Schaefer v. Thompson

116 A.D. 775, 102 N.Y.S. 121, 1907 N.Y. App. Div. LEXIS 23

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 11, 1907
• Status: Published

Opinion

Gaynor, J.:

The plaintiff claims that the reservation clause-in the deed in respect of the right of way jvas personal to the grantor, and therefore ceased when he conveyed his land afterwards. I-t being plain and unambiguous, facts dehors may not be resorted to for its interpretation. It is not affected by the absence of the word “ heirs ” or other words of inheritance. A reservation by the grantor in a deed poll is deemed a grant by the -grantee to him, and operates as such (3 Wash, on Real Prop. 5th ed. pp. 461-2, 470-3 ; Reeves on Real Prop. p. 166; Claflin v. Boston & Albany Railroad, 157 Mass. 489 ; Stockbridge Iron Co. v. Hudson Iron Co., 107 id. 321). It was therefore necessary at common law for a reservation to be to the grantor and his heirs in order to make it perpetual instead of personal to him, that being the rule in respect of all grants in order to convey more than a life estate. But that rule was abrogated by statute in this State, and with us a grant without terms of inheritance conveys an estate of inheritance (1 R. S. p. 748, tit. 5, sec. 1).

The judgment should be affirmed.

Hirschberg, P: J., Woodward and Miller, JJ.,. concurred; Hirschberg, P. J., and- Miller, J., being also of the opinion that the language of- the reservation permits if it does not require the construction that the reservation of the right of way is to the grant- or’s heirs nnd assigns, as well as the reservation' of the right to project cornices ; Rich, J., concurred in result. t

Judgment affirmed, with costs.