The Hawaiian gazette., 1890-03-11

PttoCON W thO ohNtOA
the general description. Tiedman
Real Estate, SS43. Washburn r.
P, p. 645 ed. of 1850 Here the
part of the premises on King street
where the dwelling house stands is
excepted. 1t is a part of the land
granted to Hamauku, and would
go to him under the general des-
! cription were it not for the eXcep-
ton. But the difficulty in this case
is that it is not excepted to the
grantor and her heirs and made the
subject of a valid, independent
grant by her to the plaintiff Kahoo-
hull. If it were so, the plaintiffs
title would be good. But it is an
exception to a stranger to the deed
and without consideration moving
from him.
By the authorities Hoohuli would
take nothing.
In Corning VS.. Troy Iron and
Nail Factory, 40 n. Y, 209, Stephen
Van Rensselaer, conveyed a farm
without reservation or exception to
jeremiah Lansing. Lansing con-
veyed the same premises to David
Defreest excepting and always
reserving one acre of land on the
south side of the creek, ETC., unto
Stephen Van Rensselaer,, his heirs
and assigns forever" The Court
held that the exception in the deed
prevented this one acre from vest
ing in Defreest, but that it was
wholly imperative to vest in Van
Rensselaer, any title.
In West Point Iron Co. VS.. Rey-
inert, 45 NY, 707, the Court held
that ga reservation in a deed will
not give title to stranger, but it
may operate, when so intended by
the parties, as an exception from
the thing granted and as notice to
the grantee of adverse claims as to
the thing excepted or reserUed."
{" A reservation in a deed saving
to the public any right they may
have to take seaweed from the pre-
misses confers no right upon any
one having no other right" Hill
VS.. Lords, 4S Me-, SO Here the
Court say "such reservation in a
deed confers no rights, pr0priO
vigOre, upon any one. 1t merely
saves the grantor, upon his coven-
ant against membranes, from any
liability, if such rights have been
previously granted or acquired"
See also Richardson VS.. Palmer,
3S, n. H., 212: Ives VS.. Van
Auken, "a Barb, 566.
In Hornbeck VS.. Westbrook, 9
Johns, Y, deed contained pro-
viso that the inhabitants of ROches-
ter should be allowed to cut and
carry away wood from any part of
the land conveyed, etc. The Court
held the proviso to be null and
void. 4" If the inhabitants were
incompetent to take an estate at
law, by that name, a reservation to
them in a deed in fee to a third
person would be equally void. But
such a covenant or reservation to
any third person would be void.
A person who is not party to a
deed cannot take anything by it,
unless it be by way of remainder.
The grantor cannot covenant with
a stranger to the deed"
See Moore VS.. Earl of Plymouth,
8 B. and A., II.
1 am of the opinion that Peter
Kahoohuli, plaintiff, takes nothing
by the exception in the deed and
that the demurrer must be sus-
tained.
This view is strengthened by
the clause at the end of the deed
of the grantor Hama Haalilio,
wherein her husband, w. H. Ka-
hoohuli, in consideration of the
sum of twenty dollars paid to him
by st. John Hamauku, assents and
conveys all his right in the pro-
perty of his wife to st. John Ha-
mauku his heirs and assigns as
stated in this deed.
No assent by the husband to the
exception calling it a conveyance
to the plaintiff) can be shown, and
without it, the married woman's
conveyance of her land would be
void.
Demurrer sustained.