Jones v. DeLassus

• Decision Date: 31 October 1884
• Citation: 84 Mo. 541
• Parties: JONES et al., v. DELASSUS, Appellant.
• Court: Missouri Supreme Court

84 Mo. 541

JONES et al.,

v.DELASSUS, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Perry Circuit Court.--HON. J. L. THOMAS, Judge.

AFFIRMED.

D. H. McIntyre, with J. Perry Johnson and John B. Hilmes for appellant.

It is competent for a party who is the grantor of an estate to create an easement in his own favor, either in gross or annexed to his own land, by a reservation thereof inserted in his deed of the estate; or it may be done, though in terms it be an exception. Bowen v. Conner,6 Cush. 132. The terms “reserve” and “reservation” are often used as synonymous with ““except” and “exception,” when the thing to be thereby secured to the grantor is a part of the granted premises, and when thus used, they are to be construed accordingly. Pattee v. Hawes, 13 Pick. 323, 326; Vickerine v. Bushnell, 13 Me. 289; Sprague v. Snow, 4 Pick. 54; Whitaker v. Brown, 46 Pa. St. 197; Greenleaf v. Booth, 6 Peters, 302, 310; Thompson v. Megroy, 4 Johns. 81. As to the construction of conveyances containing “reservation” and “exception,” and as to what passes under these words in a grant similar to that now under consideration, reference is made to Woodcock v. Estey, 43 Vt. 515; Emmerson v. Morney, 50 N. H. 315; Munn v. Worrall, 53 N. Y. 44; Handy v. Foley, 121 Mass. 258; Lacy v. Green, 84 Pa. St. 514. Words of reservation in a deed may operate by way of exception and have that effect when the subject of the reservation is a thing corporate and in esse, when the grant is made. When in a deed as made, the grantor “saving and reserving nevertheless for his own use, the coal contained in the said piece or parcel of land, together with free ingress and egress by wagon road,” etc., held an exception and that the entire perpetual property therein remained in the grantor. Whitaker v. Brown, 46 Pa. St. 197; State v. Wilson, 42 Me. 9. Although possession, or the right of possession in general, follows the delivery of a deed, it is competent for the grantor to reserve the possession to himself for a determinate or indefinite period either in the deed or by a contemporaneous instrument not merged in or extinguished by the deed, and such reservation does not constitute a tenancy under the grantee. Mott v. Coddington, 1 Robt. 267; Provost v. Calder, 2 Wend. 517; Dygert v. Mathews, 11 Wend. 36; Jackson v. Swart, 20 Johns. 835; Jackson v. Bull, 1 Johns. Cases 91.

John H. Nicholson for respondent.

The circumstances under which an instrument is made may be looked to, to aid in its construction. Gathwright v. Callaway Co., 10 Mo. 663-4; Picot v. Page, 26 Mo. 418. In determining the meaning of a written instrument, the acts of the parties thereto are entitled to great weight. Patterson v. Camden, 25 Mo. 13. If DeLassus had intended to reserve the exclusive use of the landing he would have used the word “exclusive.” “The court will not introduce into a deed words which are not to be found there, nor strike out words which are there, in order to make the sense different.” Broom s Legal Maxims (7 Am. Ed.) p. *545. Doubtful words and provisions are to be taken most strongly against the grantor. 5 Am. Dec. 154, 504; Nelson v. Brodhack, 44 Mo. 596.

BLACK, J.

This was an action of ejectment for a tract of some two acres of land in Perry county. The property is known as Bailey's Landing, and is on the Mississippi river. The case made concedes that Ceron E. DeLassus and Joseph V. Beauvais were the owners as tenants in common of a large body of lands, of which this was a part. In 1852 they made to each other quitclaim deeds for the purpose, it is admitted, of making partition of their lands. These deeds convey the land described in each, without mention of the fact that they were tenants in common. The deed from DeLassus to Beauvais includes within the boundaries this parcel, and the habendum clause concludes as follow: “Saving and excepting to my wife and myself, and our legitimate descendants, the use and privilege of the landing on the Mississippi river on the first tract or parcel mentioned in this deed, and the warehouse now at the same, which we now enjoy and possess, so long as the same shall remain a steamboat landing.”

On September 23, 1855, Beauvais, by warranty deed, conveyed the lands allotted to him, to Francis L. Jones, in which deed there is also the following reservation or exception: “Saving and reserving, however, out of the first named tract in favor of Ceron E. DeLassus and wife and their legitimate descendants, the use and privilege of the land on the Mississippi river, and the warehouse now on the same, as same is reserved and excepted in a deed from said Ceron E. DeLassus and wife to said Joseph V. Beauvais, dated the 5th day of April, 1852, and for the time therein stated, that is, so long as it shall remain a steamboat landing.”

The evidence shows that DeLassus and Beauvais used and carried on business at the landing together, to the date of the deed to Jones; after that, Jones and DeLassus carried on a shipping business together, and after the...