new title not belonging to the grantor when he makes the deed. It was hardly intended to apply to a deed, conveying all right, title and interest of the grantor. Such a deed will, undoubtedly, pass the land itself, if the grantor has an estate therein, at the time of the conveyance, but it passes no estate which was not then possessed. Brown v. Jackson, 9 Wheat. 452. Nor would it be in accordance with the manifest intent of such conveyance, that after acquired title should pass. So where a party had a vested interest, and also a contingent remainder in lands, and conveyed “all his right, title and interest,” the deed was held only to convey his vested interest, although in this case the deed contained a general warranty. The warranty was held to be only co-extensive with the grant, and therefore, not estoping the grantor from claiming the contingent interest when it vested. Pell v. Jackson, 11 Wend. 110.
A deed purporting to convey a fee simple absolute, is not then, in my opinion, a deed which merely conveys something more than a fee-tail, or life-estate, or term of years. The statute intended something more than this. The term absolute gives a clue to the meaning of the whole phrase which I think is drawn from common usage, and not from the technical phraseology of law writers. Every man unlearned in the law understands what a deed conveying a fee simple absolute is. They understand it, as I humbly apprehend, to be a deed which purports or professes to convey an indefeasible title — not a quitclaim deed, not a deed merely transferring the grantor’s interest, be it more or less, but a deed conveying the land itself, and professing to convey it in such a manner that the grantee is not to be disturbed in his possession by any one.
It may be then that our statute was intended to settle a question, which had been much discussed, and about which there was certainly great conflict of opinion"; whether a general warranty would operate to transfer a subsequently acquired legal title. It, undoubtedly, settles this question in the affirmative, and I think it 'goes further. It puts the whole question upon principles of sound sense and strict justice. It does not limit its operation to deeds containing covenants of general warranty, but it extends to every deed, which purports to convey a fee simple absolute, whether it contains a general warranty or not. It is easy to imagine numerous cases in which there are con[275]*275veyances obviously intended and purporting to convey absolute titles, but which omit any covenants of warranty. It does not reach, and ought not to apply to a deed, where the grantor expressly guards against such inference, by inserting a special warranty against his own acts, and those claiming under him.
Chouteau’s deed to Strother, purports to convey a tract of land, described as extending from Roy’s line north to Labeaume’s south line, and from the river to the common-field lots west. The exception of all this tract, in a subsequent part of the deed, from its operation being repugnant to the main purpose of the deed, as we have before observed, is nugatory and void. It is said that if a man grant his house, chambers, cellars and shops, excepting his shops, this is no good exception, for as the shops are expressly granted, the exception of them is repugnant to the grant. “ Or if the exception be of such a thing as the grantor cannot have nor doth belong to him by law; as if a lessee for years assign over all his term in the land, excepting the timber, trees, earth or clay, this exception is not good. In this instance the exception is void for want of interest or ownership in the thing excepted.” Shep. Touch. 7. These principles as we have have already shown, apply to Chouteau’s deed. The deed would have been precisely the same in law if the execution had been omitted. We treat it then as a deed for a specific tract of land to which Chou-teau had no title. Did it purport to convey a fee simple absolute ? The deed contained this special covenant: “ and the said Pierre Chouteau and Brigite, his wife, do hereby, warrant the same free from the claim of themselves and all persons claiming under them, except those who may have deeds recorded in the clerk’s office of St. Louis, according to the modifications of said claims, aforesaid described.” Treating the exception to the covenant as a mere nullity, it was then merely a covenant against the claims of the grantor, and those claiming under him. It was no warranty against existing incum-brances. It was a mere quit-claim deed. It did not purport to convey a fee simple absolute.
The questions in relation to Mrs. A. P. Chouteau’s interest, and the supposed estoppel in the deed from Pierre Chouteau to Bogy, do not seem to be material in the view we have taken of the case.
Mrs. Chouteau’s interest was either a right of dower or a community interest under the marriage contract. In either case it was not a iegal estate upon which ejectment could be maintained. The deed from Pierre Chouteau to A. P. Chouteau, was made after the introduction of the common law, and if Mrs. A. P. Chouteau, by virtue of her marriage contract, acquired a right to one-half of the land so. conveyed, it was only an equitable right. Neither a private contract nor the Spanish law could control thedaw of Conveyances.
If two persons should now agree that all the lands which the one or the other acquires, should belong to both in common, that agreement will not prevent the one to whom a conveyance is made, from having the legal title. The rights of the other under the contract, can only be enforced in equity. The marriage contract between A. P. Chouteau and his wife would only give the wife an equitable title to one-half the land conveyed to the husband, after the introduction of the common law. Judgment reversed and cause remanded.